Legal Profession and Legal Aid (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Legal Profession and Legal Aid (Scotland) Bill.
In dealing with amendments, members should have the bill as amended at stage 2, which is SP bill 56A; the marshalled list, which contains all the amendments that I have selected for debate; and the groupings, which I have agreed.
For the first division on an amendment, the division bell will sound and proceedings will be suspended for five minutes. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a one-minute voting period for the first division after a debate. All other divisions will be allowed 30 seconds.
Section 2—Receipt of complaints: preliminary steps
Group 1 is on circumstances in which a conduct complaint about conveyancing and executry practitioners may be made. Amendment 8, in the name of David Davidson, is the only amendment in the group.
Amendment 8 seeks to remove section 2(1)(a)(ii), which I believe to be unnecessary, as conveyancing and executry practitioners are already covered by the rules on professional misconduct. Quite frankly, this matter should not be pursued in the bill, because if those practitioners have been convicted of a criminal offence that renders them
"no longer … fit and proper … to provide … services",
they can be dealt with in the same way as other practitioners through a professional misconduct complaint under section 2(1)(a)(i).
I move amendment 8.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which covers the position of conveyancing and executry practitioners, lists conviction of a criminal offence that renders such a practitioner
"no longer a fit and proper person"
separately from "professional misconduct". Therefore, it is not beyond doubt that a complaint that a conveyancing or executry practitioner is
"no longer a fit and proper person"
to offer conveyancing or executry services as a result of being convicted of a criminal offence would be treated as a conduct complaint. As a result, it is advisable for the bill to refer separately to the position of conveyancing and executry practitioners, as that will ensure, for the avoidance of doubt, that the new complaints handling system will definitely cover such matters. As no corresponding provision in the Solicitors (Scotland) Act 1980 raises the same question, we ask Mr Davidson to withdraw amendment 8.
I acknowledge the minister's comments. However, I have been advised that conveyancing and executry practitioners would be covered by section 2(1)(a)(i) and will therefore press my amendment.
The question is, that amendment 8 be agreed to. Are we agreed?
No.
There will be a division. I suspend the meeting for five minutes.
Meeting suspended.
On resuming—
We will proceed with the division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brownlee, Derek (South of Scotland) (Con)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Leckie, Carolyn (Central Scotland) (SSP)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 32, Against 61, Abstentions 0.
Amendment 8 disagreed to.
Group 2 is on determination of eligibility to make a complaint. Amendment 9, in the name of David Davidson, is grouped with amendments 11 to 16, 19, 21, 36 and 37.
As the Presiding Officer has pointed out, this group of amendments deals with determination of eligibility to make a complaint. In lodging amendment 11, I want to probe the meaning of the phrase "specified regulatory schemes" in section 2A(1).
I also seek clarity as to whether the proposed Scottish legal complaints commission will deal only with service complaints.
Amendment 12 is a consequential amendment that seeks to ensure that all relevant information that is given is complete.
Amendment 13 seeks to ensure that the commission will determine complaints that are made by eligible persons. Amendment 14 seeks to insert a new section that will define who can make a complaint. Amendments 15 and 16 would require the commission to send notice to both the complainer and the practitioner of determinations that are made under the proposed new section that amendment 14 seeks to insert after section 4. That would introduce an element of fairness and openness. Amendment 9 is a paving amendment to allow a new section to be introduced after section 4. Amendment 19 seeks to make a drafting change to allow a person to complain on behalf of someone else. Amendments 21, 36 and 37 are merely drafting amendments.
I move the amendments in this group in order to achieve clarity, because I am afraid that the bill as it was originally drafted did not provide clarity on a number of issues. I am trying to be as helpful as possible in assisting the minister to draft a much better bill.
I clarify that you have moved only amendment 9 at this stage.
I am grateful for David Davidson's kindness.
Amendment 9 would remove the reference to any provision on rules made by the commission under section 23(1) as to a person's eligibility to make complaints. We appreciate Mr Davidson's concern in that regard and can assure him that the intention of the provision is directed only at the provision in paragraph 1(a)(ii) of schedule 3, under which rules may determine
"the eligibility of persons to make … complaints on behalf of other persons (whether living or not)".
There is no intention to give the commission power to set other eligibility criteria that are not on the face of the bill. Having given that assurance, I hope that Mr Davidson will withdraw amendment 9.
In our view, amendment 11 is unnecessary. It reflects an unfounded concern that the provisions of section 2A might have the effect of causing the professional bodies to lose some of their responsibility for the professional conduct of their members. Accordingly, it seeks to limit the working of section 2A to service complaints and to exclude conduct complaints.
Section 2A will not preclude the findings or orders of another scheme being used as the basis for a conduct complaint. It is designed to avoid overlap by providing that, when appropriate, the investigation of a complaint that relates to activities that are covered by a specified regulatory scheme is first carried out under that scheme. That does not preclude the Law Society of Scotland prosecuting if it feels that the public interest demands that further sanctions are necessary. For example, if the Financial Ombudsman Service investigates a complaint and finds that a Scottish solicitor has been responsible for serious financial malpractice, it will be possible for the Law Society to prosecute that solicitor for professional misconduct before the Scottish Solicitors Discipline Tribunal on the basis of the previous finding and any other relevant evidence adduced. If the charges are upheld, the tribunal will be able to impose its own disciplinary sanction to protect the public, such as suspending or debarring the solicitor.
Amendments 12 to 14 are also unnecessary, because the bill already provides that "any person" may make a conduct complaint, so the issue of eligibility simply does not arise in relation to conduct complaints. It would be nonsense to require the commission to determine formally that a conduct complaint had been made by "any person", who was already, therefore, eligible.
As regards service complaints, there is no eligibility issue when the complaint is made by one of the public office holders or bodies that are listed in section 2(1A)(b) of the bill. The only eligibility issue on service complaints is whether the person
"appears to the Commission to have been directly affected by the suggested inadequate professional services".
In our view, to make that decision the subject of a formal determination would be unduly bureaucratic. When there is any doubt about whether the person has been affected directly by the alleged inadequate professional services, we would expect the commission to investigate the complaint to get to the truth of the matter. If that investigation makes it clear that the complainer has not been affected directly by the services in question, the commission will be able to dismiss the complaint without further ado. Indeed, it would not be competent for it to continue to deal with an ineligible complaint.
With regard to amendments 15, 16, 19, 21, 36 and 37, section 34 of the bill already defines the term "complainer" as
"the person who makes the complaint and, where the complaint is made by the person on behalf of another person, includes that other person".
That means that those six amendments are superfluous, so we urge Mr Davidson not to move them.
As I said earlier, I seek guidance from the minister about what is intended because members of the public, among others, have expressed doubts about what the bill means. I am content to accept what the minister says, as long as she accepts that notice must be sent to both a complainer and a practitioner of a determination that is made under the proposed new section that amendment 14 seeks to insert after section 4. If the minister is content with that, I will not press amendment 9.
I hear what Mr Davidson says and I have argued our position on the amendment. That should be sufficient.
Amendment 9, by agreement, withdrawn.
Group 3 is on persons entitled to make complaint etc. Amendment 10, in the name of David Davidson, is grouped with amendment 211.
Amendments 10 and 211 seek to add sheriffs and tribunal chairs to the list of judges in the bill to ensure consistency.
I move amendment 10.
Amendment 10 seeks to add chairmen of tribunals to the list of public office holders who can make a service complaint to the commission, but it does not define what a chairman of a tribunal is or indicate which tribunals would be covered. Members will note that, because of the large number and variety of tribunals that exist, section 2(1B), which mentions exempting from conduct complaints
"a practitioner acting in a judicial capacity in a court or tribunal",
provides that courts and tribunals would be specified by order by the Scottish ministers. Amendment 10 is therefore unworkable and I invite David Davidson to withdraw it.
Amendment 211 would enable both a sheriff and a tribunal chairman to make a complaint of professional misconduct to the Scottish Solicitors Discipline Tribunal. It seeks to align the list of people in section 51 of the Solicitors (Scotland) Act 1980 who can make a complaint of professional misconduct to the Scottish Solicitors Discipline Tribunal with the list of public office holders in section 2(1A) who will be able to make a service complaint to the commission. However, the amendment is flawed. The reference to "judge" in section 51 of the 1980 act is defined by section 65 of that act to include a sheriff.
Secondly, as I have already explained, a reference to a tribunal chairman would cause difficulty because the term is not defined in statute. That is why section 2(1B) of the bill gives ministers an order-making power to specify the tribunals in which practitioners can be taken to be acting in a judicial capacity and therefore cannot be the subject of a conduct complaint to the commission. Section 2(1A)(b)(iv) refers to
"any judge (including a sheriff)"
because the definition of "judge" in the 1980 act does not apply in the bill.
I invite David Davidson to withdraw amendment 10 and not to move amendment 211.
I thank the minister for providing clarity. Now we know that our money goes on good legal advice to our ministers. I accept what she says, and because she has put on the record where the backing for the Executive's position is, I am content not to press amendment 10.
Amendment 10, by agreement, withdrawn.
Section 2A—Existence of specified regulatory scheme
Amendments 11 to 13 not moved.
After section 4
Amendment 14 not moved.
Section 5—Complaint determined to be conduct complaint
Amendment 15 not moved.
Section 6—Services complaint: notice
Amendment 16 not moved.
Section 6A—Services complaint: local resolution or mediation
Group 4 is on services complaint: local resolution or mediation. Amendment 17, in the name of David Davidson, is grouped with amendment 18.
Amendment 17 is a drafting amendment that seeks to ensure consistency with section 4(1). Amendment 18 would allow parties in a mediation process to withdraw from mediation. It is as simple as that.
I move amendment 17.
I do not support amendment 17 because it is unnecessary. A complaint that is made under section 6A(1A) is a complaint that the commission has determined under section 4(1) to be either a conduct complaint or a service complaint. Under section 4(1), the commission also determines whether the complaint constitutes separate complaints that fall into more than one category and, if so, which categories those complaints fall into. Amendment 17 assumes that the mention of complaints in section 6A(1A) refers back to the receipt of a complaint under section 2, which relates to the preliminary step of sifting out complaints that the commission determines to be frivolous, vexatious or totally without merit, and thus fails to take account of the section 4 stage. I invite the member to withdraw amendment 17.
I am content to support amendment 18. Mediation clearly cannot continue if either party withdraws from the process, so it might be argued that an express requirement on the commission to discontinue mediation in that situation is unnecessary. However, I have no objection to the matter being made clear in the bill for the avoidance of doubt.
I thank the minister for accepting amendment 18, which is of benefit. If we can work together on that basis, we will have a good day. I accept the point that she makes on amendment 17, so I will not press it.
Amendment 17, by agreement, withdrawn.
Amendment 18 moved—[Mr David Davidson]—and agreed to.
Section 7—Services complaint: Commission's duty to investigate and determine
Amendment 19 moved—[Mr David Davidson].
The question is, that amendment 19 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 31, Against 64, Abstentions 0.
Amendment 19 disagreed to.
Group 5 is on amendments consequential on stage 2 amendments and other minor amendments. Amendment 20 is grouped with amendments 30, 76, 79, 152, 153, 171, 172, 174, 199, 202 to 210, 213, 214, 219, 220 and 222.
There are a number of amendments in the group, so I ask members to forgive me for the length of my comments. The amendments are consequential on work that was done at stage 2 and will make the bill consistent.
Amendment 20 is a small technical amendment. At present, section 7(3) refers to a proposal for assessment of a services complaint being made by the commission under section 7(1) but, in fact, such a proposal would be made under section 7(2). Amendment 20 will simply substitute a reference to the correct subsection. Amendment 30 will clarify that a report on a complaint that has been dealt with by mediation may be published only once the mediation has been completed. It is only once the mediation is concluded that there could be an outcome that the complainer and the practitioner accept, so it is only once that stage has been reached that the commission should be able to consider publishing a report of the mediation under section 9A.
Amendment 76 will remove a stray reference to limited liability partnerships. Other references to limited liability partnerships were removed from the bill at stage 2 on the basis that such partnerships are simply a species of incorporated practice. Therefore, there is no need to refer to them separately from incorporated practices. Amendment 79 is a technical amendment. Section 34 contains various definitions that generally apply only to part 1. Sections 35 to 35E are in part 2, so there is a wider problem with the use of a range of expressions in sections 35 to 35E that are defined in section 34. Amendment 79 will resolve the difficulty by applying the section 34 definitions.
Section 38A will insert new provisions into section 54 of the Solicitors (Scotland) Act 1980, which, as amended, will deal with appeals to the Court of Session in professional misconduct cases against individual solicitors; in cases of breach by an incorporated practice of any provisions of the 1980 act or of a professional rule regulating such practices; and in cases in which a disciplinary proceeding follows the conviction of an individual solicitor or incorporated practice of certain offences. Such appeals would therefore always involve an individual solicitor or incorporated practice and not a firm of solicitors. Therefore, the reference to "a firm of solicitors" in line 26 on page 42 should be removed, which is what amendment 152 will do.
Amendment 153 is a minor amendment that will ensure that proposed new section 45(4A) of the Solicitors (Scotland) Act 1980 will apply whenever a solicitor is restricted from acting as a principal, and not only when that solicitor has been so restricted by order of the Scottish Solicitors Discipline Tribunal under section 53(5) of the 1980 act. For instance, a solicitor might be so restricted as a result of an order of the court.
Amendments 171 and 172 will extend slightly the powers of the Scottish ministers to make, by order, incidental, supplemental, consequential, transitional or saving provisions in connection with the bill. The powers will be extended to cover provisions that give full effect to the bill or any aspect of it. That may be useful in connection with the role of the Scottish Solicitors Discipline Tribunal. For example, it will enable provision to be made by subordinate legislation to adapt the tribunal's procedures to deal with any major increase in case law that is generated by the new complainer appeals that are provided for by the bill.
Sections 36 and 37 of the bill as introduced contained broad powers for the Scottish ministers to modify, by regulations under the affirmative procedure, any enactment, instrument or document for the purpose of giving the council of the Law Society of Scotland, the Scottish Solicitors Discipline Tribunal or the Court of Session further powers as regards unsatisfactory professional conduct complaints against solicitors and other practitioners. Those were holding provisions, which it was always intended to remove once drafting of the substantive provisions that were required was completed. Those substantive provisions were inserted at stage 2 and, as a result, the broad regulation-making powers were removed, but a reference to them remains in section 49 and should also be removed. Amendment 174 will delete that reference.
Amendment 199 is a minor technical amendment. Paragraph 1(2)(a)(ii) of schedule 4 substitutes certain words for the word "or" in section 3A(5)(a) of the Solicitors (Scotland) Act 1980. However, the word "or" appears more than once in that paragraph, so amendment 199 will specify that it is the first use of the word that is meant.
Amendment 202 will resolve a small problem that Bill Aitken pointed out at stage 2. It will clarify that proposed new section 45(4A) of the Solicitors (Scotland) Act 1980 will apply only to a solicitor who has been restricted from acting as a principal and who immediately before the restriction was a sole solicitor. Those are the circumstances that are mentioned in proposed new section 45(4A). The amendment specifies that that section has no application to the circumstances that are listed in section 45(1) of the 1980 act, namely, those in which a solicitor is struck off or suspended from practice or in which the registration of an incorporated practice is revoked. Section 45(1) of the 1980 act states:
"the following provisions of this section apply in these situations",
which might conceivably be taken as including proposed new section 45(4A). Amendment 202 will remove any such false impression.
Amendments 203 to 205 and 208 to 210 are extremely minor amendments that will simply ensure that the amendments to the Solicitors (Scotland) Act 1980 that insert the word "Court", spell it with a capital letter, as is appropriate. Those are probably my favourite amendments of the day.
Amendment 206 is a technical amendment that will bring proposed new section 45(3B)(b) of the 1980 act into line with similar powers to recover documents that are contained in sections 13 and 35A of the bill, by inserting a reference to documents that relate to any trust of which an employee of an incorporated practice is the sole trustee. Amendment 207 is a very minor amendment that will simply remove an extraneous "and" from section 45(5) of the Solicitors (Scotland) Act 1980.
Amendments 213 and 214 will remove a restriction on the Scottish Solicitors Discipline Tribunal's power to fine in the case of an incorporated practice that has been convicted of an offence, rendering it unsuitable to continue to recognise it as such a practice, or which has breached a provision of the Solicitors (Scotland) Act 1980 or professional rules that regulate such practices. The relevant restriction on the power to fine is intended to avoid double jeopardy and will apply only where, in relation to the subject matter of the tribunal's inquiry, the offending practitioner has been convicted of an act involving dishonesty and sentenced to at least two years' imprisonment. Clearly, the restriction can never be applicable to incorporated practices, which cannot be imprisoned, so the references to incorporated practices should therefore be removed from the restriction on the power to fine.
Paragraph 1(6N) of schedule 4 will insert a new subsection into section 53 of the 1980 act, which will provide that a restriction on the Scottish Solicitors Discipline Tribunal's power to fine does not apply in relation to any element of a decision to which proposed new section 53(2)(bb) in the 1980 act applies. Proposed new section 53(2)(bb) will confer on the tribunal a power to award compensation to complainers in professional misconduct cases. As the power relates purely to compensation, it has no relevance to the imposition of a fine in any event and does not need to be excluded from the restriction on the power to fine. Amendment 219 will therefore remove that exclusion. Amendment 220 makes a consequential grammatical change to paragraph 1(6N) of schedule 4.
Amendment 222 repeals subsections (2A) and (2B) of section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Those subsections confer on the council of the Law Society of Scotland the power to order a rebate of fees and outlays against a conveyancing or executry practitioner or to order that a practitioner undertake rectification work where that practitioner is found to have provided an inadequate professional service. Following the enactment of the bill, all service complaints will be dealt with by the Scottish legal complaints commission, not by the council of the Law Society. It is therefore appropriate to repeal those powers.
I move amendment 20.
Amendment 20 agreed to.
Section 8—Commission upholds services complaint
Amendment 21 not moved.
Group 6 is on steps which may be taken when services complaints are upheld. Amendment 1, in the name of Jackie Baillie, is grouped with amendment 22.
At stage 1, the Justice 2 Committee—rightly in my view—considered that there is no clear rationale or justification for the proposed maximum compensation level of £20,000. Indeed, there was a feeling that the £20,000 figure bore more than a passing resemblance to what had been suggested for England and Wales, but was otherwise conjured out of nowhere in the Scottish context.
I remind Parliament that the proposals in the bill allow for maximum compensation of £20,000, through the proposed Scottish legal complaints commission, for an upheld services complaint that includes any element of negligence. I completely understand the Executive's thinking in wanting to make moderate-value negligence claims available to be dealt with by the commission, rather than only by recourse to the courts. That opens up the system to make it far more accessible to the individual complainer. For that reason, the provision is welcome.
That said, it is worth remembering that the current level of compensation, which was fixed by the Solicitors (Scotland) Act 1980, is £5,000. The figure was uprated a mere 18 months ago from £1,500. In that context, a jump to £20,000 seems quite steep. As I understood the matter from stage 2, the Executive's justification for the figure is that £20,000 is a compromise between the current level of £5,000 and the Financial Ombudsman Service's scheme, under which up to £100,000 may be awarded. I still do not understand the logic that underpins the figure of £20,000, however. It could equally well be £25,000, £30,000 or, for that matter, my more modest proposal—which I commend to the minister—of £15,000. The case for £15,000 is based on information that was provided about claims that have been made against the master policy in recent years. A substantial number of claims are below £5,000—the majority, in fact. By setting the level at £15,000, we would capture virtually all the rest. The figure that I have arrived at is based on real experience of claims that have been made.
At the time of the stage 2 debate here, clause 110 of the draft Legal Services Bill, which was considered at Westminster, also contained the figure of £20,000 for compensation. However, that included consideration of fees and outlays. In effect, the level of compensation could be lower once those had been taken into account. Our position on the Legal Profession and Legal Aid (Scotland) Bill was that it should exclude fees and outlays. Ultimately, the inclusion of the figure could have meant that we would unduly penalise lawyers in Scotland compared with their counterparts in England and Wales.
I understand that the Legal Services Bill is now before the House of Lords for its second reading, and that the position there has changed to reflect the provisions of the Legal Profession and Legal Aid (Scotland) Bill. I have no doubt that the Scottish ministers' influence now extends to the House of Lords. That is welcome in ensuring consistency where it is appropriate, but I stress that the base level of compensation at which we started in Scotland was lower: it was £5,000 and, until about 18 months ago, it was £1,500. In my view, and in that context, £15,000 is more proportionate and will still capture the overwhelming bulk of claims. I look forward to hearing the minister's comments.
I move amendment 1.
Jackie Baillie should know as well as anyone that nothing is ever "conjured out of nowhere" for legislation here or, I am sure, at the House of Lords. People devote a great deal of time and thought to such matters. The parliamentary process adds to that, which ensures that the legislation that we end up with is as robust as it can be.
Our intention in setting a compensation limit of £20,000 is to provide access to justice for complainers who seek to pursue low-level negligence actions without facing the expense, uncertainty and delay of court actions. We accept that there might be initial anxiety in some parts of the legal profession about the proposed limit of £20,000, but the bill provides a number of safeguards. First, complaints about the service that has been provided by a solicitor may be made only by people who appear to the proposed Scottish legal complaints commission to have been directly affected by the suggested inadequate professional service. Secondly, the bill requires the commission to reject any complaint that it determines to be
"frivolous, vexatious or totally without merit".
Thirdly, the bill requires the commission to assess what is "fair and reasonable" in deciding whether to uphold a service complaint and whether to award compensation and, if so, of what amount. We are confident that the new commission will behave competently and professionally in deciding on compensation.
I emphasise that £20,000 is the maximum that the bill sets for compensation. Jackie Baillie is quite right to point out that the Financial Ombudsman Service may award up to £100,000, but there is no suggestion that that amount has become the norm. We see no reason why maximum awards would be any more common for the legal profession than they are in the financial sector. In its evidence to the Joint Committee on the Draft Legal Services Bill, the Law Society of England and Wales opposed an upper limit on total redress and favoured a cap of £20,000 on compensation only.
Given that Jackie Baillie's research indicates that 90 per cent of master policy settlements fall into the up-to-£15,000 category, with a small number falling into the £15,000 to £20,000 category, I argue that it is equally logical for £20,000 to be the most appropriate maximum limit for capturing most, if not all, the low-level out-of-court negligence settlements.
I emphasise that the £20,000 limit will not be set in concrete for all time. The Legal Profession and Legal Aid (Scotland) Bill provides a power for ministers to vary the limit after consultation, by means of the affirmative resolution procedure, so that the limit can be adjusted in the light of experience. I invite Jackie Baillie to seek to withdraw amendment 1.
Amendment 22 will make a minor adjustment to section 8(2)(e), which enables the commission, on upholding a services complaint, to report any perceived lack of competence in any aspect of the law or legal practice
"to the relevant professional organisation."
That organisation may then decide whether to order the practitioner to undergo further training.
As the body that will have the lead role in legal education, it is ultimately for the professional organisation to decide whether there is a lack of competence that should be remedied through retraining. Section 8(2)(e) should refer to the commission considering that the practitioner "may not"—rather than "does not"—have sufficient competence. I thank Jeremy Purvis for pointing that out at stage 2. I urge members to support amendment 22.
I lodged a similar amendment to that of Jackie Baillie, but I am happy to support her amendment 1. The Deputy Minister for Justice has said that the ministers of the day will have the power to vary the limit. In light of the fact that the change from £1,500 to £5,000 took place only 18 months ago, I would have thought that the minister would be encouraging inflation, shall we say, and the expectation of members of the public who are not all lawyers—otherwise, lawyers would not have claims made against them and people would not be using them.
It is very unlikely that claims of more than £15,000 would be made. However, were the minister to support Jackie Baillie's amendment 1, which would make the limit £15,000, she knows that she has the powers, through the affirmative procedure, to lift the level, although she would have to give Parliament evidence that the limit needed to be lifted to £20,000. I very much support Jackie Baillie's amendment 1. I also completely accept the need for direction on training, as proposed by the minister in support of amendment 22.
Jackie Baillie asked where the proposal for a £20,000 compensation limit came from. The former Deputy Minister for Justice, Hugh Henry, gave us a clue at the Justice 2 Committee on 30 May. In response to a question from Mr Purvis, Mr Henry said:
"If you are asking where the proposal came from, it is not something that originated from us. It first arose during discussions between my officials and representatives of the Law Society."—[Official Report, Justice 2 Committee, 30 May 2006; c 2524.]
The argument that some people have made that, somehow, £20,000 is such an awfully huge amount that it will cause disaster in the legal profession sits rather uncomfortably with the statement that Mr Henry made on the record at the Justice 2 Committee some time ago.
The minister's line of argument in this debate was absolutely compelling. She made it clear that there is a range of issues to be addressed and that the Government is trying to take into account issues of negligence and inadequate professional services and to make the system more accessible for those who become concerned about such matters. The aspirations that the minister set out a moment ago are utterly consistent with what the Government is trying to do in the bill. The proposal in the bill sits comfortably with the aspirations and direction of the bill. The minister's point about Jackie Baillie's research on the range of settlements in this area proves that there is a need for an upper limit.
One of the Scottish Executive officials who spoke to the Justice 2 Committee on 25 April made it absolutely clear, as the minister has reaffirmed today, that
"The figure of £20,000 is a maximum; it is the top of the scale of what the commission can award, so it will be awarded only for the most serious cases".—[Official Report, Justice 2 Committee, 25 April 2006; c 2240.]
That is a fair characterisation of the provisions in the bill. I hope that the minister will stand firm on her line of argument.
The minister will be delighted to have Mr Swinney's robust support. I commend Jackie Baillie on her consistency and modesty in introducing a lower figure. There has been concern about the issue among solicitors. Some people have assumed that, whether the figure is £20,000 or £15,000, that will be the automatic level of compensation. Some solicitors have said that such an amount would put them out of business or that they would choose not to take business in which there was a higher risk of complaints being made against them. It is up to members in all parties to say that that concern is unfounded.
Why set a figure at all? If the determination of the proposed commission is about inadequate professional service and degree of negligence; if we are to have a more robust appeals mechanism; and if there is to be no fine—although the previous Deputy Minister for Justice made a slip of the tongue at stage 2 in suggesting that there would be a fine, but later corrected himself, which highlights the difficulty that we have had with the language that is used—but instead compensation for damage caused by inadequate professional service or negligence, why have a limit at all? If we must have one, there should be a broad window.
We heard at stage 2 that, given the additional recovery of costs, in some cases the figure would go well beyond the £20,000 mark. I agree with the minister on the ability of the proposed commission to make determinations. The intention is to catch as many claims as possible, so why set a level that would cover 90 per cent of them, rather than all of them? If we have a more robust appeals mechanism, there will be safeguards for solicitors, too.
It is also helpful, but not necessary, to have consistency with the system in England and Wales. Given that the limit in the bill provides such consistency, I assume that the Scottish National Party will support it fully.
I am happy to support Jackie Baillie's amendment 1 and I agree with the points that David Davidson made. Such things are always a matter of balance. I accept that it has been difficult for the Executive to decide the figure. A balance has to be struck between the complainer and the complainee, and between the blue-chip firms that have substantial incomes and profit margins per partner and the small firms that are the backbone of the profession and of many communities, which would if we were to undermine them, be a loss to our society as a whole. Should the figure be £20,000, £15,000, £16,000 or £19,000? Such decisions are difficult, but there has been a lot of debate within the profession and many smaller firms feel that £20,000 is too much, so I am minded to accept the points that they have made.
We have to remember that we are talking about compensation for inadequate professional services. Scotland has never gone down the road of imposing punitive damages. If serious errors are made, there are other mechanisms by which those who have suffered loss will be recompensed. We are talking about how we provide recompense in other circumstances. We are not looking to go down the American road whereby as well as compensating someone for their loss there is substantial punishment.
My colleague John Swinney is right that the level was suggested by the Law Society of Scotland, but that is a generic body into which falls a diverse profession. Today we heard about the launch of a Scottish bar association, which shows that although we have a broad profession and the Law Society has done well for its members, there are those who do not feel that they are appropriately represented in some instances. We have to deal with all aspects of the profession and strike the right balance between ensuring that people who suffer loss because of inadequate professional service are protected, and ensuring that we sustain smaller firms that would go out of business if a punitive element of damages were introduced. Such firms are important to our communities.
To be consistent with the position that I have argued before, I say that the limit is entirely clear and that there are safeguards, given that the figure is a maximum rather than anything else.
The aspiration to ensure access to the resolution of complaints for inadequate professional service and negligence is shared throughout the chamber. The disagreement is about the upper limit of compensation. I am afraid that I have to disagree with Jeremy Purvis, no matter how charming he is—it is okay, I do not mean it—because I believe that there has to be an upper limit. We need to have clarity about what properly should fall to the proposed commission and what properly should fall to the courts. I am happy to withdraw amendment 1 in the light of the minister's comments—in particular, the assurance about ministers' power to review the level. It is important that we listen to the profession and reflect on the experience of the operation of the commission.
I seek leave to withdraw amendment 1.
Does any member object to amendment 1 being withdrawn?
Yes.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Adam, Brian (Aberdeen North) (SNP)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Leckie, Carolyn (Central Scotland) (SSP)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 41, Against 64, Abstentions 0.
Amendment 1 disagreed to.
Amendment 22 moved—[Johann Lamont]—and agreed to.
Group 7 is on giving of notice, reasons and so on. Amendment 23, in the name of David Davidson, is grouped with amendments 24, 27 to 29, 33, 77, 92, 93 and 119. I draw to members' attention the pre-emption information that is shown on page 2 of the groupings list.
Amendment 23 would simply add practicality. Amendment 24 would provide for prior directions to the employing solicitor to be taken into account. Amendment 27 is a drafting amendment. Amendment 28 would provide clarity and ensure that reasons are given in every case for any determination, direction or report. In the modern way of doing things, if people are insured they get full information, which is essential. I cannot support amendment 29, which is in the name of the minister, because it directly opposes my amendment 28.
Amendment 33 is about the proposed commission naming and shaming a practitioner. It would allow the practitioner a reasonable time to take action to protect their reputation by going to appeal or seeking judicial review or an interdict, which would introduce an element of fairness. Any case in which a solicitor's name is impugned must be seen to be dealt with fairly because their reputation is their livelihood.
Amendment 77 is a 21st century amendment, which would allow for e-mail communication. Amendments 92, 93 and 119 concern style.
I move amendment 23.
Members will be aware of my instinctively consensual approach. Therefore, to support amendments 23, 24, 27, 33 and 77 gives me no pain. We urge members to support the Executive amendments in the group, but we resist amendments 28 and 93.
On amendment 23, our policy is that the professional bodies should decide whether a practitioner is sufficiently competent in any aspect of the law or legal practice. That policy is appropriate because the professional bodies are responsible for admission to the profession and take a close interest in the education and training that their members require.
The function of the proposed commission, as will be clarified by Executive amendment 22, will be to report to the professional body when it suspects that a practitioner may not have sufficient competence in a particular aspect of the law or legal practice. As the professional body must make a decision on such matters, it is not essential to require the commission to copy its report to the employing practitioner in advance of a decision by the professional body. The professional bodies will no doubt judge for themselves whether to inform employing practitioners of decisions on the training needs of their employees but, on balance, we see no difficulty in requiring the commission to send a copy of any report under section 8(2)(e) to the employing practitioner. Therefore, I am content to support amendment 23.
Amendment 24 seeks to ensure that the commission takes into account prior directions that have been given to the employing solicitor and that the commission must, in considering what steps to take under section 8(2), take into account any prior direction that has been given under section 8(2)(d) not only to the practitioner, but to the employing practitioner. I thank David Davidson for lodging the amendment, which I support.
We also support amendment 27, which follows up the logic behind section 8(2A), which we proposed at stage 2. There is a case to be made for the employing practitioner receiving a copy of the documents.
I understand the concern that underlies amendment 28. Currently, section 9(2) provides that reasons need be given only when a determination has been made by a determination committee, which suggests that reasons need not be given when a determination has not been made by a determination committee—for example, if it has been made by the proposed commission or when a direction or report has been given. However, the amendment overlooks the fact that schedule 3 to the bill will require the commission to make rules on when reasons are to be given, expressly in circumstances in which they are not required to be given in the eventual act itself, for determinations, directions, decisions or recommendations under part 1 and in respect of related matters. There is a mandatory rule-making power, so the commission must make rules and consult interested parties before making or varying them. Therefore, I urge David Davidson not to press amendment 28 as it is inappropriate.
Amendment 29 is a small technical amendment that will replace a reference to paragraph 13(1A)(c)(i) of schedule 1 with a reference to paragraph 13(1A)(d)(i) of schedule 1.
Amendment 33 would require the commission to give the practitioner notice of its intention to identify the practitioner in a report. We do not envisage the commission having regular recourse to the sanction of naming and shaming a practitioner against whom it has upheld a services complaint, which is why the bill sets a high threshold for such action—namely that the case is exceptional and that it would be in the public interest, in the opinion of the commission, for the identity of the practitioner to be included in the report. However, it is important to be scrupulously fair to the practitioner while seeking to protect the public. Therefore, I do not oppose practitioners' receiving a four-week period of notice.
I appreciate the thinking behind amendment 77, on the giving of notices by electronic means, and I have no objection to supporting it. Its approach is consistent with the approach that is taken to individuals and may serve to ensure that notices are safely received.
Amendments 92, 93 and 119 will impose a duty on the council of the Law Society to supply reasons in relation to its decisions on complaints of unsatisfactory professional conduct. Amendments 92 and 119 will, respectively, apply to complaints against solicitors and conveyancing and executry practitioners. They follow the pattern that is followed by section 9, which requires a determination committee of the commission to provide reasons only for its determinations, such as on whether to uphold a complaint, and not for its directions, such as requiring a certain amount of compensation to be paid, although the commission will have the power to specify in its rules additional circumstances in which reasons must be given. Amendments 92 and 119 therefore seek to put the council in a similar position to the commission as regards the duty to provide reasons.
Amendment 93 would apply to complaints against solicitors only, but otherwise goes further and would require the council to give reasons for the particular sanction that has been imposed. However, in the case of a censure, the only reason that could be given is that the council is under a duty to censure all solicitors who are found guilty of unsatisfactory professional conduct under proposed new section 42ZA(3)(a) of the Solicitors (Scotland) Act 1980, which will be inserted by section 36 of the bill. In the case of other sanctions, it may be difficult to specify exactly why, for example, a fine of £1,000 has been imposed rather than a fine of £800 or £1,200. The council will have to make judgments about what is broadly appropriate in the circumstances.
I thank the minister for her consensual approach and will not speak to the amendments that she supports. I support her amendments in the group, except amendment 29. However, I will press amendment 28.
Amendment 23 agreed to.
Amendment 24 moved—[Mr David Davidson]—and agreed to.
Section 8A—Fair and reasonable: matters to be taken into account by Commission
Group 8 is on matters to be taken into account in considering what is fair and reasonable. Amendment 25, in the name of David Davidson, is grouped with amendment 26. I draw members' attention to the pre-emption information on the groupings list.
Amendment 25 would ensure that the proposed Scottish legal complaints commission will be bound by the law in all that it does, and that decisions that are made will apply in other courts of law and tribunals. It should be compulsory for the SLCC to be bound by the law. The matter is simple.
Amendment 26 will be a welcome addition to the bill.
I move amendment 25.
I call Jeremy Purvis.
I am concerned that consensus will break out in the chamber. I therefore oppose David Davidson's amendment 25. I support amendment 26.
The bill's current wording takes into account relevant laws and rules, and it seems clear that the proposed commission would not take into account rules and conditions that were not in force at the time of the complaint, as they would not be relevant. A case could be made that that would be clearer if it were included in the bill, but the essence of the matter is the question whether the commission is determining whether inadequate professional service has been provided and whether relevant laws are being taken into account.
Amendment 26 takes into account damages that have been awarded by courts. The approach is sensible and will mean that there will be a close correlation between the operation of the proposed commission and the courts in similar circumstances. I oppose amendment 25, but am happy to support amendment 26.
I call the minister to speak to amendment 26 and the other amendment in the group. I apologise for not calling her before I called Mr Purvis.
In the midst of our technical debates, it is useful to remind ourselves that the commission is to be set up as a consumer complaints handling body in order to provide quick and effective solutions for practitioners and complainers alike, and to award redress where appropriate.
Amendment 26 will make a small but—I hope—reassuring addition to section 8A of the bill. I am aware that some people are concerned that the new commission may award large sums in compensation for minor lapses in service standards, but that fear has no basis. Experience of similar schemes, such as in the Financial Ombudsman Service, shows that compensation for distress and inconvenience without financial loss—the so-called botheration factor—is unlikely to be more than a few hundred pounds. There is no reason to think that substantial compensation will be ordered if no substantial financial loss has occurred.
We sought to reassure people who were concerned about that at stage 2 by imposing a specific duty on the proposed commission to take account of the relevant law, which would obviously include the law of negligence. Amendment 26 will add the further clarification that the relevant law includes levels of damages that are awarded by the courts in similar circumstances. I hope that that will make clear what we have always said: when a services complaint might alternatively have been brought as a court action, compensation will be broadly in line with what a court would have ordered.
Nevertheless, it is a key element of the new scheme that the proposed commission will take the lead role in setting and policing service standards, drawing on the expertise of both its non-lawyer and lawyer members. Amendment 25 would be inappropriate and unduly restrictive in relation to the commission's deliberations. The bill already provides that the criterion that the commission must apply to its determination of complaints and awards of redress is what is fair and reasonable in all the circumstances. In our view, that is an entirely appropriate and well-precedented criterion, which the Financial Ombudsman Service already applies successfully.
I urge members to support amendment 26 and I ask David Davidson to seek to withdraw amendment 25.
The point behind amendment 25 is that the commission should, when it makes a determination, be bound by the law that is in force at the time of the service provision. It is a tidying amendment. Although I am not totally convinced, I think that the minister has gone some way towards that. Therefore, I seek to withdraw amendment 25.
Amendment 25, by agreement, withdrawn.
Amendment 26 moved—[Johann Lamont]—and agreed to.
Section 9—Services complaint: notice where not upheld or upheld
Amendment 27 moved—[David Davidson]—and agreed to.
Amendment 28 moved—[David Davidson].
If amendment 28 is agreed to, I will not call amendment 29 because of pre-emption.
The question is, that amendment 28 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Canavan, Dennis (Falkirk West) (Ind)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 37, Against 66, Abstentions 0.
Amendment 28 disagreed to.
Amendment 29 moved—[Johann Lamont].
The question is, that amendment 29 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Murray (West of Scotland) (Con)
The result of the division is: For 88, Against 15, Abstentions 0.
Amendment 29 agreed to.
Section 9A—Services complaint: reports
Amendment 30 moved—[Johann Lamont]—and agreed to.
Amendment 33 moved—[David Davidson]—and agreed to.
Section 11—Complaint appears during mediation or investigation to fall within different category
Group 9 is on a complaint that appears during investigation etc to fall within a different category. Amendment 34, in the name of David Davidson, is grouped with amendment 35.
Amendment 34 is a simple amendment that, for clarity, points out that professional organisations are not involved in mediation.
Amendment 35 would keep professional organisations in the knowledge loop. That is an important part of the bill. The ministers have, where possible, tried to ensure that all those who are involved in a complaint will have knowledge of it. Amendment 35 simply adds something that was not quite there.
I move amendment 34.
Robin Harper has pressed his request-to-speak button. Do you wish to speak, Mr Harper?
No.
I accept that the bill does not prescribe detailed procedures for professional bodies to follow as regards the possible mediation of conduct complaints remitted to them by the commission. That should not, however, be interpreted to mean that mediation is not an option for professional organisations. It is highly desirable, in policy terms, that mediation of a complaint should be pursued whenever it is sensible for that to be done. It is not inconsistent, therefore, that section 11(1) includes two express references to mediation by a professional organisation. I note also that amendment 34 has been drafted on the basis that there is only one such reference. For both policy and technical reasons, therefore, I cannot support amendment 34 and I invite David Davidson to withdraw it.
I agree that, when it appears to the commission that it is reasonably likely that a services complaint may be re-categorised as a conduct complaint, it is reasonable that there should be a reciprocal requirement to transmit the complaint and related material. I accept that the bill should require the commission to send a copy of the complaint and other material to the relevant professional organisation, just as a professional organisation is already obliged to do in the reverse situation. I therefore urge members to support amendment 35.
I thank the minister for her support for amendment 35. I wish to press amendment 34.
The question is, that amendment 34 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 37, Against 64, Abstentions 0.
Amendment 34 disagreed to.
Amendment 35 moved—[Mr David Davidson]—and agreed to.
Amendment 36 moved—[Mr David Davidson].
The question is, that amendment 36 be agreed to. Are we agreed?
No.
There will be a division.
I point out to Malcolm Chisholm that he may have pressed the wrong button.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 36, Against 63, Abstentions 0.
Amendment 36 disagreed to.
On a point of order, Presiding Officer. In what circumstances can the chair advise members how to vote?
Malcolm Chisholm appeared on my list of people who wished to speak at a point when nobody should have wished to speak. A minute ago, I said the same thing to another member. I am pretty fair about that.
I am talking not about speaking, but about voting. I understood you to say that Malcolm—
Excuse me—my reference was not to how Malcolm Chisholm voted. I pointed out that I thought that he had pressed the wrong button, because his name appeared on my screen. I did exactly the same thing two minutes before.
Amendment 37 not moved.
Section 12—Power to monitor compliance with directions under section 8(2)
Group 10 is on appeals against commission decisions. Amendment 38, in the name of David Davidson, is grouped with amendments 2, 3, 3A, 3D, 3B, 3C, 3E, 3F, 4, 4A, 237 and 238. [Interruption.] Could we have a bit of order, please? I draw members' attention to the pre-emption information that is shown on the groupings list.
The group deals with a key component of the bill, on which the bill could pass or fail. It is grossly unfair to create a system with no form of appeal. We allow appeals for people who have broken the law on other matters and who have become criminals. The system in the bill is unfair.
I know that Jackie Baillie will perform her duties in pushing her amendments and I am sure that she will do so extremely well. The only reason why we have amendment 38 is that the bill as amended at stage 2 did not mention appeal, so amendment 38 was meant to tidy wording that had appeared to suggest that an appeal might exist, although no provision for appeal was made.
The bill's key failure has been the lack of an appeal process. The Law Society has obtained two opinions from Lord Lester that make it clear that the bill could be challenged as a result. I am sure that other members will speak to that effect.
I ask the minister to say in response to the group 10 debate whether she will accept Jackie Baillie's amendments, which would help to make the bill more reasonable. If the minister will not accept them, I may press my amendments in the group.
I move amendment 38.
I support amendments 2, 3, 3D, 3E, 3F, 4 and 4A, which are in my name and that of Jim Wallace. Positive partnership working has taken place between me and my Liberal colleague Jim Wallace and between back benchers and ministers in arriving at this point. Without that and the ministers' willingness to listen, I am not sure whether the amendments would have succeeded. I am delighted that, as I understand it, the Executive will support the amendments.
Most members will be aware of the Law Society's concerns and the debates at stages 1 and 2 about European convention on human rights compliance, with the focus on the commission's independence and the absence of an external right of appeal. I pay tribute to the Law Society for its work on the issue, but I confess that I will not dwell on the relative merits of the opinions that have been obtained; rather, I will focus on what the amendments would do.
The amendments would provide a right of appeal to the Court of Session against decisions of the commission. However, the right would not be automatic. We would provide for leave to appeal, which would need to be sought from the Court of Session. That would remove any vexatious or unfounded appeals.
Appeals would be allowed only on the grounds that are set out in our amendments, which are that the commission's decision was based on an error of law, that a hearing that the commission conducted had a procedural problem, that the commission acted irrationally in exercising its discretion or that the commission's decision was not supported by the facts that were found. In those circumstances, we do not envisage a significant number of appeals. The proposed provision is not unusual. Members will of course recall that the Mental Health (Care and Treatment) (Scotland) Act 2003 allows for decisions of mental health tribunals to be appealed to the Court of Session on similar grounds.
On a point of principle, it is important to have an external right of appeal against commission decisions. However, I am not in favour of creating a mechanism that would delay unduly the resolution of complaints for individual complainers. The creation of the commission will speed the process. Amendment 3 recognises that. It is proportionate and fair and I hope that the Parliament will support it.
I declare an interest as a Queen's counsel and a non-practising member of the Faculty of Advocates.
I reciprocate Jackie Baillie's comments about partnership working—ministerial old lags getting together. I thank the minister and the deputy minister for their willingness to engage as we genuinely sought to ensure that our amendments would improve the bill.
I strongly support the amendments that Jackie Baillie lodged. The amendments that stand in my name would purely tidy provisions—if a minister had lodged them, they would be technical amendments. The most significant of my amendments is perhaps amendment 3E, which would replace the word "unreasonably" with "irrationally". The reason for that is that, on reflection, it was thought that the courts have considered the word "irrationally" in the past.
I will not move amendment 237, because it represents a fallback position. I hope that we will hear from the minister the reasons why we will not need the fallback position.
As has been said during the debate, the belief is that an appeal to the court should be possible against a determination by the commission that could lead to a financial penalty and have the great potential to damage a practitioner's reputation. Opinions have been obtained from Lord Lester about whether the bill complies with the European convention on human rights—David Davidson referred to that. I am the first to acknowledge that whenever opinions are obtained on contentious legal points, it is almost inevitable to have a judgment that leads one person to take one side and another person to take the other side. However, when we legislate, it is important to put issues beyond doubt. That is why we propose the appeal mechanism.
It has been suggested that judicial review would be sufficient, but there is emerging case law on that, such as the recent European Court of Human Rights case of Tsfayo v the United Kingdom. Indeed, the decision of Lord Mackay of Drumadoon in Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting reserves an opinion on whether judicial review is sufficient in such circumstances.
What position would Mr Wallace adopt when the Scottish legal complaints commission rejected a member of the public's complaint? Do the amendments that he supports pose the danger that the level playing field that the Government has created in the bill would be tipped in favour of practitioners rather than complainers, because the public will be less likely and less able to secure the legal representation that would allow them to put their case before the Court of Session?
I do not accept that. Subsection (2)(a) of the new section that amendment 3 would insert would allow the complainer to take a case, and people cannot complain if the rights that are available are extended to complainers. I assume that in the vast majority of cases, the complainer would be entitled to receive legal aid.
As Jackie Baillie mentioned, there is not meant to be an automatic right of appeal. People would have leave to appeal, but a stringent test would be applied. John Swinney made a point about the position of the complainer, but that is why we have made provision in the amendments for the commission to be the respondent in an appeal. If the legal practitioner lodged the appeal, the complainer would not have to bear the burden of defending the commission's decision—the commission would be able to step into the complainer's shoes and to take responsibility for that. Some may see that arrangement as having a further attraction, because under the bill the commission would be funded substantially—indeed, almost exclusively—by the legal profession. Either way, the legal profession would bear the cost of proceeding with an appeal. As Jackie Baillie indicated, the Mental Health (Care and Treatment) (Scotland) Act 2003 already makes provision for a tribunal to be party to any appeal to the Court of Session.
I conclude by acknowledging that some people may find it difficult to subscribe to an appeal mechanism that may be seen as giving rights to lawyers. I recognise that by becoming a politician I probably took a step up in the popularity stakes for professions. As someone once said, the trouble with lawyers is that in the "Oxford English Dictionary" lawyer appears halfway between laxative and lavatory. I have always believed that the real test of belief in human rights is not whether we give rights to the underdog or to people whom we like, but whether we are prepared to concede at least some rights to people about whom we may have doubts. As Jackie Baillie said, this is a balanced, proportionate response to a genuine issue that the Law Society and others raised. I commend Jackie Baillie's amendments and the associated tidying-up amendments.
There has been a lot of talk of consensus and partnership working, and here I find myself coming to the defence of what I understood to be the Scottish Executive's position before the start of this morning's debate. My goodness, that is a sign of things to come in the months ahead.
Members must think carefully about the amendments in this group before we proceed. I agree with David Davidson that section 12 of the bill is critical. The amendments would alter fundamentally the character of the bill that the Government introduced. The objectives of the bill in respect of this area of policy are threefold: first, to create a level playing field between those who deliver legal services and those who complain about their delivery; secondly, to simplify the process; and thirdly, to avoid lawyers judging lawyers, to put it in a colloquial fashion. The former Deputy Minister for Justice argued that point very effectively in committee. If we agree to the amendments, we will undermine the three objectives that I have set out.
I am involved in this debate because of my experience of sitting in front of constituents who have spent far too much of their lives seeking recourse because of dissatisfaction with the conduct of the legal profession. Their experience of the current system is that they are passed from pillar to post regularly and frequently. They may make a complaint to the Law Society of Scotland. The heads of complaint are edited by the Law Society and the edited complaint is put before the client relations committee. If the committee finds against them, they may appeal to the Scottish legal services ombudsman, who may find in their favour and send the case back to the client relations committee, which will judge it again and may find in their favour. The case will then go to the Scottish Solicitors Discipline Tribunal. By the time that that happens, years of people's lives have slipped past. That is the current position, which is why the Government has done us a service by introducing the bill.
Another characteristic of the current approach to seeking recourse to the legal system is that when people have a complaint about another solicitor, they find it extraordinarily difficult to secure legal representation to pursue their concerns when their case gets near to a court. If members do not believe me, I can cite to them constituency cases that I have handled and extracts from a petition for judicial review that was made to the Court of Session. The petition includes a quotation from a letter from a Mr Pritchard, who was the secretary to the Law Society of Scotland. He wrote to a firm of solicitors:
"I am anxious that you should protect your back in this matter because every solicitor who has acted for"
the person concerned
"has ended up with a claim against them … You will appreciate that this is a private and confidential letter not to be shown to Mr McIntyre the sole purpose of which is to give what I hope is helpful advice to protect you and your firm."
The Law Society was giving quite active encouragement to a practitioner not to act to deliver legal representation to an individual. That is the current system, which is why it is so important that the Executive's bill is passed.
The difficulty with the amendments that Jackie Baillie and Jim Wallace have lodged is that they make the playing field uneven. If the commission supports a complaint against a practitioner, the practitioner is able to seek leave from the court to appeal and the commission will defend its decision. If the commission rejects a complaint, the practitioner will be happy with the situation and will have no reason to seek recourse, but if the complainer wants to have the same rights and access to the system that the practitioner would have if their roles were reversed, they must secure legal representation and leave to appeal from the court, and must pursue an action. Mr Wallace says that in almost all circumstances the complainer would be entitled to legal aid, but that is a very unlikely proposition to be argued as a fail-safe in this debate.
We must be careful not to undermine the fundamental character of a bill that is very robust and gives us certainty about where we are going. I close by quoting an exchange that took place at the Justice 2 Committee on 30 May. Mr Butler asked Hugh Henry, then Deputy Minister for Justice:
"Do you agree that, setting aside costs … the correct body to hear an appeal would be the sheriff court?"
The deputy minister replied:
"In a sense, such an appeal would defeat the whole purpose. We have attempted to create something that is easy to access, simple to pursue and not a financial burden on an individual member of the public who feels aggrieved."
He went on to say:
"We could argue that that would introduce the potential for those with the greatest resources to use that route if, for whatever reason, they did not want a commission decision to be upheld. That would fundamentally weaken what we are attempting to achieve."—[Official Report, Justice 2 Committee, 30 May 2006; c 2516.]
That is an absolutely fair statement of the Government's position, which recognises that we are in an age in which the rights of the consumer must be protected. I hope that members will think wisely before agreeing to the amendments that Jackie Baillie and Jim Wallace have lodged.
This issue taxed the Justice 2 Committee and is now taxing the Parliament. After a well-considered argument from John Swinney, it is worth my reflecting on some of the points that he made. Although some of his analysis was correct, his conclusions are incorrect. There has been concern that if there is no appeal mechanism, the whole bill will be undermined on human rights grounds. That concern applies not only to solicitors but to complainers.
The amendments that we are considering today are the result of the combined work of Jackie Baillie and Jim Wallace. Jim has been more charming than me in his overtures to Jackie, but I suspect that his description of her as a ministerial old lag has placed that at risk. It is proposed that there should be grounds for appeal over and above judicial review. The bill has always made provision for people to seek a judicial review of the processes of the commission, regardless of whether an appeal mechanism exists. However, the amendments make very clear the grounds for appeal that complainers will have. For example, subsection (4)(d) of the new section that amendment 3 would insert states
"that the Commission's decision was not supported by the facts found to be established by the Commission."
If there were no mechanism to appeal to the court and the bill was left as at stage 2, any complainer who still believed that the commission had drawn the wrong conclusion on the facts that it had itself defined could go through the entire appeal process without the ability to review that decision. That is one of the fundamental reasons why Jackie Baillie's and Jim Wallace's amendments are better than the discussion that we had at stage 2.
To be fair to the previous Deputy Minister for Justice, an automatic appeal would undermine the case of those people who wanted to avoid going to court—
Will Mr Purvis, who is on the Justice 2 Committee, reflect on the closing part of Mr Swinney's comments in which he quoted the previous Deputy Minister for Justice? As I recall, Mr Swinney quoted the minister in reference to an amendment about an automatic appeal to the sheriff court, which would have changed the balance between the complainer and the practitioner. That is very different from setting a high bar on granting leave to appeal to the inner house of the Court of Session.
Yes, indeed, I fully accept that. In our stage 2 debate we also looked at the internal mechanisms in the commission. The bar is higher and the tests that have to be set to allow a complainer to seek leave to appeal to the court are more stringent than those discussed at stage 2.
I point out that the exchange between Mr Butler and the then deputy minister that I quoted was at stage 1, not stage 2.
Do not Mr Wallace's comments in his intervention make my point even stronger? If the bar is set so high, it makes it much more likely that those who are not sophisticated in their use of the legal system will find it more difficult to seek recourse through the Court of Session.
That would be a fair point, if it were not for the fact that the amendments seek to extend the ability of a complainer to appeal, whether they are a solicitor or an individual. I take on board the point that we should avoid as far as possible any complainer having to go to the courts. That is why the commission will be able to consider cases of negligence and allow the payment of a high level of compensation.
Where there are significant financial penalties and potential repercussions for the reputation of a solicitor and where a complainer might feel that the commission has not carried out its duties correctly and come to a perverse or wrong decision on the basis of the facts, I do not accept that there should be no further recourse. That is the point of principle that we are discussing.
It is true that the bar is high, but appeals will be made in extreme cases and unusual situations and there must be specific ground for appeal. I do not accept the argument that, if there were no bar at all, we would cut out completely the ability of any complainer to take their case further. The proposals in Jackie Baillie's and Jim Wallace's amendments are a better way to proceed than those that we discussed in previous stages of the bill. I commend the Executive on supporting them as well as Jackie Baillie and Jim Wallace on lodging them.
Amendment 3 is important. I make it clear to the minister that what she says will largely determine our attitude towards supporting the bill or otherwise at the end of the day.
Although the arguments were well canvassed during stage 2 consideration, they are still relevant. We are dealing with a point of equity. We would be completely inconsistent if we were to deny rights of appeal to any particular party. Much has been said today about ministerial old lags, but the old lags in a criminal court always have a right of appeal.
I have looked at the two legal opinions on this matter and found to be absolutely compelling the opinion of Lord Lester of Herne Hill that the bill as it stands would fail the test in article 6 of the ECHR. The minister might question that, but I would be unhappy if the Parliament had to take such a test in a court of law—it is an extremely fine point that we would lose. I return to the point about equity. Of course there must be a balance in all things and John Swinney is correct to say so, but at the moment, the balance is incorrect.
Let us look at what Jackie Baillie suggests in her amendment. It is not a question of there being an appeal on matters of fact. It is difficult in any court, whether it deals with a civil action, a sheriff summary action or even a jury trial in the High Court, to appeal on the basis of the facts. The facts have been determined either by a jury, a judge or a sheriff and any appeal against such a decision is most unlikely to succeed.
What is suggested in the amendment is completely consistent with that because the appeal would be on the ground of an error of law based on a procedural impropriety, as it is defined, or that the commission has acted unreasonably. There is nothing wrong with that. It is also submitted in amendment 3 that the appeal should be granted only with the leave of the Court of Session. I would imagine that such appeals would be as rare as hen's teeth, but nevertheless, the provision must exist if we are to comply with the ECHR and with common equity. I look forward very much to what the minister has to say and I hope that she is able to persuade us that the Executive recognises that what is proposed is the way forward and that wiser counsel has prevailed.
We have been discussing one of the most contentious parts of the bill, which, as others have said, has been well debated in and out of committee. Forceful assertions have been made on both sides about ECHR compliance if there were to be no right of appeal to the commission. Amendment 3 seeks to ensure that the concerns of the Law Society, the Faculty of Advocates and others are addressed.
I do not want to see the balance of justice swing away from the complainer—the man or woman in the street. The reason behind the setting up of the commission is to take regulation out of lawyers' hands so that the complainer may have more confidence in the system. However, my fear is this: if there were an automatic right of appeal, although every substantial claim would be appealed and funded by the solicitor's insurers, who would fund the claimant?
Two aspects of Jackie Baillie's amendment give me comfort. First, it proposes that the commission and not the claimant would be the party in court. Secondly, inclusion of the phrase
"with the leave of the court"
would ensure that an appeal to the Court of Session will not become an automatic part of the complaints process, thereby making the commission effectively redundant.
As John Swinney asked, what opportunity is there for a claimant to appeal to the Court of Session? Despite what Jim Wallace says, it is not easy for someone to qualify for civil legal aid. As a result of the limiting factors that are proposed by Jackie Baillie in her amendment, I am prepared to consider supporting it, but I will wait to hear the minister's response to the points that were made by John Swinney on the position of the complainer.
My colleague John Swinney made some valid points about the difficulty that arises in balancing the interests of those with professional knowledge who are complained against and those who do not have such knowledge who make the complaint. The same difficulty arises whether one's complaint is against the medical or dental professions, psychiatrists, mechanics or plumbers, about whose professions we have little knowledge. It arises whenever someone provides specialist services while the person who complains about them does not have the same knowledge.
I accept that the matter is complicated in the legal profession because of the court system. Two points follow from that. First, the idea that there is a cosy consensus between lawyers does not apply in my experience. Many of the complaints that are made are against not court solicitors but conveyancing lawyers. There is no real warmth or support among lawyers in such situations. Secondly, the ethos of the profession is that a lawyer is an officer of court and carries out actions irrespective of whether they oppose a friend. To the credit of the legal profession, that ethos remains and I am not aware of instances in which it has been breached.
I do not think that we can avoid the situation. It is a conundrum that we simply cannot address, although we have tried in the context of the medical profession. Ultimately, imbalance remains and always will do. We must ensure that we have the appropriate checks in place. Maureen Macmillan's points have been addressed by others' comments.
The two fundamental points are the principle and the practicality. The principle is whether there should be a right of appeal. We are told that we have signed up for the ECHR, and there may be complaints about it. We have accepted in other matters that there should be a right of appeal, and that not to have such a right would be manifestly unjust. It would be perverse simply to say to a section of society, "You are lawyers. You're not getting an appeal that everybody else can have." We have to accept that that would be fundamentally perverse.
The practicality is that, even if we do not establish a right, there will be appeals, as Jeremy Purvis and other members have said. If we think that having a commission and not encompassing a law of appeal, taking on Lord Lester's judgment, or doing all the things concerning principle, will mean that there will never be an appeal, we are wrong. There will be appeals; they will come about by judicial review, in a piecemeal fashion and in a rather disorderly manner. It is much better that we get ahead of the game, that we set the rules, and that we say that people can appeal only on cause shown and only if they come under certain criteria. We must address the matter of imbalance, so that if somebody makes a complaint that is upheld by the commission, an appeal is brought in. Maureen Macmillan referred to that.
Anybody who has tried complaining against lawyers should try complaining against the medical and dental professions. The Medical and Dental Defence Union of Scotland steps in and says, "We're going to fight this all the way." That is why the commission must become the party that says, "We got it right, and whether Mr or Mrs Smith wishes to attend is a matter for them. That can be minuted in the proceedings, but we decided in their favour and we got it right. We will go to the Court of Session and say that they were dealt with badly and that we will fight their corner." That manifestly addresses the issue.
We have no alternative but, on a point of principle and on the basis of practicality, to introduce an appeal. I recognise that questions are raised about rights and access, but that transcends a variety of occupations, from artisans through to the professional classes. It would be manifestly unjust if we did not have a right of appeal. I believe that the caveats that have been added will ensure that it is not simply a procedure that will allow people to go first to the commission and then to the court. That is not what it is about. People will go to the commission, but it would be perverse for the Parliament to pass legislation that maintains something that is perverse and wrong, by not allowing an appeal or, even worse, by allowing cases simply to be dealt with piecemeal through judicial review. That is why the amendments must be agreed to.
Members will have recognised from the tenor of the debate that ministers have decided to support the amendments that were lodged by Jackie Baillie and Jim Wallace, namely amendments 3, 3D, 3E, 3F, 4 and 4A. It is clear to us that we should support that position rather than the one behind Mr Davidson's amendment 38.
There has been some discussion, as we have recognised, about the way in which people have engaged with the debate from all sides and have sought to get solutions that people find acceptable. That applies both internally, across the Parliament, and externally, because stakeholders beyond the Parliament have an interest in the bill. However, the debate has not been helped by those who have chosen to substitute lambast for debate and who think that by battering people over the head they can somehow persuade them of the strength of their argument. Nevertheless, there have been those externally who have been willing to recognise the challenge that the Parliament faces. I urge John Swinney, who clearly has a record on the matter, based on his local experience, not to allow himself to be put in a position whereby that becomes the acid test of the bill, as others have sought to do. There is agreement on a huge number of things in the bill, and I do not accept that we stand or fall by our position on specific amendments on the right of appeal.
The key amendments in the group concern the type of appeal that there should be against commission decisions and touch on issues that have been of concern to many members. A particular concern has been whether the type of appeal that we have is sufficient to bring the bill within the competence of the Scottish Parliament by properly respecting the rights of practitioners under the European convention on human rights. Bill Aitken mentioned the opinion of Lord Lester QC, commissioned by the Law Society of Scotland, which has suggested that the existing provisions of the bill may not be compatible with convention rights. In reality, any bill could be challenged on those grounds. That would be tested largely through the courts, but we are absolutely clear that the bill—[Interruption.]
That must be Lord Lester on the phone. [Laughter.]
I apologise, Presiding Officer.
Any bill could be challenged on those grounds, but we are confident that we have advice that says that the bill is compatible with the ECHR. As a matter of course, we do not introduce legislation willy-nilly that has not been tested in that way, and we are confident of the advice that we have on the bill's competence. We take competence seriously, and I would like to explain briefly why we are confident that the provisions in the bill are ECHR compatible, and to explain that we have examined all the suggestions on their merits and gone further than the ECHR demands if the case was well made.
The specific question is about whether the provisions of the bill relating to the determination by the commission of complaints against members of the legal profession provide those members with a convention-compatible remedy. Article 6 of the convention provides that, in the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Since the decisions of the commission would, in some cases, amount to a determination of a practitioner's civil rights, article 6 applies. However, I ask members to note that article 6 does not require there to be a full appeal in the usual sense of the word. One of the principal aims of the Scottish ministers in promoting the bill was to provide people who had genuine complaints about the quality of legal services with a quick, efficient, consumer-friendly way of resolving those complaints, avoiding the expense and delays of a court-based system, and so that good decisions could be made that took the complaints seriously and sought to make a judgment on whether the complaints were legitimate.
There was a perception—I put it no higher than that—that the system that was operated by the professional bodies was obstructive, overtechnical and slow; I suspect that John Swinney would put it higher than that. However, we were not trying to write a charter for professional complainers. There are awkward clients just as there are inefficient lawyers. The challenge for us in preparing the bill was to get the balance right and to deliver the type of complaints-resolving machinery that I have described, while also protecting the legitimate interests of all parties.
When we introduced the bill, we did so on the basis that it was within the competence of the Parliament, as is the case with any bill. When the Law Society raised its concerns about human rights, we took them seriously, recognising that the Law Society is an organisation that looks beyond the narrow interests of its members to the wider constitutionality of legislation. Accordingly, to address those concerns, we went further than the human rights convention perhaps required and took steps to make it explicit in the bill that the commission would be an independent and impartial tribunal in human rights terms. We further distanced ministers from the commission, we provided for fixed-term appointments, we put dismissals in the hands of the chairing member and the Lord President of the Court of Session, Scotland's most senior judge, and we required any determination committee to be chaired by a legal member of the commission. In fact, we went the second mile to address the Law Society's points about the constitution of the commission from an ECHR perspective. In our view, the commission is now clearly independent of Scottish ministers and impartial as between the parties to the dispute.
We have not stopped there. We have lodged amendments to require the commission to consult the Lord President on the rules of the commission. Furthermore, Executive amendment 26, which we have already discussed, requires the commission to take account of awards made by other courts when it comes to fix compensation levels. That allays a major concern of the legal profession that awards of the commission might get out of step with those in the courts. Of course, rules about the practice and procedures of the commission must themselves be compatible with the convention. The bill makes it mandatory that the rules must provide for when hearings are to be available in relation to complaints and whether they should be in public or in private, and there must be rules for the giving of reasons for decisions, where they are not already in the bill. The bill already contains the framework for the commission to make its rules in a way that is wholly compatible with the convention.
It is clear and necessary that we strike a balance with the legislation. David Davidson's amendments seek a full appeal on all matters of fact and law, but that is one step too far for us to go. If we agreed to the Law Society's continued demands for a full right of appeal to the ordinary courts, we would lose one of the most important features of the bill—the provision of quick, consumer-friendly resolution of disputes between lawyers and their clients. We would risk the whole process becoming submerged in long, drawn-out appeals on technical grounds, and there is no reason for us to do that. It is not legally necessary and it is not right on the merits of the issue.
However, we have examined the amendments that were lodged by Jackie Baillie and Jim Wallace, and we have decided to support them because they would preserve the essence of the current policy, not undermine it in the way that John Swinney fears. David Davidson's amendments would allow a full appeal on fact and law, whereas in Jackie Baillie and Jim Wallace's amendments the grounds are limited first to error in law; secondly to procedural impropriety if a hearing is held; thirdly to cases in which the commission has acted irrationally; and fourthly to cases in which the commission's decision was not supported by the facts found to be established by the commission—according to the classic House of Lords analysis of the formulation, that the facts found by the decision-making body are such that no person acting judiciously and properly instructed as to the relevant law could have come to the decision under appeal. We recognise that that is not contrary to our policy, but supportive of it.
We are happy to support a restricted right of appeal to the Court of Session. The proposed provision responds, as far as we are able to do so, to the Law Society's campaign for an appeal mechanism but it does not go as far as to provide for a full appeal on fact and law because we need to preserve the commission's ability to work in the interests of consumers by moving quickly and without unnecessary delay. The restricted right of appeal will not affect the policy aims underlying the creation of the Scottish legal complaints commission. The small number of important appeals that might go to the Court of Session by this route will emphasise the commission's ultimate accountability to the courts for its decisions. Our decision to accept a restricted right of appeal to the Court of Session should reassure MSPs and others who have followed the bill closely that the commission will be a properly accountable body.
A welcome feature of the Parliament's consideration of the bill is the consensus that has been built on key issues. That is demonstrated by our decision to support amendments 3, 3D, 3E, 3F, 4 and 4A. No matter how those amendments might have been characterised, they will ensure that practitioners have a limited and very restricted right of external appeal while sustaining our ultimate policy aim for the commission. I assure members that the bill, as adjusted by those amendments, will provide an excellent system for resolving disputes that balances the interests of all concerned.
I remind the minister that I opened the debate on this group of amendments by saying that, if she made it clear that the Executive would accept the amendments in the name of Jackie Baillie, I would not press the amendments in my name. However, I want to comment generally on the debate, which has been one of the Parliament's better discussions on a crucial hinge in a piece of legislation.
When I lodged amendment 38, the bill included no mention of any kind of appeal. Jim Wallace then lodged a catch-all amendment—amendment 237—which he has said he will now not press. Collectively, members have come to the view that the amendments in the name of Jackie Baillie will preserve the aims of the bill while delivering a form of justice that the bill would have denied, as Kenny MacAskill rightly said, to one particular group of people. I note that similar appeal systems exist for other professions. We cannot deny lawyers a right to challenge decisions, but that right must be qualified and there must be a good reason for making a challenge.
I welcome the fact that John Swinney, who has been a good attender at the committee, has taken a passionate interest in these issues. The committee has welcomed the fact that he has come along to give his points of view on behalf of individuals and the cases in which they have been involved.
I remind members that the right of appeal will mean that the commission, not the complainer, will need to defend decisions in court. The appeal provision will not result in small people being exposed in a big court where they will have to fight their case; the appeal will be about the commission's decisions. On that basis, I will not press amendment 38.
Amendment 38, by agreement, withdrawn.
Amendment 2 moved—[Jackie Baillie]—and agreed to.
Section 13—Power to examine documents and demand explanations in connection with conduct or services complaints
Group 11 is on the duty to comply with the requirement to provide information. Amendment 39, in the name of David Davidson, is grouped with amendments 40, 71 and 80.
Amendments 39, 40, 71 and 80 seek to provide clarity on the new duty by removing any liability that might result under the confidentiality rules. The amendments are required as a result of the poor drafting of the bill. If the amendments are not accepted, an order will be required to remedy the matter if the requirement to provide documents flies in the face of the rules that the professional bodies have on confidentiality. All the amendments in the group are about that issue.
I move amendment 39.
The effect of amendments 39, 40, 71 and 80 would be radically to change the carefully structured provisions of the bill in terms of which the commission and the professional bodies can obtain documents and evidence.
At present, the bill provides that such bodies can require production of documents and other evidence. If the person who is put under such a requirement resists on the grounds of confidentiality or legal privilege, it will be necessary for the commission or professional bodies to go to court to seek an order. A court will not grant an order that breaches legal privilege and, in the public interest, it will try where possible to preserve other obligations of confidentiality.
The amendments would mean that all persons who were served with a requirement to provide documents would be put under an immediate statutory duty to comply with the requirement. That would result in a complete override of legal privilege and confidentiality. However, legal privilege is an automatic right that not even the courts can overrule without explicit authority.
At stage 2, we amended schedule 3 to the bill to require the commission to make provision in its rules to prevent investigation of a complaint unless the complainer has waived any relevant rights of confidentiality. Accordingly, the whole framework of legal privilege is protected and respected in the bill. Even the complainer's rights are preserved unless he expressly waives them.
The bill should enable the commission and professional bodies to obtain most of the documents that they need without making inroads into rights of confidentiality or legal professional privilege, which are considered by the Executive to be of fundamental importance. Both the commission and the professional bodies will need to go to court if persons do not hand over documents or evidence that is required from them. In such cases, the legal machinery in schedule 2, which is based on provisions in the Solicitors (Scotland) Act 1980, would apply. In other words, the bill preserves the status quo on legal privilege and it adopts a procedure for going to court that is well tried and which works.
The amendments would radically alter the status quo in the wrong direction and against the public interest. On that basis, and in the interest of protecting client confidentiality, I oppose all the amendments in the group.
I am not totally convinced that the minister has responded fully to the issues that I raised. Did she say that, in some situations, there will be ways to get round the confidentiality rules that apply to legal professionals without altering the status quo? I am not convinced by her argument. It is possible that I misheard what she said, but I do not think she said that it will be all right to change the rules on confidentiality.
Unless the minister gives me the impression that I have missed something, I am afraid that I will be forced to press the amendment.
The question is, that amendment 39 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (Sol)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 34, Against 71, Abstentions 0.
Amendment 39 disagreed to.
Section 13B—Documents and information from third parties
Amendment 40 moved—[Mr David Davidson].
The question is, that amendment 40 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (Sol)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 34, Against 69, Abstentions 0.
Amendment 40 disagreed to.
After section 14
Amendment 3 moved—[Jackie Baillie].
Amendment 3A not moved.
Amendment 3D moved—[Mr Jim Wallace]—and agreed to.
Amendments 3B and 3C not moved.
Amendments 3E and 3F moved—[Mr Jim Wallace]—and agreed to.
Amendment 3, as amended, agreed to.
Amendment 4 moved—[Jackie Baillie].
Amendment 4A moved—[Mr Jim Wallace]—and agreed to.
Amendment 4, as amended, agreed to.
Amendment 237 not moved.
Section 15—Handling by relevant professional organisations of conduct complaints: investigation by Commission
The amendments in group 12 relate to the handling of complaints: notice and time for making a complaint. Amendment 41, in the name of David Davidson, is grouped with amendments 42 to 45 and 47.
Amendment 41 seeks to provide clarity on the compliance of a practitioner. Amendment 42 allows the professional organisations to set the date for the clock to run; when they issue the document, the time starts to run. That should simplify things. Amendment 43 is consequential on amendment 41, and amendment 44 is consequential on amendment 42. Amendments 45 and 47 are consequential on amendments 41 and 43. The purpose of the amendments is to keep the practitioner informed.
I move amendment 41.
I see no reason why the commission and professional organisations should not be required to send copies of notices and reports relating to the handling of complaints to the individual practitioner concerned. I am therefore content to accept amendments 41, 43, 45 and 47.
Amendments 42 and 44 would require the commission not to investigate a handling complaint whenever it was made more than six months from the date on which the professional organisation sent its determination to the complainer. We believe that that would be too rigid. It does not take account of the technical reasons for the existing order-making power in the bill. The reason for taking the power is that different dates are required for different purposes. For example, in relation to unsatisfactory professional conduct, it would be the date on which the Law Society of Scotland made a determination; but in relation to professional misconduct, it would be the date on which the society decided to prosecute before the tribunal.
The appropriate dates in relation to conduct complaints that are dealt with by each of the other professional bodies will also be covered in the order. I therefore ask David Davidson not to move amendments 42 and 44.
I thank the minister for accepting amendments 41, 43, 45 and 47, and I understand her concerns over amendments 42 and 44.
Amendment 41 agreed to.
Amendment 42 not moved.
Amendment 43 moved—[Mr David Davidson]—and agreed to.
Amendment 44 not moved.
Amendment 45 moved—[Mr David Davidson]—and agreed to.
Section 16—Investigation under section 15: final report and recommendations
Group 13 is on handling complaints: recommendations and duty to comply. Amendment 46, in the name of David Davidson, is grouped with amendments 48 to 50 and 52.
Amendment 46 relates to the fact that the commission should deal with merely service complaints.
As the bill stands, it places no obligation on the professional organisations, which is neither correct nor appropriate. Amendment 48 covers that.
I will not press amendments 49 and 52, because the minister's amendment 50 provides for the same thing.
I move amendment 46.
Amendment 46 would remove the commission's power to recommend that the professional body investigate further or reconsider a conduct complaint. The Law Society of Scotland believes that the power will trespass too far into the remit of the professional bodies. However, the power has the potential to be important in cases in which the complainer legitimately feels that his or her version of events has not been taken seriously or properly investigated. I will not support amendment 46, and I invite David Davidson to withdraw it.
In other ways, once again consensus seems to be breaking out. David Davidson managed to lodge his amendments 48, 49 and 52 before identical ones from the Executive were lodged. We support those amendments, which should ensure effective compliance with commission directions by the professional bodies. The purpose of amendments 49 and 52 and Executive amendment 50 is to achieve that while avoiding an immediate resort to the concept of contempt of court. The amendments will permit the commission to petition the Court of Session when there is non-compliance with a direction. The court will then be able to order the professional organisation to comply with the recommendation contained in the direction. Of course, breach of the Court of Session's order could itself trigger contempt of court, but that is the case with most court orders of this type, so there is no need to specify as much in the bill. However, I am confident that professional bodies will obey any orders of the court. Amendments 49, 52 and 50 should achieve compliance with commission directions by less coercive means.
It is a matter of principle, with regard to the history and development of professions in the United Kingdom and in other parts of the world, that professional bodies deal with certain matters relating to their members. The commission is not the appropriate place to deal with complaints other than service complaints. On matters of discipline, the professions are famously firm on their members. Amendment 46 would ensure clarity. I do not want a brand new organisation to be put into a situation in which it does not have the experience to deliver what I think the minister wants it to deliver. I will press amendment 46.
The question is, that amendment 46 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (Sol)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 16, Against 85, Abstentions 0.
Amendment 46 disagreed to.
Amendment 47 moved—[Mr David Davidson].
The question is, that amendment 47 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Petrie, Dave (Highlands and Islands) (Con)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Sheridan, Tommy (Glasgow) (Sol)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
The result of the division is: For 81, Against 20, Abstentions 0.
Amendment 47 agreed to.
Amendment 48 moved—[Mr David Davidson].
The question is, that amendment 48 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Petrie, Dave (Highlands and Islands) (Con)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Sheridan, Tommy (Glasgow) (Sol)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
The result of the division is: For 79, Against 22, Abstentions 0.
Amendment 48 agreed to.
Section 16A—Failure to comply with recommendation
Amendment 49 moved—[Nora Radcliffe]—and agreed to.
Amendment 50 moved—[Johann Lamont]—and agreed to.
Amendment 52 moved—[Mr David Davidson]—and agreed to.
Section 17—Abolition of Scottish legal services ombudsman
Group 14 is on the abolition of the Scottish legal services ombudsman. Amendment 53, in the name of the minister, is grouped with amendments 54, 55, 226 and 227.
Amendments 53 to 55 are technical amendments to section 17, which provides for the abolition of the Scottish legal services ombudsman. Under the bill, the bulk of the ombudsman's current functions will transfer to the Scottish legal complaints commission, but for certain of the ombudsman's functions, relating to the ombudsman's powers to investigate complaints in reserved areas, that will not be the case, because regulation of the legal profession in certain sectors is dealt with in acts of the United Kingdom Parliament, the subject matter of which is reserved. Examples are the Consumer Credit Act 1974 and the Financial Services and Markets Act 2000. It is not within the legislative competence of the bill to transfer the ombudsman's functions in those areas to the new commission. That will be achieved by Scottish clauses in the UK Legal Services Bill, which was recently introduced at Westminster.
Amendment 54 provides that, on commencement of section 17, all the ombudsman's functions cease to be exercisable, other than those functions in the reserved areas that are specified in section 47(2). It also removes the current section 17(3), which enables ministers to modify functions of the ombudsman by order in preparation for abolition. We no longer think that that is necessary. The ombudsman's functions will simply cease to be exercisable under section 17 or the relevant provisions of the UK Legal Services Bill.
Amendment 53 provides that the ombudsman is not to be abolished until she no longer has any exercisable functions. Amendment 55 deletes sections 17(4) and 17(5), which enable ministers to make incidental, consequential, transitional and saving provisions in relation to modification of the ombudsman's functions and abolition of the ombudsman. Again, we no longer think that those powers are needed. The ombudsman's functions will simply cease to be exercisable on commencement of the relevant provisions.
Amendment 226 removes the requirement for the order abolishing the office of the ombudsman to be subject to any parliamentary procedure. As amendment 53 specifies that the office will be abolished only once commencement of the relevant provisions of this bill and the UK bill have stripped it of all its functions, abolition will be entirely consequential on the effects of primary legislation and should not require to be subject to any parliamentary procedure. The order-making powers conferred by the current text of sections 17(1), 17(3) and 17(4) are included in the list of powers subject to the affirmative procedure. Amendment 227 removes them from that list. The existing order-making powers in sections 17(3) and 17(4) are being removed by amendments 54 and 55, and, as I have already explained, it is no longer appropriate for the power contained in section 17(1) to be subject to any parliamentary procedure.
I move amendment 53.
Amendment 53 agreed to.
Amendments 54 and 55 moved—[Johann Lamont]—and agreed to.
Section 18—Annual general levy
Group 15 is on levies and the charging of interest on, and the recovery of, sums due. Amendment 56, in the name of Stewart Maxwell, is grouped with amendments 57 to 63, 196 and 197. I draw members' attention to the fact that there are three pre-emptions in the group.
Amendments 56 and 61 are fairly straightforward. Their purpose is to address an inconsistency in the bill dealing with the annual general levy and the complaints levy. Sections 18(3)(b) and 18(4)(b) refer to
"interest due on any such sum at such rate (if any) as may be specified".
In other words, there is a possibility that interest may be charged, but it may not be charged if an annual general levy is late in being paid. However, in section 19(3)(b), which deals with the complaints levy, the words "if any" do not appear, so if a complaints levy is late in being paid, interest would be due. The inconsistency between the two sections does not make sense. I hope that the Executive will support amendments 56 and 61, to remove "(if any)" from sections 18(3)(b) and 18(4)(b), so that there is consistency between the two levies.
I thank the minister for amendments 196 and 197, which amend schedule 3 and are effectively consequential on amendments 56 and 61. The Scottish National Party will support amendments 196 and 197. However, on the pre-empted amendments, we prefer the minister's amendments, which remove the word "civil".
I move amendment 56.
I note Stewart Maxwell's comments. In a consensual manner, we are all trying to make this a better bill. With regard to amendments 57, 59 and 62, the minister has delivered what I was seeking to deliver. I thank her for doing so and I welcome her move. On that basis, I will not move amendments 57, 59 and 62.
I support amendments 56 and 61, in the name of Stewart Maxwell. On reflection, we agree that, in practice, ministers will always want to specify a rate of interest that applies both to the annual general levy and the complaints levy in the event of late payment or non-payment. The use of wording that permits ministers to decide not to set a rate is unnecessary. Amendments 196 and 197 remove two further uses of "(if any)" in schedule 3. In the situations to which they refer, a rate of interest will always be specified, so those references are redundant.
Amendments 57 to 60, 62 and 63 are all intended to achieve the same purpose. On reflection, it is not necessary to refer to a debt as a civil debt, therefore the amendments seek to remove references to civil debts where they occur. However, amendments 58, 60 and 63 still specify that unpaid sums due to the commission by the professional organisations, such as annual general levies, complaints levies and interest, are recoverable as debts. That usefully specifies that a court action to recover any of those sums will be a debt action.
I welcome David Davidson's indication that he does not intend to move his amendments 57, 59 and 62.
Amendment 56 agreed to.
Amendment 57 not moved.
Amendment 58 moved—[Johann Lamont]—and agreed to.
Amendment 59 not moved.
Amendment 60 moved—[Johann Lamont]—and agreed to.
Amendment 61 moved—[Stewart Maxwell]—and agreed to.
Section 19—Complaints levy
Amendment 62 not moved.
Amendment 63 moved—[Johann Lamont]—and agreed to.
Section 20—Amount of levies and consultation
Group 16 is on consultation on the commission's budget. Amendment 64, in the name of David Davidson, is grouped with amendment 65.
Amendment 64 simply aims to make the bill consistent with the year end of the Law Society of Scotland, which would save a lot of work and additional burdens. Since the commission will be a new organisation, I am sure that that change could be accepted by the minister.
I move amendment 64.
I support amendment 65, which concerns a matter on which I focused at stage 2 and which has been a principal area of concern to some solicitors, who perceive a lack of transparency in setting the commission's budget and the levies. The two are inextricably linked, of course.
The commission's financial accountability and the consultation required to determine its budget were improved at stage 2 and are now being further improved at stage 3. At stage 2, the Executive accepted the principle of my amendment 289, on consultation. That principle is now endorsed and developed by amendment 65 in a better form than my amendment 289. It not only improves considerably on my efforts at stage 2, but it goes a considerable way to ensuring that solicitors have a commission that can set its budget—and the levies as part of that budget—openly, transparently and accountably.
I reiterate the Executive's commitment to ensuring that the commission's annual budgetary consultation is transparent. However, the timescale in amendment 64, in the name of David Davidson, is unnecessary for the annual consultation that the bill requires on the commission's proposed work plan and budget for the following financial year. The period from January to April is sufficient time for the commission to consult on its proposed budget and lay its finalised budget before the Parliament. For that reason, I do not support amendment 64 and I ask David Davidson to withdraw it.
As has already been indicated, amendment 65 builds on an amendment that was lodged by Jeremy Purvis at stage 2. Members of the Justice 2 Committee will recall that my predecessor undertook to lodge an Executive amendment along similar lines at stage 3. Amendment 65 requires the commission to publish by 31 March each year the responses that it receives to its annual consultation and proposed budget. However, in line with the Executive's current practice, the duty to publish will not apply if the consultee requests confidentiality.
I am not sure that the minister appreciates that she is asking the Law Society to be involved in an audit and accountability process when it is only halfway through its financial year. As the bill is about involving the legal professionals who will pay the running costs of the commission once it is set up, it would be helpful if the minister acted consensually and gave way a little bit on the issue.
Given that the requirement is for the commission to consult the Law Society, not that the two bodies' budgets must be consistent, I am curious as to why the commission's consultation should be consistent with the Law Society's financial year. Consultation should place no additional burden on the Law Society.
I am told that it will place a burden on the Law Society's staffing levels, which will further increase the cost. As I said, the commission will be funded by practising lawyers who pay their dues. Amendment 64 is a small change to ask for at this time.
The question is, that amendment 64 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Cunningham, Roseanna (Perth) (SNP)
Curran, Frances (West of Scotland) (SSP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (Sol)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 34, Against 73, Abstentions 0.
Amendment 64 disagreed to.
Amendment 65 moved—[Johann Lamont]—and agreed to.
I suspend consideration of amendments.