Legal Profession and Legal Aid (Scotland) Bill: Stage 2
Item 2 is the third day of stage 2 of the Legal Profession and Legal Aid (Scotland) Bill. We will consider amendments to the bill from section 34 onwards, and will go no further than section 43.
I welcome Hugh Henry—the Deputy Minister for Justice—and his officials. Members should have the following documents in front of them: the bill as introduced; the marshalled list of amendments; and the groupings of amendments.
Section 35—Conduct complaints: duty of relevant professional organisations to investigate etc
Amendment 301, in the name of the minister, is grouped with amendments 302 to 306, 346 to 348, 352 and 353.
I apologise at the outset and say that there is a technical problem with the numbering of the various new sections after section 35. As a result, amendment 301 would be defective if accepted at stage 2 and would have to be corrected at stage 3. I therefore do not intend to move amendment 301 at this stage. It is a technical amendment anyway, and we will return to it at stage 3.
The rest of the amendments in the group have three main purposes. First, they will empower—
You have not moved amendment 301, so we have now to proceed to the question on section 35. At the appropriate point, we will come back to what you were about to say.
Amendment 301 not moved.
Section 35 agreed to.
I thank the minister for his clarifying comments of a moment ago.
After section 35
Amendment 264, in the name of the minister, has been debated previously.
Amendment 264 moved—[Hugh Henry]—and agreed to.
Amendment 302, in the name of the minister, is grouped with amendments 303 to 306, 346 to 348, 352 and 353.
The amendments in the group have three main purposes. First, they seek to empower professional organisations to obtain the documents and information that they need to investigate conduct complaints, or to review their decisions about such complaints. The proposed provisions mirror the powers that sections 13 and 13B will give to the Scottish legal complaints commission. Secondly, they will enable the professional organisations to freeze bank accounts when they have reasonable cause to believe that a practitioner has been guilty of financial impropriety. Thirdly, they will allow the professional organisations to recover expenses that they have incurred in obtaining court orders for the production of documents and explanations, and for freezing bank accounts. Under section 13A of the bill, the proposed commission already has that power.
Amendment 302 seeks to give powers to the professional bodies to examine documents and to demand explanations from a practitioner when they are satisfied that that is necessary for a conduct complaint to be investigated effectively, or for their decision on such a complaint to be reviewed. The professional bodies must give to the practitioner notice that requires them either to produce or deliver documents that are relevant to the complaint, or to explain matters to which the complaint relates. Those bodies may also give to complainers notice that requires them to produce or deliver documents in their possession or control, or to explain matters to which the complaint relates.
In addition, amendment 302 seeks to introduce a schedule that will set out the further powers of relevant professional organisations for which amendment 306 provides. That schedule will allow professional bodies to obtain documents by court order when a practitioner or a complainer has refused, or has failed, to produce or deliver them. When such an order has been granted and the professional organisation takes possession of the documents, it must serve a notice in which it gives relevant particulars and the date on which it took possession of the documents. The practitioner or complainer may apply to the court for an order for the documents to be returned.
Amendment 303 will enable a professional body to apply to the court for an order to freeze bank accounts that are held in the name of a particular practitioner or firm when it has reasonable cause to suspect financial impropriety. If the order is granted, the leave of the court will be needed for any payment to be made from such a bank account. The amendment will thus extend to all the relevant professional bodies a power that the Law Society of Scotland has under section 38 of the Solicitors (Scotland) Act 1980.
Amendment 304 seeks to permit the professional bodies to recover from practitioners any expenditure that they might reasonably incur in obtaining court orders for the production of documents or explanations, and to freeze bank accounts.
In circumstances in which a third party refuses or fails to produce documents or information following a request for it to do so, amendment 305 will allow a professional body to apply for a court order. An order is to be granted only when the court considers that the material is relevant to the investigation or report concerned, and that disclosure would be in the public interest. Legal professional privilege would continue to apply, so a third-party lawyer would not be forced to disclose confidential communications with a client unless the client consented.
Amendments 346 to 348, 352 and 353 seek to insert further amendments to the Solicitors (Scotland) Act 1980 into schedule 4 to the bill. Amendment 346 will repeal section 38 of the 1980 act as it relates to any element of dishonesty in relation to devolved advice, services or activities. It is intended that the repeal of section 38 will be completed by legislation in the United Kingdom Parliament that will repeal section 38 as it relates to the reserved matters that are referred to in section 47(2) of the bill. Section 38 will be replaced by the provisions in amendments 302 and 303.
Amendments 347 and 348 seek to amend sections 45 and 46 respectively of the Solicitors (Scotland) Act 1980 and are consequential on the repeal of section 38 of that act. They will simply replace references to provisions in that section with the full detail of those provisions. In that way, the repeal of section 38 of the 1980 act will not result in any change in the content of sections 45 or 46 of that act.
Amendment 352, which is also consequential, will extend the requirement for the Law Society's council to serve notice of its intention to recover expenses from a solicitor or an incorporated practice to circumstances in which it has taken action under sections 45 and 46 of the 1980 act.
Amendment 353 is a consequential and technical amendment that will ensure that the provisions of part II of schedule 3 to the 1980 act will continue to apply to circumstances in which action is taken under sections 45 and 46 of the 1980 act.
I move amendment 302.
Amendment 302 agreed to.
Amendments 303 to 305 moved—[Hugh Henry]—and agreed to.
Amendment 221, in the name of Colin Fox, was debated with amendment 66. I ask Colin Fox whether he wishes to move that amendment.
I am afraid that I am at a loss, convener. I do not have the amendment in front of me and I was not aware that it was coming up.
The solution to the quandary is as follows: the amendment was debated in your absence. Of course, it was not moved when it was debated as part of a group of amendments. We must now make a decision on how to dispose of it.
In that case, I move amendment 221.
The question is, that amendment 221 be agreed to. Are we all agreed?
No.
There will be a division.
For
Fox, Colin (Lothians) (SSP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 221 disagreed to.
After schedule 3
Amendment 306 moved—[Hugh Henry]—and agreed to.
Section 36—Unsatisfactory professional conduct: solicitors, firms of solicitor, incorporated practices or certain limited liability partnerships
Amendments 128 to 133 moved—[Hugh Henry]—and agreed to.
Amendment 307, in the name of the minister, is grouped with amendments 308 to 312, 316, 325 to 327, 331, 332, 334 to 337, 340, 349 and 351.
The amendments concern payment of fines or compensation. Amendments 307, 308 and 312 will adjust the position in cases in which the council of the Law Society of Scotland upholds a complaint of unsatisfactory professional conduct and considers directing the practitioner to pay a fine of up to £2,000.
Amendments 307 and 312 seek to avoid inappropriate double jeopardy for the practitioner. They require the council not to impose a fine where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and has been given a substantial term of imprisonment of not less than two years. Amendments 308 and 312 will require the fine to be payable to the Treasury, instead of to the council, as was originally provided for by the bill. That will bring the provision on fines into line with similar provisions in the Solicitors (Scotland) Act 1980.
Amendments 309, 310, 311 and 316 will modify the power of the council of the Law Society to direct a practitioner to pay compensation of up to £5,000 when upholding a complaint of unsatisfactory professional conduct. They will bring the power into line with other compensation provisions in the bill. Amendments 309 and 310 will permit the council to award compensation only if it considers that the complainer has been directly affected by the conduct. They will replace the original reference to the "client" with a wider reference to a "directly affected" complainer, which will allow for third-party complaints. Amendment 316 will remove the definition of "client" from proposed new section 42ZA of the 1980 act as it will no longer be required. Amendment 311 explains that compensation is to be made available to the complainer
"for loss, inconvenience or distress resulting from"
the unsatisfactory professional conduct.
Amendments 325 to 327 will adjust section 38, which would currently enable the Scottish Solicitors Discipline Tribunal to direct a solicitor or conveyancing or executry practitioner who was found guilty of professional misconduct to pay compensation of up to £5,000 to any person whom the tribunal considered to have suffered "loss, inconvenience or distress" as a direct result of the professional misconduct. Amendments 325, 326 and 327 will permit the tribunal to award compensation only where it considers that
"the complainer has been directly affected by the misconduct"
of a solicitor. They provide for compensation to be paid to the complainer
"for loss, inconvenience or distress resulting from the misconduct".
The wording of the paragraph that is to be inserted into section 53 of the Solicitors (Scotland) Act 1980 will thus be brought into line with that of similar provisions in the bill that relate to the award of compensation. Amendment 331 will apply to that paragraph the definition of "complainer" in section 42ZA to be inserted into the 1980 act, which is:
"the person who made the complaint and, where the complaint was made by the person on behalf of another person, includes that other person."
Amendment 332 will insert new provisions into section 55 of the Solicitors (Scotland) Act 1980 that set out the powers of the court in a case of professional misconduct by a solicitor. Where the court considers that the complainer has been directly affected by the misconduct, the amendment will empower the court to direct the solicitor to pay compensation to the complainer of up to £5,000 for consequent "loss, inconvenience or distress". The amendment will also provide a power for Scottish ministers to revise the maximum level of compensation by affirmative order after consulting the council and such groups of persons who represent consumer interests as ministers consider appropriate.
Amendment 351 is technical and will provide that the new power to award compensation applies only in relation to devolved advice, services and activities. It is intended that UK legislation will apply that power in relation to reserved advice, services and activities.
Amendment 334 will add to the steps that the council of the Law Society of Scotland may take when it is satisfied that a conveyancing or executry practitioner has been guilty of professional misconduct or where such a practitioner has been convicted of a criminal offence. The additional steps are, first, to direct the practitioner to pay the complainer compensation of up to £5,000 for loss, inconvenience or distress resulting from the misconduct or the offence where the council considers that the complainer has been directly affected by either, and secondly, to impose a fine of up to £2,000 on the practitioner.
To avoid inappropriate double jeopardy, amendment 334 will prevent the council from imposing a fine where, in relation to the subject matter of the complaint, the conveyancing or executry practitioner has been convicted by any court of an act involving dishonesty and has been sentenced to a term of imprisonment of not less than two years. Like amendments 308 and 312, amendment 334 will provide for the fine to be payable to, and recoverable by, the Treasury.
Amendment 340 is a consequential amendment that will extend the powers of Scottish ministers in section 38(2)(b) of the bill to revise the maximum compensation level to include the new compensation power that will be given to the council by amendment 334.
Amendments 335, 336 and 337 will permit the tribunal to award compensation only where it considers that the complainer has been directly affected by the misconduct, and will provide for compensation to be paid to the complainer for consequent "loss, inconvenience or distress". The wording of the paragraph that will be inserted into section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 will thus be brought into line with that of similar provisions in the bill on the awarding of compensation.
Amendment 349 will restrict the powers of the tribunal as provided for in section 53 of the 1980 act to impose a fine of up to £10,000 on a solicitor or incorporated practice. The purpose of the restriction is to avoid double jeopardy. Its effect will be that the tribunal may not impose such a fine where the solicitor, in relation to the subject matter of the tribunal's inquiry, has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than two years. In addition, the tribunal may not impose such a fine when it is proceeding on the ground that a solicitor has been convicted by any court of an act involving dishonesty, and has been sentenced to a term of imprisonment of not less than two years. Again, the amendment will apply only in relation to devolved advice, services and activities; UK legislation will extend that application.
I move amendment 307.
Amendments 312, 334 and 349, which deal with double jeopardy, are the principal amendments in the group. To be fair, in lodging them, the minister has sought a solution to a problem that frequently arises in the criminal courts. An individual who has been sentenced to a lengthy period of imprisonment may come before a court on another matter that dates from earlier than the matter that resulted in his conviction and which would normally result in a monetary penalty. In such cases, the court would not impose a monetary penalty because it would recognise that the accused would have no earnings as a result of their being in prison. The amendments should be supported.
As no other members wish to comment, I ask the minister whether he wishes to wind up.
I have nothing to add.
Amendment 307 agreed to.
Amendments 134, 308, 309, 135, 310, 311, 136 and 312 moved—[Hugh Henry]—and agreed to.
Amendment 313, in the name of the minister, is in a group on its own.
Section 36 of the bill seeks to insert proposed new section 42ZA into the Solicitors (Scotland) Act 1980 to give the council of the Law Society of Scotland powers in relation to unsatisfactory professional conduct. Amendment 313 will adjust those provisions. Where the practitioner who is the subject of a complaint is employed by another practitioner, subsection (6) of proposed new section 42ZA would require the council to make directions that apply to both the employee practitioner and the employer practitioner. The directions in question cover such matters as the payment of compensation to the complainer. We want to delete that provision because it would be inequitable for an employing practitioner to be held responsible for unsatisfactory professional conduct on the part of an employee practitioner.
The position that we propose on conduct complaints is thus different from the position that the committee agreed on service complaints. Where the commission upholds a service complaint, it may make a direction to pay compensation to both the employing and employee practitioners, for the reasons that were given when the committee considered amendment 53. However, I argue that the considerations in this case are different, because unsatisfactory professional conduct is very much a question of individual behaviour, whereas the provision of inadequate professional services could, for example, be due to management failings on the part of a firm.
I move amendment 313.
Amendment 313 agreed to.
Amendments 137 and 138 moved—[Hugh Henry]—and agreed to.
Amendment 314, in the name of the minister, is grouped with amendments 315, 317 to 322 and 350.
The bill already provides powers for the council of the Law Society of Scotland in relation to unsatisfactory professional conduct on the part of a solicitor. The group of amendments provides for appeals against findings of unsatisfactory professional conduct by the council and gives the Scottish Solicitors Discipline Tribunal and the court appropriate powers to deal with such appeals.
Amendment 314 is a minor technical amendment that will ensure consistency of language.
Section 36 of the bill already provides a right of appeal for the solicitor to the tribunal against a finding by the council of unsatisfactory professional conduct. Amendment 315 will create rights for the complainer to appeal to the tribunal where the council determines not to uphold a complaint about unsatisfactory professional conduct, or decides not to direct a solicitor to pay compensation. The complainer may also appeal to the tribunal against the amount of compensation that has been awarded by the council.
Section 36 of the bill also enables the council to require a solicitor to explain the steps that he or she has taken to comply with a direction to undertake education or training as regards the law or legal practice, or to pay a fine of up to £2,000, or to pay the complainer compensation of up to £5,000. The bill already provides for notice in writing from the council for those purposes to cease to have effect pending the outcome of an appeal by the solicitor. Amendment 317 provides for such a notice to cease to have effect, pending the outcome of an appeal by the solicitor or complainer to the tribunal or the court.
The Scottish Solicitors Discipline Tribunal will be given powers in relation to appeals—amendment 318 seeks to insert new sections in the Solicitors (Scotland) Act 1980 that will give the tribunal powers in relation to appeals that are made to it by solicitors or complainers against council determinations or directions. Proposed new section 53ZA of the 1980 act will give the tribunal powers where a solicitor appeals a council determination upholding a conduct complaint or a consequent direction requiring remedial education or training or the payment of a fine or compensation.
The new powers are for the tribunal to quash or confirm a determination that is being appealed against, including a power to quash any related censure; to quash, confirm or vary a direction being appealed against; to fine the solicitor; or, where the tribunal considers the complainer to have been directly affected by the conduct, to direct the solicitor to pay compensation of up to £5,000 in respect of resulting loss, inconvenience or distress.
Where a complainer appeals a council determination not to uphold a conduct complaint, the tribunal will be able to quash the council determination and uphold the complaint; direct the solicitor to pay compensation of up to £5,000 to a complainer who has been directly affected by the conduct; or confirm the determination.
Where a complainer appeals against a decision by the council to uphold a conduct complaint but not to award compensation, the tribunal will be able to direct the solicitor to pay compensation of up to £5,000 for loss, inconvenience or distress when it considers that the complainer has been directly affected by the conduct.
Where a complainer appeals to the tribunal against the amount of compensation that the council has directed a solicitor to pay, the tribunal may quash, confirm or vary the direction that is being appealed against.
To avoid inappropriate double jeopardy, the tribunal will not be able to fine a solicitor who, in relation to the subject matter of the complaint, has been convicted of an act involving dishonesty and has been given a substantial term of imprisonment of not less than two years.
Any fine that is imposed by the tribunal is to be payable to and recoverable by the Treasury.
Where a solicitor fails to comply with a direction from the council of the Law Society, proposed new section 53ZB of the 1980 act will provide for the direction, as confirmed or varied on appeal by the tribunal or court, to be enforced in like manner as an extract decree arbitral in favour of the council bearing a warrant for execution that is issued by a sheriff court.
Amendments 319 to 322 will provide rights of appeal to the court against tribunal decisions and give the court the necessary powers in respect of such appeals.
Amendment 319 will insert into the 1980 act proposed new section 54A, which provides a right of appeal to the court for a solicitor or complainer in respect of decisions that are made by the tribunal.
A solicitor is provided with a right to appeal to the court against the following decisions by the tribunal: to confirm a council determination upholding a conduct complaint and the censure that accompanied it; to quash, confirm or vary a council direction; to fine a solicitor; or to direct the solicitor to pay compensation of up to £5,000.
A complainer is given the right to appeal to the court against certain decisions that are taken by the tribunal on appeal. The tribunal decisions in question are decisions to quash the council's determination upholding a conduct complaint; to quash or vary a direction by the council that the solicitor pay compensation; to direct a solicitor to pay compensation of up to £5,000 or not to award any compensation; to confirm the council's decision not to uphold the complaint; to confirm the council's decision not to direct the solicitor to pay compensation; or to quash the council's direction that the solicitor pay compensation or vary the amount of compensation awarded.
Having heard an appeal by the solicitor or complainer, the court will be able to give such directions in the matter as it thinks fit and its decision will be final.
Amendment 320 will provide the court with the following powers in respect of unsatisfactory professional conduct: to fine the solicitor; where the court considers the complainer to have been directly affected by the conduct; to direct the solicitor to pay compensation of up to £5,000 for loss, inconvenience or distress resulting from the conduct; and to find the solicitor liable in any expenses that may be involved in the proceedings that are before the court. The decision of the court will be final.
Amendments 321 and 322 will delete from the bill sections 36(4) and 36(5), which would have empowered Scottish ministers to make regulations to modify any enactment for the purpose of giving the council, the tribunal or the court further powers in respect of conduct complaints. Sections 36(4) and 36(5) were marker provisions on introduction and are no longer required because the aforementioned amendments, if agreed, will complete the powers that the council, tribunal and court will require in respect of conduct complaints.
Amendment 350 will amend the 1980 act to clarify the rights of appeal that are available to a solicitor, firm of solicitors or incorporated practice against a decision of the tribunal to quash, vary or confirm a decision by the council to suspend, withdraw or restrict an investment business certificate.
Both the council and the solicitor, the firm of solicitors or incorporated practice are to have a right of appeal to the court against the decision that is taken by the tribunal. The court may give such directions in the matter as it thinks fit, and its decision will be final.
I move amendment 314.
I am not sure whether I picked you up correctly, minister—although I listened avidly to what you said. I think that, when you referred to the tribunal or court being able to award up to £5,000 as compensation for unsatisfactory professional conduct, I heard you say that it would take into account any fees and outlays. I am keen to hear you confirm that because I previously moved amendments that would ensure that that happened, but with a slightly different set of issues.
The context to which Jackie Baillie refers is slightly different and we have not mentioned it in the amendments. The fees and outlays relate to defective service, which is a different issue. I am just going back over what I said.
I am happy to study the Official Report and then get back to the minister.
If anything that I have said requires clarification, I will give it, but I do not think that it does.
It would be helpful if we had clarification, because we will have to vote on the amendments. If you wish to take a minute to discuss the matter with your officials, feel free to do so.
I can reflect on the Official Report, convener. That would be more than adequate for my purpose.
I am struggling to find the form of words with which Jackie Baillie is concerned. I do not think that they were said. In any case, the context is slightly different.
Ms Baillie seems to be satisfied, minister.
Amendment 314 agreed to.
Amendments 315, 316, 139, 317 to 320, 140, 141, 321 and 322 moved—[Hugh Henry]—and agreed to.
Section 36, as amended, agreed to.
Section 37—Unsatisfactory professional conduct: conveyancing or executry practitioners etc
Amendment 323, in the name of the minister, is grouped with amendments 344 and 345.
The amendments introduce the concept of unsatisfactory professional conduct on the part of conveyancing and executry practitioners and set out in detail the applicable procedures, which are broadly similar to those that are proposed for solicitors.
Amendment 323 will make the necessary changes by inserting new provisions into the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Amendments 344 and 345 are minor consequential amendments.
Section 37 of the bill provides the Scottish ministers with a power to make regulations in respect of unsatisfactory professional conduct by conveyancing and executry practitioners. Amendment 323 will delete that section, because it also inserts the required provisions into the 1990 act.
Amendment 323 will provide the council of the Law Society of Scotland with powers in relation to unsatisfactory professional conduct by conveyancing or executry practitioners. Amendments 344 and 345 will amend schedule 4 to the bill to add to the list of functions that the council of the Law Society may not delegate to an individual by virtue of section 3A(5) of the Solicitors (Scotland) Act 1980. The functions in question are the council's determination of a complaint that suggests unsatisfactory professional conduct by a conveyancing or executry practitioner, and its determination of what steps to take when upholding a conduct complaint against a conveyancing or executry practitioner.
I move amendment 323.
Amendment 323 agreed to.
Section 37, as amended, agreed to.
After section 37
Amendment 324, in the name of the minister, is in a group on its own.
Amendment 324 follows amendment 52, which the committee passed on 26 September. Amendment 52 empowers the legal complaints commission, when upholding a service complaint, to make a report to the relevant professional organisation, if it considers that the practitioner concerned might lack competence in a certain area of law or legal practice. It was agreed that decisions on whether remedial education or training are required should rest with the professional bodies that are responsible for legal education and training.
The purpose of amendment 324 is to give the council of the Law Society of Scotland the power, on receipt of such a report, to direct the solicitor to undertake such education or training as regards the law or legal practice as it considers appropriate. The scope of the council's power of direction is narrower in respect of conveyancing or executry practitioners. As regards conveyancing law or legal practice or, as the case may be, executry law or legal practice, it relates only to education or training.
The procedural provisions that are to be inserted in the Solicitors (Scotland) Act 1980 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 are, in essence, the same for solicitors and conveyancing or executry practitioners. The council of the Law Society must intimate a direction to a solicitor or practitioner by notice in writing, and is to require the solicitor or practitioner to give an explanation within 21 days of the steps that should be taken to comply with that direction. The notice is to cease to have effect pending the outcome of any appeal against the direction.
Solicitors or practitioners are to have a right of appeal to the Scottish Solicitors Discipline Tribunal against such a direction within 21 days. The tribunal may quash, confirm or vary the direction, and the solicitor or practitioner will be able to appeal to the court against the tribunal's decision. The court will be able to give such directions on the matter as it thinks fit, and its decision will be final.
I move amendment 324.
Amendment 324 agreed to.
Section 38—Power of Tribunal to award compensation for professional misconduct
Amendment 293, in the name of Bill Aitken, is grouped with amendments 287 and 294 to 296. I ask Mr Aitken to speak to the group of amendments and to move amendment 293.
It is not my intention to move amendment 293 or any of the other amendments in the group.
Amendment 293 not moved.
Amendment 325 moved—[Hugh Henry]—and agreed to.
Amendment 287 not moved.
Amendments 326 and 327 moved—[Hugh Henry]—and agreed to.
Amendments 294 to 296 not moved.
Amendment 328, in the name of the minister, is grouped with amendments 329, 330 and 355.
The amendments in this group are minor technical amendments. Section 38 of the bill will insert proposed new subsections (7A) and (7B) into section 53 of the Solicitors (Scotland) Act 1980. In fact, there is already a subsection (7A). The new subsections need to be renumbered as (7B) and (7C), and references to them need to be adjusted accordingly.
I move amendment 328.
Amendment 328 agreed to.
Amendments 329, 330, 355, 331 and 332 moved—[Hugh Henry]—and agreed to.
Amendment 333, in the name of the minister, is grouped with amendment 354.
Amendment 333 will amend a reference in section 38 to the section title of section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Section 20 of that act currently covers service complaints against conveyancing and executry practitioners, which is reflected in the section title. Section 20 of the 1990 act will, however, be confined to conduct matters by the bill, so the section title will be amended to reflect that. The reference in section 38 of the bill to "inadequate professional services" in the title of section 20 of the 1990 act should therefore be removed.
We originally thought that it would be necessary to preserve provisions in the 1990 act about service complaints against conveyancing and executry practitioners, in so far as they applied to reserved matters. Lines 13 to 24 of page 46 of the bill, in schedule 4 will, accordingly, restrict those provisions to those matters. We had been intending complete repeal to follow either in UK primary legislation or by means of an order under section 104 of the Scotland Act 1998. However, we have now established that those practitioners do not provide any reserved services, so amendment 354 will remove the provisions concerned from schedule 4. An amendment that will be lodged in time for the committee's next stage 2 meeting will repeal the definition of "inadequate professional services" in the 1990 Act.
I move amendment 333.
Amendment 333 agreed to.
Amendments 334 to 337 moved—[Hugh Henry]—and agreed to.
Amendment 338, in the name of the minister, is grouped with amendments 339, 341, 356 and 342.
Amendment 342 will deliver the Executive's policy of introducing appeal rights for complainers in professional misconduct cases to the extent that they could be affected by decisions relating to compensation. It will introduce a right of appeal from decisions of the Scottish Solicitors Discipline Tribunal to the Court of Session in such cases. It also clarifies the existing appeal rights that are set out in the Solicitors (Scotland) Act 1980.
At the moment, section 54(1) of the 1980 act provides that "any person aggrieved" may appeal to the court against a decision of the tribunal that relates to discipline. However, that has been interpreted in practice as meaning the practitioner and the council of the Law Society, whose fiscal had prosecuted the case before the tribunal. It has not been interpreted as including the original complainer. The intention is to repeal the vague wording in section 54(1) of the 1980 act, although that cannot be done in the bill because of the application of the provision to reserved as well as devolved legal services. Repeal will ultimately be achieved either through legislation from the UK Parliament or by an order under section 104 of the Scotland Act 1998.
In the meantime, subsection (1)(c) of the proposed new section that will be inserted by amendment 342 will restrict section 54(1) of the 1980 act to cases relating to reserved legal services and activities. For all professional misconduct cases relating to devolved services and activities, subsection (1) of the proposed new section sets out clearly and specifically the rights of the different parties involved to appeal from decisions of the tribunal to the court. Like the practitioner, the council of the Law Society is able to appeal, although not against any award of compensation to the complainer.
If the practitioner believes that compensation should not have been awarded or is too high, the onus should be on him or her to appeal that decision, rather than the society perhaps being seen as protecting its own on consumer-redress issues. The complainer may appeal against a decision not to award compensation or to award an amount of compensation that the complainer regards as insufficient.
Subsection (1) of the proposed new section that amendment 342 will insert also provides for appeals against a finding that an incorporated practice has failed to comply with provisions under the 1980 act. Subsection (2) makes corresponding provision in relation to professional misconduct appeals involving conveyancing and executry practitioners. It also makes such provision in relation to findings that a person is no longer fit and proper to offer conveyancing and executry services, which is a peculiarity of the 1990 act.
Amendments 338, 339, 341 and 356 are minor technical amendments that are consequential on amendment 342's insertion of new subsections (11B) to (11E) into section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
I move amendment 338.
Amendment 338 agreed to.
Amendments 339 to 341 and 356 moved—[Hugh Henry]—and agreed to.
Section 38, as amended, agreed to.
After section 38
Amendment 342 moved—[Hugh Henry]—and agreed to.
Section 39—Constitution of Scottish Solicitors' Discipline Tribunal
Amendment 297, in the name of Bill Aitken, is in a group on its own.
Amendment 297 would enable the Scottish Solicitors Discipline Tribunal to appoint a committee to discharge its functions subject to a specified exception. As things stand, the SSDT can deal with prosecutions only when they are heard in a plenary session, which can be ponderous and unmanageable. In particular, it seems to be a waste of time in cases of low-level professional misconduct that have resulted in no great loss or inconvenience to the complainer. It would be far more efficient to discharge that duty by means of a committee.
In amendment 297, I seek to underline the fact that a solicitor could not be struck off the roll by a committee, but that such a case would have to go before the whole plenary session. However, it is a waste of time and unmanageable for fairly minor matters in which the penalty would be restricted to a suspension, a fine or even censure to be dealt with in a full plenary session.
I move amendment 297.
I have a number of concerns about amendment 297. Bill Aitken makes the case that it would assist the efficient discharge of tribunal business if the tribunal did not have to sit in plenary session to hear every prosecution that relates to professional misconduct. The amendment suggests that the tribunal should instead be required to hold plenary hearings only in relation to excepted functions, which are defined as the making of an order to strike a solicitor's name off the roll or to revoke an investment business certificate. However, we must bear it in mind that professional misconduct at any level must fall within the case-law definition of conduct that any competent and reputable solicitor would regard as serious and reprehensible: I therefore have difficulty in accepting the concept of what Bill Aitken euphemistically calls "low-level professional misconduct".
Amendment 297 suggests functions that a committee of the tribunal should not be able to deal with. That suggestion has some logic, because striking off a solicitor or revoking an investment business certificate are severe sanctions that directly affect solicitors' livelihoods, but the exceptions are tightly drawn so that a tribunal committee would be able to exercise other significant disciplinary sanctions. Those could include imposing a fine of up to £10,000, restricting a solicitor's practising certificate or suspending or censuring a solicitor.
I am concerned that amendment 297 does not specify a quorum for a committee, which could mean that a committee that dealt with such matters—which are significant—would need to have only one lawyer and one non-lawyer member for it to be properly constituted. I do not believe that the current statutory requirement that a plenary session of the tribunal must involve a minimum of four members is by any means onerous.
It may be that the purpose of the amendment is to save on the tribunal's running costs, but I doubt whether the delegation of tribunal business to committees would be particularly effective if that were the purpose. [Interruption.]
I ask you to pause at that point, minister.
I suspend the meeting until we get clarification from the security staff that it is safe to proceed. I ask all the people who are in the room to remain seated. If there is an emergency and we are required to evacuate, you must follow instructions from the security staff.
Meeting suspended.
On resuming—
I call the meeting back to order. We have received a report that some people were evacuated as a routine safety measure. The fire doors must be checked because they close automatically—that happened in one section of the building; the doors have been reopened but are being checked to confirm that they are in operational order. The fire brigade has suggested that we can continue, but I will keep everybody informed should the situation change.
I take us back to where we were in our discussions. Mr Aitken had spoken to and moved amendment 297 and the minister had started to respond to his points. I ask the minister to continue.
I will take up the debate at the point at which I left off, which is whether amendment 297 would bring about any saving in the annual running costs of the Scottish Solicitors Discipline Tribunal. I doubt whether delegation of tribunal business to committees would be particularly effective, if that is the amendment's purpose.
Prosecutions for professional misconduct deserve to be heard by the tribunal in plenary session, and it is not clear how well delegation would work in practice. How would the tribunal be able to anticipate whether the hearing of a complaint might lead to a solicitor being struck off the roll before it hears the evidence? It would be necessary to devise a procedure for determining in advance whether a complaint should be heard by the full tribunal or a committee. That procedure would have to include a mechanism for moving cases from committee to tribunal or vice versa. For example, if a committee were to hear a complaint that it concluded was sufficiently serious to merit striking off, the complaint would have to go to the full tribunal. There is a risk that delegation to a committee could prove difficult to operate in practice.
Notwithstanding our disagreement in principle, another issue is that the amendment is defective, as it relates only to solicitors and does not cover conveyancing and executry practitioners.
For those reasons, I hope that Bill Aitken will not press the amendment; if he does, I hope that the committee will reject it.
The minister's political pedigree is not dissimilar to mine, in that he came to the Parliament after a long and—dare I say it—distinguished career in local government. He is well aware that, in local government, the procedure for dealing with someone who had been dismissed or disciplined by a department would be that they would have the right to appeal and that the appeal would be heard by a sub-committee of the personnel committee—or whatever the council called it—which would, of course, be comprised of only a fraction of the members of the local authority. What I am seeking in the amendment—namely, that a sub-committee be appointed—is no different from that.
It would be fairly obvious from a complaint submitted to the prosecutor whether there was any prospect of striking a solicitor off the roll. If the degree of misconduct or loss that was referred to in the complaint was minor, there would be no question of striking off. Such apparently mundane complaints would be referred to a committee to deal with in a satisfactory manner.
I do not accept the minister's arguments and I will press amendment 297.
The question is, that amendment 297 be agreed to. Are we agreed?
No.
There will be a division.
For
Davidson, Mr David (North East Scotland) (Con)
Against
Baillie, Jackie (Dumbarton) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Fox, Colin (Lothians) (SSP)
Macmillan, Maureen (Highlands and Islands) (Lab)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 297 disagreed to.
Section 39 agreed to.
Section 40 agreed to.
Section 41—Safeguarding interests of clients
Amendment 357, in the name of Bill Aitken, is in a group on its own.
Amendment 357 is a probing amendment. I seek clarification from the minister that the existing legislation covers the issue raised in amendment 357—in other words, the effect of an order of the tribunal is covered in the primary legislation.
I move amendment 357.
On the face of it, Bill Aitken's proposals are sensible, but the problem is that amendment 357, if agreed to, would have unintended consequences. It makes sense to seek to make section 45(1) of the Solicitors (Scotland) Act 1980 comprehensive in respect of the various circumstances that that section covers. However, the problem is that, if agreed to, the amendment would distort the policy underpinning certain provisions in section 45.
Amendment 357 would mean that section 45(1) of the 1980 act would apply the safeguarding provisions in that section in three circumstances, namely a solicitor whose name is struck off the roll, a solicitor who is suspended from practice, or a solicitor who is
"restricted by an order of the Tribunal under section 53(5) from acting as a principal".
Section 45(2)—[Interruption.]
It is not often that security staff give the minister permission to do something. I ask the minister to proceed.
I did not quite hear that announcement, convener. Perhaps you should have a word with them about the volume.
Section 45(2) of the 1980 act requires solicitors who have been struck off or suspended to satisfy the council of the Law Society of Scotland that they have made suitable arrangements to safeguard their clients' interests. Section 45(3) sets out what is to happen if they fail to satisfy the council. Section 45(4) applies to solicitors who are sole traders. When they are suspended or struck off, the client account is to vest in the Law Society.
Proposed new section 45(4A) of the 1980 act, to be inserted by section 41 of the bill, introduces a new category—that of solicitors who are sole traders when they are restricted by the tribunal from acting as principals. Where they are so restricted, the client account is to vest in the Law Society.
The effect of amendment 357 would be that subsections (2) and (3) of section 45 of the 1980 act would apply to solicitors who were restricted from acting as principals regardless of whether or not they were sole traders, but there is no need for alternative arrangements to be made where the demoted solicitor is not a sole trader, as there will be other partners who can take over the relevant responsibilities. Restriction from practising as a principal is, after all, less serious than suspension or being struck off. I think that the amendment has an unintended consequence—it is certainly one that does not correspond to any policy intention of the Executive.
However, there is a case for reviewing section 45(1) of the 1980 act so that the application of the provisions in that section is clear. I propose that my officials should discuss the case for a stage 3 amendment with the Law Society.
For those reasons, and having given that undertaking, I hope that Bill Aitken will withdraw amendment 357.
Having heard the minister's remarks, I still think that there is a problem with the bill in its current form, but I concede that perhaps amendment 357 does not fully address that problem. Although I reserve my position at stage 3, I will not press the amendment now.
Amendment 357, by agreement, withdrawn.
Amendment 142 moved—[Hugh Henry]—and agreed to.
Section 41, as amended, agreed to.
Sections 42 and 43 agreed to.
We will proceed no further with the bill today. I thank the minister for coming along and invite him to come back to face yet another round of stage 2 debate on the bill.
Meeting suspended.
On resuming—