Legal Profession and Legal Aid (Scotland) Act 2007 (Membership of the Scottish Legal Complaints Commission) Amendment Order 2014 [Draft]
Item 3 on the agenda is consideration of an instrument that is subject to affirmative procedure. The cabinet secretary has stayed with us for this agenda item, but is joined by new officials. I welcome Stella Smith, who is the legal services team leader in the civil law and legal system division, and Alastair Smith, who is a solicitor in the directorate for legal services. You two are not related, are you?
We are not.
No.
You do not need to say it so quickly; it is fine.
I ask the cabinet secretary to make a statement in advance of the debate on the instrument.
I am pleased to be here today to assist the committee in its consideration of the instrument.
When the Scottish Legal Complaints Commission was created in 2008, schedule 1 to the Legal Profession and Legal Aid (Scotland) Act 2007 stated that the board would consist of a total of nine members. That number would be made up of five non-lawyer members, including the chair, and four lawyer members. Paragraph 2(7) of schedule 1 to the act allows for Scottish ministers to amend, by order, the number of members and the composition of the board.
The Legal Profession and Legal Aid (Scotland) Act 2007 (Membership of the Scottish Legal Complaints Commission) Amendment Order 2010 increased the size of the board from nine members to 12. The reason for that increase was that the periods of appointment of all the board members came to an end at the same time. Increasing the numbers on the board allowed retirements to be staggered which, in turn, allowed the commission always to retain a number of experienced members.
The 2010 amendment has successfully staggered the periods of appointment, so that situation should not arise again. However, in the intervening years, through the retirement of members, the size of the board has decreased once more to nine members. That is, of course, the number of members that Parliament originally provided for in the 2007 act.
I am satisfied that the commission is able to function well with a nine-member board and that a larger board is not required, but it is appropriate to ensure that the board’s composition matches the requirements of the 2007 act, so the order will bring the statute back into line with current practice.
I hope that that is useful to the committee. I am happy to take any questions.
What the cabinet secretary has just said makes it all much more understandable, but that was not mentioned in the policy note at all. The policy note says:
“The Board is currently operating ... with 9 members and ... 12 members are not required or affordable for the organisation.”
I was certainly concerned that we were somehow not complying with the legislation for reasons of affordability, but the cabinet secretary has said that that is not the case any more.
I do not think that it is a question of affordability. The board is operating. Members of the committee will have noted the on-going debate between the profession and the Scottish Legal Complaints Commission about how much should be charged and so on, but the basis of the instrument is that the board can operate fine with nine members.
Obviously, there was a gap in the legislation when it was enacted in 2007; I remember its coming before me. We had to increase the board’s size, because there would otherwise have been a commission with very inexperienced members. The board was expanded to deal with the oversight of that problem not being factored in at the time, so that we could get a smooth transition. However, on balance, the board clearly operates with nine members, and the committee might find that the profession would object to any increased costs. Costs in all walks of life are clearly important at the moment.
The order is not financially driven as such; the aim is to ensure the correct balance and to get us back to where Parliament wanted to be in 2007. Perhaps Parliament did not frame the legislation as well as it should have to allow for transition.
That is helpful.
That gets nearer to what I understood to be the case, which was that the order replaces an order that was laid in June 2014. That order was withdrawn because it incorrectly stated the number of legal and lay members of the board, which arose due to a misunderstanding between the Scottish Government and the Scottish Legal Complaints Commission. Was that error just regarding the number of members of the board, or was it also about the composition in respect of the numbers of lay and professional members?
I think that there was just an error in the balance between lay and legal members and that there was nothing more to it than that. The Scottish Legal Complaints Commission is working very harmoniously. There are always challenges and tensions between it and the profession, given the nature of the job that it has to do, but there was a human error, and the appropriate changes have been made.
As I said, the aim is to get us back to where we probably should—I say with hindsight—have been in 2007, had we managed to stagger the membership of the board. That was not done, so we were required to expand the membership in 2010 so that there could be a continuation and people with experience would run on. The error occurred in 2007. We wish that it had not occurred, but the right thing was done to get the commission through the period and ensure that it had stability and experience. We have that stability and experience, and nine members operate perfectly harmoniously and well.
For the avoidance of doubt, is the composition of the board five lay members and four professional members?
Yes, including the chair.
Thank you very much. That ends the questions.
Item 4 is the debate on the draft Legal Profession and Legal Aid (Scotland) Act 2007 (Membership of the Scottish Legal Complaints Commission) Amendment Order 2014. I invite the cabinet secretary to move motion S4M-10964.
Motion moved,
That the Justice Committee recommends that the Legal Profession and Legal Aid (Scotland) Act 2007 (Membership of the Scottish Legal Complaints Commission) Amendment Order 2014 [draft] be approved.—[Kenny MacAskill.]
Do members wish to speak?
Members: No.
Motion agreed to.
We are required to report on all affirmative instruments. Is the committee content to delegate to me authority to sign off our report?
Members indicated agreement.
Thank you. I thank the cabinet secretary and his officials for their attendance.
Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Amendment (No 2) Order 2014 (SSI 2014/220)
Item 5 is consideration of an instrument that is subject to negative procedure. The Delegated Powers and Law Reform Committee considered the order at its meeting on 19 August and agreed that it did not need to draw Parliament’s attention to the order on any ground within its remit.
Do members have any comments on the order?
Members: No.
I think that it represents an excellent move forward for rural areas, with the extension to include Mull and Iona Community Trust. I had not realised that the approach means that the first call from a housing association sale is sale back to the housing association, which protects the integrity of an island community.
Is the committee content to make no recommendation on the order?
Members indicated agreement.
Victims and Witnesses (Scotland) Act 2014 (Commencement No 2 and Transitional Provision) Order 2014 (SSI 2014/210)
Agenda item 6 is consideration of an instrument that is not subject to any parliamentary procedure. The Delegated Powers and Law Reform Committee considered the order at its meeting on 12 August and agreed to draw Parliament’s attention to it.
Under the arrangements that the DPLR Committee negotiated with the Scottish Government for the management of commencement orders that contain complex transitional provisions—as this one does—the Government agreed that such instruments will be accompanied by a policy note to assist the DPLR Committee in its scrutiny, and that it will aim to allow at least 40 days between an instrument’s being laid and its coming into force.
In this case, only 19 days were allowed and the policy note did not adequately explain the policy intention behind the order. The DPLR Committee has therefore written to the Government and to the Standards, Procedures and Public Appointments Committee about the procedure for scrutiny of commencement orders that contain complex transitional provisions.
Are members happy to endorse the DPLR Committee’s concerns?
Members indicated agreement.
Do members have any other comments on the order?
Members: No.
It does seem remiss, does it not? A whole lot of stuff is now coming into force that is really quite substantial. Many people do not understand that the sections of an act of Parliament do not all come into force at the same time, so it is important to know when they come into force and why. I think that it is a very reasonable point.
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