Legal Profession and Legal Aid (Scotland) Bill: Stage 3
Resumed debate.
Section 23—Duty of Commission to make rules as to practice and procedure
Group 17 is about publication of and consultation on rules as to the commission's practice and procedure. Amendment 66, in the name of David Davidson, is grouped with amendments 67 to 70.
Amendments 66 and 67 enhance accountability and transparency, which is essential in a process as technical as the workings of the Scottish Legal Complaints Commission. Amendments 68 and 70 ensure that the rules for the levies are published, so that no one is under any illusions about what may or may not happen and there is absolute clarity in the bill. I believe that the amendments will enhance the bill.
I turn to amendment 69, in the name of the minister. I very much welcome the involvement of the Lord President in the making of rules. The previous Deputy Minister for Justice will remember that my colleague Bill Aitken introduced the subject at stage 2. We believe that the system should not be run by ministers and that it should be possible to get the best advice on the setting of rules. We welcome amendment 69 and will support it.
I move amendment 66.
We continue this afternoon as we started this morning.
Amendment 69 adds the Lord President to the list of those whom the commission is required to consult before making or varying its rules of procedure. That should help to provide further reassurance that the rules will be fair and will further reinforce the reality that the full commission and its determination committees will act as an independent and impartial tribunal when ruling on the merits of complaints. I welcome the support that has been given to the amendment.
I support the other amendments in the group. Amendments 66 and 67 would place a slightly more stringent duty on the commission in relation to the publication of its rules and any changes to them. Instead of being required to publish the rules from time to time, the commission will be required to publish them as soon as is reasonably practicable and to make them available to the public in a readily accessible form. We accept that that will promote transparency.
Amendments 68 and 70 would remove the current exemption to the duty on the commission to consult before making or varying its rules, where those relate to the annual levy and complaints levy. Originally we thought that the commission's duty to consult the profession each year on the size of the levies under section 20 afforded sufficient protection, but we have no objection to a wider duty to consult.
I thank the minister for understanding what we are seeking to do to improve the bill. I very much welcome her support in these matters.
Amendment 66 agreed to.
Amendments 67 and 68 moved—[Mr David Davidson]—and agreed to.
Amendment 69 moved—[Johann Lamont]—and agreed to.
Amendment 70 moved—[Mr David Davidson]—and agreed to.
After section 27
Group 18 is on a report to Scottish ministers on conduct complaints. Amendment 5, in the name of John Swinney, is grouped with amendment 7.
One of the matters discussed at length during consideration of the bill at stages 1 and 2 was whether complaints about services and conduct should be handled by the same body or different bodies. The Government proposes that service complaints should be handled by the Scottish legal services commission and that conduct complaints should be handled by the relevant professional organisations.
I moved a series of amendments at stage 2 to try to ensure that all complaints, whether they were about service or conduct, were handled by the Scottish legal complaints commission because I believed that that would fulfil the Government's commitment to an open and transparent process that would build public confidence. Those amendments were not successful at stage 2.
I have proposed in amendments 5 and 7 that the effectiveness, workability and performance of the separation of service and conduct complaints be reviewed after two years and subject to a report by the commission to ministers. There are two elements to the argument for doing that. The first is that however hard ministers try to make the distinction between service and conduct complaints, it is not quite as neat as everybody thinks. I was struck by some of the evidence that we heard in committee that members of the public invariably find that their complaints start off as service complaints and end up as conduct complaints. If that is the pattern, we would find that different bodies would be looking at different elements of one complaint. That would disrupt the comprehensive assessment of complaints that members of the public want.
Also in evidence to the committee, the former Scottish legal services ombudsman, Mrs Costelloe Baker, said that in her opinion—based on her experience of dealing with such cases—the split between service and conduct complaints confused members of the public. Therefore, it would be beneficial to look at complaints in their totality to achieve an integrated approach.
The second element of the argument is about the performance of the professional organisations in dealing with complaints. Only recently, the Law Society of Scotland had to wipe clean the disciplinary records of about 250 solicitors whom it had reprimanded because the Law Society's actions were deemed to be illegal. The charge that was levelled at over 250 solicitors was one of unsatisfactory conduct. The Law Society has been down the route of trying to exercise disciplinary action and has got itself into a fix. On 13 November, the new Scottish legal services ombudsman, Jane Irvine, published official notices about cases in which the Law Society of Scotland refused to comply with her recommendations on the handling of complaints. I cite those two examples to demonstrate that the professional organisations do not always handle conduct complaints in the most effective fashion.
Instead of going back to the proposals that I made in my stage 2 amendments, which were not supported by the committee, I now seek to insert into the bill a provision similar to the one that Parliament agreed just the other week in the Bankruptcy and Diligence etc (Scotland) Bill. Gordon Jackson's amendment, which was accepted by ministers, proposed a two-year review period to look at the performance of particular elements of that bill. The provisions that I propose in amendments 5 and 7 would require the commission to report to ministers two years after the date on which the act will come into force to assess whether the separation between conduct and service complaints has worked effectively or whether the arrangement needs to be revisited.
The arrangement is worthy of further examination. Based on the Executive's past practice, I look forward to a warm response to my proposals.
I move amendment 5.
I am afraid that I cannot support John Swinney's amendment 5, for the simple reason that what he proposes involves a conflict of interests. If he is so keen that the Executive should have a report laid before it about the performance of the commission, it should not be for the commission to produce the report; that should be done independently. I thought that we had all been arguing about independence of action and scrutiny throughout our consideration of the bill to date, and I find it strange, given his concerns about organisations doing things on their own behalf, that he would want to give the commission the power to audit its own performance and to make a report to ministers.
I am not minded to support amendment 7, because I am informed that it is not needed, as the powers, apparently, already exist. Perhaps Mr Swinney could clarify that when he winds up.
Mr Swinney raises an important issue that is at the centre of the bill. The Justice 2 Committee spent a lot of its time considering conduct complaints, and its report highlighted the fact that the Executive's initial consultation showed that the public's overwhelming preference was for all complaints to be considered by a wholly independent complaints commission, which is what we are discussing now.
The separation between conduct complaints on the one hand and service complaints on the other reflects the current Law Society-designated categories. We heard a great deal of evidence from the Law Society, the Faculty of Advocates and others suggesting that the distinction between what is a service complaint and what is a conduct complaint is often not at all clear. I readily admit that there are different ways of handling the matter. The Faculty of Advocates more or less admitted that there was a big problem in making the distinction, but it boldly concluded that it was better to leave all complaints with the faculty—although I think that it is fair to say that the entire committee rejected that suggestion.
Like Mr Swinney, I accept that the Parliament has already considered the idea of the Scottish legal complaints commission dealing with all complaints, both service and conduct. The Parliament has made clear its view that it wants the two kinds of complaint to be handled separately, and I do not wish to reopen that argument at this stage. However, David Davidson says that he cannot support amendment 5 because he thinks that it might queer the pitch, so to speak, of the independence of the commission. I read amendment 5 as providing that a report can be written by the commission on those complaints that the commission itself will not be handling—the conduct complaints that will be handled by the Law Society.
Mr Swinney's amendments seek to ensure that the public's concerns that were raised in the initial consultations are assuaged. A review of and a report to Parliament on conduct complaints is indeed the way forward. I would be happy to support amendment 5.
Amendment 5 has some attraction, in so far as it would require the commission to review its operations after its first two years. We commend such reviews as good administrative practice and certainly expect the commission to hold a consultative review seeking the views of interested parties on issues arising from its first few years of operation. However, that is as far as we would go. The amendment reflects the unease that some feel about the split that the bill makes between conduct and service complaints and about the fact that responsibility for conduct complaints is to be retained by the professional organisations. As has already been said, those issues were debated by the Justice 2 Committee at stage 2 in the context of amendments lodged by John Swinney. There was also debate about where the split is and how difficult it can be to make that absolutely definitive, but the bill recognises that there is the capacity to shift from one to the other, and that is an acknowledgement that a complaint that starts off as one type may become another and might therefore have to be dealt with in that way.
In our view, it would not be right to add conduct complaints to the commission's remit. The purpose of the commission is to provide an informal and consumer-friendly process, to promote mediation and dispute resolution at source and to focus on redress for consumer complaints. In contrast, conduct allegations carry with them the risk of a range of disciplinary sanctions against the practitioner, up to and including loss of livelihood. Disciplinary hearings against practitioners that could trigger sanctions of such severity require different, more formal and adversarial procedures, and full rights of appeal. If, in the worst-case scenario that John Swinney describes, it was found that that split was not working, it would not be a given that the commission would take over that role. A different solution may be needed, and the presumption that it would fall to the commission is not right. The professional organisations and, where appropriate, the discipline tribunals are already skilled at performing that sort of role and should be left to continue to do so. Given that the regulatory bodies set the standards of conduct for members of the profession, those bodies are in the best position to assess shortcomings. For those reasons, we do not support amendment 5.
On amendment 7, we do not believe that it is appropriate to have a reserve power to remove, by means of regulations, responsibility for conduct complaints from the professional organisations.
Even by John Swinney's standards, his suggestion that our acceptance of one amendment to one bill constitutes past practice on the part of the Executive is a little elastic with the truth. In our view, an important principle of the bill is that service complaints should be dealt with by the commission and conduct complaints should be dealt with by the professional bodies. It is reasonable to argue that primary legislation would be the most appropriate way to make such a fundamental change, given that a range of options would need to be considered if, in the way that John Swinney fears, the approach in the bill had failed.
We do not support amendment 5 and we do not recognise the need for the reserve power in amendment 7, no matter how attractive John Swinney might have managed to make it appear by claiming precedent.
David Davidson seems to have fundamentally misunderstood or misread amendment 5. I am almost tempted to allow him to make a further speech in case he is more supportive the second time round.
No.
My colleagues are encouraging me not to be so generous, so I should perhaps withdraw that offer.
The purpose of amendment 5 is not to ensure that the commission reviews its own work, but to extend the provisions in section 27, which give the commission the power to monitor practice and to identify any trends in the way in which the relevant professional organisations handle conduct complaints. Amendment 5 seeks to take that provision a bit further by enabling the commission, if it thinks that relevant professional organisations are handling conduct complaints inadequately, to recommend to ministers that there should be a change to the system. I am sorry if Mr Davidson did not understand the purpose of the amendments, but I am glad that at least Mr Fox was able to follow them.
Despite what the minister said, amendments 5 and 7 are designed to give the commission an extra role in monitoring and reporting on the situation and in presenting evidence, information and recommendations to ministers. By virtue of amendment 7, ministers would still have the power to make a judgment on whether they wished to take any step that the commission proposed.
Having seen how enthusiastic the Government was to accept the mechanism that Gordon Jackson proposed for the Bankruptcy and Diligence etc (Scotland) Bill, I think that it was reasonable to assume that my amendments would provide an appropriate vehicle to ensure that the concerns of the public are adequately addressed. I hope that the arrangements under the bill are successful and I hope that they work effectively. I simply want to ensure that the bill includes a mechanism to allow those issues to be addressed in the longer term, after a couple of years have elapsed and once we have seen the performance of the relevant professional organisations.
The amendments would provide an important step that would maximise the consumer protection that will be available under the bill. On that basis, I will press amendment 5.
The question is, that amendment 5 be agreed to. Are we agreed?
No.
There will be a division. There will be a five-minute suspension to allow members to come into the chamber.
Meeting suspended.
On resuming—
We will proceed with the division on amendment 5, in the name of John Swinney.
For
Adam, Brian (Aberdeen North) (SNP)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Byrne, Ms Rosemary (South of Scotland) (Sol)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Martin, Campbell (West of Scotland) (Ind)
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)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sheridan, Tommy (Glasgow) (Sol)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
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)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
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)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
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)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (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)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
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)
Swinburne, John (Central Scotland) (SSCUP)
Tosh, Murray (West of Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Gillon, Karen (Clydesdale) (Lab)
The result of the division is: For 33, Against 71, Abstentions 1.
Amendment 5 disagreed to.
Section 28—Obtaining of information from relevant professional organisations
Amendment 71 moved—[David Davidson].
The question is, that amendment 71 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)
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)
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)
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)
Tosh, Murray (West of Scotland) (Con)
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)
Brown, Robert (Glasgow) (LD)
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)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (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)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
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)
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)
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)
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 37, Against 68, Abstentions 0.
Amendment 71 disagreed to.
Section 29—Monitoring effectiveness of guarantee funds etc.
Group 19 is on monitoring the effectiveness of professional indemnity arrangements. Amendment 6, in the name of John Swinney, is the only amendment in the group.
Amendment 6 is fairly straightforward and is designed to clarify the information that the commission will have access to in relation to the powers that are set out for it in section 29. The Government has brought forward a range of sensible proposals in section 29 for the commission to monitor the effectiveness of the Scottish solicitors guarantee fund, the professional indemnity arrangements and any funds or arrangements that are maintained by relevant professional organisations. However, it is unclear what the Executive means by "monitor the effectiveness of" and what information the commission may have access to to enable it to fulfil that purpose. Amendment 6 is designed to ensure that the commission is able to review the terms of any contracts or other documents that are associated with the professional indemnity arrangements.
The professional indemnity arrangements are commonly referred to as the master policy that provides security and insurance in relation to a variety of legal profession activities. The Law Society of Scotland has an obligation under the Solicitors (Scotland) Act 1980 to promote the interests of the public in relation to the profession. It is important that there is transparency about the documents that underpin that relationship. Amendment 6 is designed to clarify exactly what information the commission will have the power to access so that we can be satisfied that it can fully pursue the power that is allocated to it in section 29 to monitor the effectiveness of the professional indemnity arrangements and other matters.
I move amendment 6.
Mr Swinney comes from the insurance sector, and I would have thought that a contract between an individual party and an insurer comes under commercial confidentiality, but perhaps Mr Swinney can enlighten me when he sums up.
I appreciate that the aim of amendment 6 is to help the commission to fulfil its responsibility under section 29 to monitor the effectiveness of professional indemnity arrangements. Such arrangements are an important and integral part of the overall mechanisms for providing redress for clients who suffer as a result of poor service from a legal practitioner. However, our preference is to rely on the willingness of the professional bodies to co-operate with the commission when it seeks to carry out its duties under section 29. It will be very much in their interest to do so.
If the commission were to report a lack of co-operation on the part of the professional bodies, it would be open to the Scottish ministers to place before the Parliament regulations under section 31 to enhance the commission's monitoring powers. Such regulations could set out the procedures for the commission to follow in obtaining documentation and provide enforcement powers for that purpose. I note that amendment 6 does not deal with how confidential commercial documents would be treated.
We propose to see how well section 29 works in practice and to review its operation in the light of experience. As I indicated, section 31 will allow us to improve its operation if required. At this point, I do not support amendment 6, for the reasons that I have given.
If ever I heard an argument for saving parliamentary time, it is the minister's point that, at some point in the future, if the arrangements are not working properly, the Government will lay regulations. There will be a problem with the disclosure of information, and for the commission to be able to fulfil its function of monitoring the effectiveness of the arrangements specified in section 29, it is essential that it has access to the quality of information that will enable it to make its judgments.
The Parliament regularly debates a number of questions about the ability of individuals and organisations to access information to satisfy themselves that issues are being dealt with properly. We can all think of examples. We should not wait until there is a problem; we should ensure that the commission is given full and effective powers to fulfil the responsibilities that the Parliament allocates to it under section 29. That is a key requirement.
Mr Davidson asked about commercially confidential information. I am concerned to ensure that the excuse of commercial confidentiality is not used to avoid proper scrutiny. What is the point of the Parliament passing a bill that gives the commission the power to monitor the effectiveness of arrangements without giving it the tools to enable it to do so? Amendment 6 is a necessary addition to the bill and would ensure that we pass a workable, robust and reliable bill that enables the commission to do its job properly.
I press amendment 6.
The question is, that amendment 6 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Martin, Campbell (West of Scotland) (Ind)
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)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sheridan, Tommy (Glasgow) (Sol)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
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)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
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)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
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)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (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)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Tosh, Murray (West of Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 30, Against 71, Abstentions 0.
Amendment 6 disagreed to.
Section 31—Power by regulations to amend duties and powers of Commission
Amendment 7 not moved.
Section 32A—Restriction upon disclosure of information: Commission
Group 20 is on restrictions on the disclosure of information. Amendment 72, in the name of the minister, is grouped with amendments 73, 75, 74 and 81 to 84.
Amendments 72 and 73 pave the way for the creation of a new criminal offence of wrongful disclosure of commission information by extending the prohibition on disclosure that is already contained in section 32A to information that is given to or obtained by the commission or anyone acting on its behalf. Amendments 81 and 82 perform the same function in relation to information held by the professional organisations.
Amendment 75 creates a criminal offence of knowingly disclosing information obtained when employed by or acting on behalf of the commission. The penalty on summary conviction will be a fine not exceeding level 4 on the standard scale. Amendment 83 applies an equivalent offence in relation to the professional organisations and those acting on their behalf.
Amendments 74 and 84 would create similar offences, but there are a number of differences. First, the level of fine is not the same. Not a great deal turns on setting the fine at level 4 as opposed to level 5. We consider that conviction and a level 4 fine are sufficient deterrents.
Significantly, the Executive amendments apply only to information that is knowingly disclosed, therefore they provide an important defence of inadvertent disclosure, which David Davidson's amendments 74 and 84 do not provide. That should save the unfortunate employee who accidentally presses the wrong key on the computer and sends an e-mail to an unintended recipient or who leaves their briefcase on the train. Although such carelessness should be deplored, we should not criminalise otherwise law-abiding people for it.
The Executive amendments will also apply the criminal sanction whenever the information is obtained by someone who was employed by or acting on behalf of the commission or the professional organisation at the time. David Davidson's amendments 74 and 84 would not cover disclosure by people such as former employees, who would escape any penalty, therefore I do not support David Davidson's amendments.
I move amendment 72.
I accept some of what the minister says. I will not move amendments 74 and 84, as I am convinced by her arguments on them. However, I feel that amendment 72 is not supportable on the basis that it limits the legitimate need to disclose in court information that is required to assist a case by a complainer. Amendment 81 is wide and loose, and prevents fair presentation of required evidence. However, we are happy to support the minister's amendments 82 and 83.
Minister, is there anything that you wish to add?
I have nothing further to say.
The question is, that amendment 72 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
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)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
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)
Cunningham, Roseanna (Perth) (SNP)
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)
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, 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)
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, Campbell (West of Scotland) (Ind)
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)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
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)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (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)
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)
Watt, Ms Maureen (North East Scotland) (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)
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)
Milne, Mrs Nanette (North East Scotland) (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 86, Against 14, Abstentions 0.
Amendment 72 agreed to.
Amendments 73 and 75 moved—[Johann Lamont]—and agreed to.
Amendment 74 not moved.
Section 33—Giving of notices etc under Part 1
Amendment 76 moved—[Johann Lamont]—and agreed to.
Amendment 77 moved—[Mr David Davidson]—and agreed to.
Section 35—Conduct complaints: duty of relevant professional organisations to investigate etc
Amendment 79 moved—[Johann Lamont]—and agreed to.
Section 35A—Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations
Amendment 80 moved—[Mr David Davidson].
The question is, that amendment 80 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)
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)
Martin, Campbell (West of Scotland) (Ind)
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)
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)
Tosh, Murray (West of Scotland) (Con)
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)
Brown, Robert (Glasgow) (LD)
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, 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)
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)
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)
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)
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)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 36, Against 67, Abstentions 0.
Amendment 80 disagreed to.
Section 35E—Restriction upon disclosure of information: relevant professional organisations
Amendments 81 to 83 moved—[Johann Lamont]—and agreed to.
Amendment 84 not moved.
Section 36—Unsatisfactory professional conduct: solicitors
Group 21 is on remission of complaint from tribunal to council. Amendment 85, in the name of the minister, is grouped with amendments 86, 91, 94 to 96, 112 to 114, 118, 120, 121, 200 and 201.
The amendments deal with an issue that was raised at stage 2 concerning what would happen if a practitioner was prosecuted before the Scottish Solicitors Discipline Tribunal for professional misconduct and the tribunal did not establish professional misconduct but thought that the case might amount to unsatisfactory professional conduct. Under the bill, prosecutions for professional misconduct will continue to take place before the tribunal, while the new and lesser category of unsatisfactory professional conduct will be dealt with by the council of the Law Society of Scotland.
We consider that this is a genuine issue, and that there should be a formal mechanism for ensuring that the case is properly investigated as one involving unsatisfactory professional conduct allegations. Amendments 96 and 112 therefore require the tribunal to remit the complaint to the council in such a situation. Amendment 96 deals with cases involving solicitors and inserts new section 53ZZA into the Solicitors (Scotland) Act 1980. Amendment 112 provides an equivalent for conveyancing and executry practitioners, and inserts new section 20ZZA into the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which is the governing statute for those practitioners. Both amendments permit the tribunal to make any of its own findings in fact available to the council, to avoid duplication of investigations.
Amendments 85 and 113 deal with what the council is to do on receiving such a remitted complaint. The details are contained in new sections 42ZA(1A) of the 1980 act and 20ZA(1A) of the 1990 act. The council is to notify the practitioner and complainer that the case has been remitted and that it is now bound to investigate the case as a complaint of unsatisfactory professional conduct. The council is to proceed to investigate and determine the case, but not before allowing the practitioner complained against the opportunity to make representations, and may rely on any findings of fact made available by the tribunal.
Amendments 86, 91, 94, 95, 114, 118, 120 and 121 insert, where appropriate, references in sections 36 and 37 to the new subsections introduced by amendments 85 and 113.
Amendments 200 and 201 are technical amendments that insert appropriate references to new sections 42ZA(1A) of the 1980 act and 20ZA(1A) of the 1990 act into paragraph 1(2)(a)(ii)(ab)(i) of schedule 4, as inserted by amendments 85 and 113 respectively.
I move amendment 85.
Amendment 85 agreed to.
Amendment 86 moved—[Johann Lamont]—and agreed to.
Group 22 is on powers of council, tribunal and court where unsatisfactory professional conduct or professional misconduct is found. Amendment 88, in the name of David Davidson, is grouped with amendments 89, 90, 97 to 102, 104 to 109, 111, 115 to 117, 122 to 124, 126 to 132, 134, 139 to 141 and 146.
I will rattle through the amendments fairly quickly. Amendment 88 is about consistency and would allow the Law Society of Scotland to take into account a decision of the Scottish Solicitors Discipline Tribunal when disciplining a practitioner. Amendment 89 is consequential. Amendment 90 would allow the council of the Law Society of Scotland to take into account other decisions when making awards under section 8. Amendment 99 would empower the tribunal to fine when dealing with appeals.
Amendment 100 would provide consistency with section 8 and amendment 90. Amendments 101 and 103 are consequential on amendment 100. Amendment 104 would clarify the powers of the court under proposed new section 54A of the Solicitors (Scotland) Act 1980 and would ensure that those powers were exercisable only under appeal. Amendment 105 is related to amendment 107. Amendment 106, in the name of the minister, is consistent with amendment 98.
Amendment 107 would remove the double jeopardy element, because it is an important part of justice that a person should not be punished twice for something. Amendment 108 would reinforce enforcement. Amendment 109 would add clarity. Amendment 111 would provide consistency with amendments 100 and 90. Amendment 115 would provide consistency with regard to conveyancing or executry practitioners, by providing that decisions of the Scottish Solicitors Discipline Tribunal and the court could be taken into account. Amendments 117, 124 and 126 would provide consistency with section 8. Amendment 127 is consequential on amendment 130. Amendments 129 to 132 and 134 would provide more consistency. Amendment 139 would change wording. Amendments 141 and 146 would provide consistency.
I am content with the amendments in the group that are in the minister's name.
I move amendment 88.
For clarity, I indicate that as well as asking members to support the Executive amendments, we ask members to support non-Executive amendments 88, 89, 115 and 116 and to reject the other non-Executive amendments. I will explain why.
Amendments 97 and 122 confer on the Scottish Solicitors Discipline Tribunal the power, when an appeal is made to it on a complaint of unsatisfactory conduct, to direct that the solicitor or conveyancing or executry practitioner concerned
"undertake such education or training as regards the law or legal practice"
as the tribunal considers appropriate. In the case of a conveyancing or executry practitioner, the direction would be limited to education or training on conveyancing or executry law and practice. Following consultation, the tribunal thought that the additional powers would be helpful.
Amendments 98, 106, 123, 128 and 140 insert maximum levels of fine into various provisions, where it is reasonable to do so. The approach is in line with that of existing provisions in the bill, the Solicitors (Scotland) Act 1980 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, whereby the maximum fine payable is £2,000 in a case of unsatisfactory professional conduct and £10,000 in a case of professional misconduct.
I support amendments 88, 89, 115 and 116. Amendments 88 and 115 would allow the council of the Law Society of Scotland, in considering an unsatisfactory professional conduct complaint against a solicitor or conveyancing or executry practitioner, to take into account a previous determination of unsatisfactory professional conduct made against the practitioner by the Scottish Solicitors Discipline Tribunal or the court. In the bill as it stands, power is given to the council to take into account its previous determinations. Amendments 89 and 116 would additionally allow previous findings of professional misconduct against a practitioner to be taken into account. The amendments are reasonable and would permit the practitioner's disciplinary history to be more fully considered.
Amendments 90, 100, 111, 117, 124, 129, 130, 141 and 146 are not necessary. There is nothing to prevent the various bodies involved from taking into account all relevant factors in making decisions about compensation and there is no reason to think that those bodies would not do so. An obligation to take previous awards of compensation into account, regardless of the basis on which a previous award had been made, might also unduly restrict judicial discretion. I therefore invite David Davidson not to move those amendments.
I also invite David Davidson not to move amendments 99, 101 and 102. The appeals with which those amendments are concerned are complainer appeals against a decision by the council of the Law Society not to uphold a conduct complaint. The complainer has been given new appeal rights purely so that he or she can have the issue of compensation adjudicated at a higher level. The complainer's interest is in ensuring that an award of compensation is made against the solicitor where appropriate. That is why there is currently no power for the tribunal to fine the solicitor on such an appeal. In addition, no amendments have been proposed to make equivalent provision in relation to conveyancing and executry practitioners.
I do not believe that amendments 104, 109, 126, 132 and 139 are necessary. Clearly, on an appeal, the court has to decide whether the appeal succeeds or fails. That does not need to be spelled out. What is important is what the court has the power to do on a successful appeal. The bill already lists the powers of the court in that respect.
I understand Mr Davidson's motivation in lodging amendments 105, 107, 108, 127, 130 and 131. It looks as if there are gaps in the bill as drafted, but the omission of the matters with which those amendments deal was not an oversight. The 1980 and 1990 acts impose corresponding conditions on the powers of the council of the Law Society and the Scottish Solicitors Discipline Tribunal to fine for professional misconduct. However, those acts do not apply those same conditions to fines that are imposed by the court on appeal. We thought it important that the new powers that are being introduced in relation to unsatisfactory professional conduct complaints were consistent with the existing framework. We did not want to interfere with the inherent powers and practices of the court, or cast doubt on the way in which those acts have operated to date in professional misconduct cases.
I listened with interest to what the minister had to say. I am minded to take her advice not to meddle with the courts. As she knows, we on the Conservative benches like to see the courts acting independently, without ministerial intervention. On that basis, I will move or not move my amendments in the group as appropriate. I press amendment 88.
Amendment 88 agreed to.
Amendment 89 moved—[Mr David Davidson]—and agreed to.
Amendment 90 not moved.
Amendments 91 and 92 moved—[Johann Lamont]—and agreed to.
Amendment 93 not moved.
Amendments 94 to 98 moved—[Johann Lamont]—and agreed to.
Amendments 99 to 102 not moved.
Group 23 is on the enforcement of directions and the ability to amend the powers of the tribunal, court etc. Amendment 103, in the name of the minister, is grouped with amendments 110, 125, 133, 135 to 138, 142 to 145, 147 to 151, 215 to 218 and 223.
Amendment 103 introduces new subsections (6A) to (6C) into new section 53ZA of the Solicitors (Scotland) Act 1980.
Subsection (6A) provides that any direction of the Scottish Solicitors Discipline Tribunal on an appeal relating to an unsatisfactory professional conduct complaint against a solicitor is enforceable in the same way as an extract registered sheriff court decree. It ensures effective enforceability of such directions.
Subsections (6B) and (6C) enable the maximum amount the tribunal may fine a solicitor or award as compensation on such an appeal to be varied by order. The maximum fine is to be variable by negative resolution procedure in line with changes in the value of money. The maximum amount of compensation is to be variable by affirmative resolution procedure after consultation with the council of the Law Society and such consumer groups as ministers consider appropriate. The powers of variation are in line with those elsewhere in the bill.
Amendment 125 provides an exact equivalent of amendment 103 as regards appeals to the Scottish Solicitors Discipline Tribunal following unsatisfactory professional conduct complaints against conveyancing and executry practitioners. It introduces new subsections (7), (8) and (9) into section 20B of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. They have the same effect as the new subsections (6A) to (6C) inserted by amendment 103.
Amendment 110 concerns appeals to the Court of Session following unsatisfactory professional conduct complaints against solicitors. It provides for the maximum level of fine that the court may impose to be varied by order under the negative resolution procedure, in line with changes in the value of money. It also provides for the maximum level of compensation that the court may award on such an appeal to be varied under the affirmative resolution procedure following consultation with the council of the Law Society and such consumer groups as ministers consider appropriate.
Amendment 133 provides an exact equivalent of amendment 110 for appeals to the Court of Session following unsatisfactory professional conduct complaints against conveyancing and executry practitioners.
Amendments 135 to 138 are purely technical amendments. Section 38(1)(b) currently inserts new subsections immediately after section 53 subsection (7A) of the Solicitors (Scotland) Act 1980. However, amendment 215 inserts a new subsection (7B) into section 53. The subsections inserted by section 38(1)(b) should follow immediately after this. Amendment 135 therefore provides for those subsections to come after new subsection (7B) and amendments 136 to 138 renumber them as subsections (7C) and (7D).
Amendments 142 to 145 introduce into section 55 of the Solicitors (Scotland) Act 1980 a new power to vary by order the maximum fine that the Court of Session may impose on an appeal relating to a complaint of professional misconduct against a solicitor. The power is to be limited to making alterations in line with changes in the value of money, and is to be subject to the negative resolution procedure.
Amendments 147 to 151 are technical amendments. Section 38(2)(b) inserts new subsections (11F) and (11G) into section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. However, amendment 223 also inserts a new subsection (11F) into that section. Those new subsections should, in fact, follow immediately after that new subsection (11F). Amendments 147 and 148 provide for them to do so and amendments 149, 150 and 151 therefore renumber them as (11G) and (11H).
Amendments 215 and 223 provide for directions of the Scottish Solicitors Discipline Tribunal in professional misconduct cases involving solicitors and conveyancing and executry practitioners to be enforceable in the same way as extract registered sheriff court decrees. They ensure effective enforceability of such directions.
Schedule 4 paragraph 1(6N)(b) inserts new subsections (8A) and (8B) into section 53 of the 1980 act. However, those subsections should now follow new subsection (9) of that section, which is introduced by section 38(1)(c) of the bill. Amendment 216 achieves that and amendments 217 and 218 accordingly renumber the new subsections as (10) and (11).
I move amendment 103.
Amendment 103 agreed to.
Amendments 104 and 105 not moved.
Amendment 106 moved—[Johann Lamont]—and agreed to.
Amendments 107 to 109 not moved.
Amendment 110 moved—[Johann Lamont]—and agreed to.
Amendment 111 not moved.
Section 37—Unsatisfactory professional conduct: conveyancing or executry practitioners
Amendments 112 to 114 moved—[Johann Lamont]—and agreed to.
Amendments 115 and 116 moved—[Mr David Davidson]—and agreed to.
Amendment 117 not moved.
Amendments 118 to 123 moved—[Johann Lamont]—and agreed to.
Amendment 124 not moved.
Amendment 125 moved—[Johann Lamont]—and agreed to.
Amendments 126 and 127 not moved.
Amendment 128 moved—[Johann Lamont]—and agreed to.
Amendment 129 not moved.
Amendment 130 moved—[Mr David Davidson].
The question is, that amendment 130 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)
Cunningham, Roseanna (Perth) (SNP)
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)
Gibson, Rob (Highlands and Islands) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
MacAskill, Mr Kenny (Lothians) (SNP)
Martin, Campbell (West of Scotland) (Ind)
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)
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)
Scott, Tavish (Shetland) (LD)
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
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)
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, 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)
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)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
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)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
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 35, Against 65, Abstentions 0.
Amendment 130 disagreed to.
Amendments 131 and 132 not moved.
Amendment 133 moved—[Johann Lamont]—and agreed to.
Section 38—Powers to fine and award compensation for professional misconduct etc
Amendment 134 not moved.
Amendments 135 to 138 moved—[Johann Lamont]—and agreed to.
Amendment 139 not moved.
Amendment 140 moved—[Johann Lamont]—and agreed to.
Amendment 141 not moved.
Amendments 142 to 145 moved—[Johann Lamont]—and agreed to.
Amendment 146 not moved.
Amendments 147 to 151 moved—[Johann Lamont]—and agreed to.
Section 38A—Review of and appeal against decisions on remitted conduct complaints: cases other than unsatisfactory professional conduct
Amendment 152 moved—[Johann Lamont]—and agreed to.
Section 41—Safeguarding interests of clients
Amendment 153 moved—[Johann Lamont]—and agreed to.
Section 44—Criminal legal aid in solemn proceedings
Group 24 is on legal aid conditions and reviews etc. Amendment 154, in the name of the minister, is grouped with amendments 155 to 157, 164 and 165.
Amendments 154 and 155 concern solemn criminal legal aid. Amendment 157 concerns legal aid in criminal appeal cases and cases before the Judicial Committee of the Privy Council. Amendment 165 concerns legal aid in certain proceedings that relate to children. The amendments widen the scope of the Scottish Legal Aid Board's condition-making powers. Such powers were introduced at stage 2 for civil and summary criminal legal aid, and the amendments introduce such a power in relation to solemn criminal legal aid. Amendments 156 and 164 are consequential amendments.
The amendments in the group will ensure that publicly funded legal assistance and representation is appropriately provided at all stages of cases in which it has been made available. Amendment 154 will allow the Scottish Legal Aid Board the flexibility to impose such conditions as it considers expedient during the currency of a solemn case. Solemn criminal legal aid will still be available under section 23 of the Legal Aid (Scotland) Act 1986 subject to the existing financial eligibility test, which determines that legal aid should be available for an applicant who cannot meet the expenses of the case without undue hardship to them or their dependants.
Amendment 154 will enable the board to ascertain that people who receive legal aid continue to meet the financial criteria throughout the currency of their case. At present, when solemn legal aid is granted, it is not reviewed to establish whether the financial conditions continue to apply throughout the case. Cases can last a long time and the person's financial circumstances might change considerably. Amendment 154 will enable the board to ensure that legal aid should remain in place.
Amendment 155 provides the safeguard of a review mechanism whereby the board will establish a procedure that allows anyone who receives criminal legal aid that is subject to such conditions to apply for a review of those conditions.
Amendment 157 will give the board greater flexibility in imposing conditions to grants of legal aid in criminal appeal cases and cases before the Judicial Committee of the Privy Council. Legal aid will still be available subject to the eligibility tests in sections 25(2) and 25AB(2) of the 1986 act.
Amendment 165 will allow the board similar flexibility to impose conditions in certain proceedings that relate the children. As before, legal aid will still be available subject to the eligibility tests in section 29 of the 1986 act.
Amendments 157 and 165 will allow the board to require a person who receives legal aid to comply with such conditions as it considers expedient. Conditions may be imposed either when legal aid is granted or subsequently. The amendments will ensure that there is a consistent approach to the various types of legal aid. As with solemn criminal legal aid, the amendments will provide a review mechanism whereby the board will review decisions to refuse legal aid or to grant legal aid subject to conditions, if an application is made to it.
In criminal appeal cases, there is an existing power under section 25(2A) of the 1986 act for the High Court to determine that it is in the interests of justice for legal aid to be available in criminal appeal cases where the board has refused legal aid on the basis that it is not satisfied that it is in the interests of justice for it to be made available. Amendment 157 seeks to add new section 25(2B) of the 1986 act to provide for an extension of the High Court's powers. It provides that where, as a result of a condition that the Scottish Legal Aid Board has imposed, it terminates legal aid on the ground that it is no longer satisfied that it is in the interests of justice for legal aid to be available, the High Court can determine that legal aid should be made available for an appeal if it thinks that it is in the interests of justice for it to do so. Following such a determination, the board shall make legal aid available.
I move amendment 154.
I appreciate the flexibility that the minister seeks to introduce, but it is important that the details are clearly set out so that the Scottish Legal Aid Board can be properly audited and understood by the many people who wish to take advantage of its services.
I am looking for an assurance from the minister that we will be able to know where all this will be laid out clearly, so that those who may wish to give advice on what is being introduced and those who seek assistance will know clearly what is being spelt out today.
Do you wish to add anything, minister?
Just that clarity is always my watchword. We ensure that everything we do is clear to everyone who needs the information in order to proceed.
Amendment 154 agreed to.
Amendment 155 moved—[Johann Lamont]—and agreed to.
Section 44A—Criminal legal aid: conditions and reviews
Amendments 156 and 157 moved—[Johann Lamont]—and agreed to.
Section 45—Register of advice organisations: advice and assistance
We move to group 25—adviser code: complaints. Amendment 158, in the name of the minister, is the only amendment in the group.
The draft adviser code that the Scottish Legal Aid Board submitted to the Justice 2 Committee at stage 2 requires registered organisations to have procedures in place for dealing with complaints and, when appropriate, for enabling complainers to pass on complaints to the board. There is, however, no requirement in the bill for complaints handling to be covered by the code. Amendment 158 provides that the board is required to include such details in the code and fulfils a commitment that was given to the committee at stage 2 by Hugh Henry.
I move amendment 158.
I welcome the minister's acceptance of the point that was made by my colleague, Bill Aitken, at stage 2. We are pleased that the Executive has lodged the amendment, which will ensure clarity.
Amendment 158 agreed to.
Section 45A—Scottish Legal Aid Board: grants for certain purposes
Group 26 is on the power of the Scottish Legal Aid Board to make grants. Amendment 159, in the name of the minister, is grouped with amendments 160 and 161.
Amendments 159, 160 and 161 are intended to provide clarification on the provisions in the bill that relate to grant funding.
The grant-funding power and the extension of advice and assistance to non-lawyer advisers that are established by the bill are limited to matters of civil law only. Amendment 159 makes it clear that the board may make grants in respect of advice and assistance that are provided by a non-lawyer adviser only in respect of matters of civil law.
Amendment 160 clarifies that the board can use its grant-funding power to support the full range of publicly funded legal assistance activities. It specifies that representing a member of the public is to be included in the list of fundable activities, along with advising them on the application of law to their individual circumstances and assisting them to remedy their legal problems.
Our intention for the operation of the grant-funding power is that the standard eligibility tests that individual applicants for legal aid must meet need not be applied automatically in respect of grant funding for the provision of advice, assistance or representation that is not traditional civil legal aid or advice and assistance. There are many good reasons why that may be appropriate when the award of a grant does not relate to the direct provision of advice to an individual. It would be incongruous to apply criteria that assess an individual's financial eligibility or the merits of an individual case to an application for funding towards work to develop advice standards or for the provision of advice to a group of people. The bill originally disapplied the sections of the 1986 act that contained the relevant eligibility tests and definitions but allowed the board to apply them to individual grants, when appropriate.
On reflection, we consider that new section 4A(2)(c) of the Legal Aid (Scotland) Act 1986, which is introduced by section 45A of the bill, is sufficiently flexible not to require the disapplication of those sections, as it does not make provision for the traditional civil legal aid and advice and assistance that are defined in the Legal Aid (Scotland) Act 1986. However, when civil legal aid or advice and assistance is provided in terms of a grant under section 4A(2)(a) or section 4A(2)(b) of the 1986 act, the usual eligibility and other tests that are contained in the 1986 act will apply. Amendment 161 therefore removes the provisions that would otherwise disapply the relevant sections of the 1986 act from grant funding.
Amendment 161 makes it clear that grants may be made both to individual persons and to organisations; Maureen Macmillan raised that point at stage 2. It does that by clarifying the definition of "person" in relation to the provision of grants under section 4A of the 1986 act only. That is to avoid confusion elsewhere in the 1986 act, where "person" importantly refers to an individual applicant for legal aid.
I move amendment 159.
Amendment 159 agreed to.
Amendments 160 and 161 moved—[Johann Lamont]—and agreed to.
After section 45A
Group 27 is on financial limit: advice and assistance. Amendment 162, in the name of the minister, is the only amendment in the group.
Section 10 of the Legal Aid (Scotland) Act 1986 sets financial limits to grants of advice and assistance by solicitors. It also provides that solicitors must seek the prior authorisation of the Scottish Legal Aid Board before giving advice and assistance over and above the financial limits that are set down in the section.
Amendment 162 has two purposes. First, it will build on the reforms that are soon to be made to advice and assistance under regulations. An amendment that was passed at stage 2 to create section 46A of the bill allows regulations to be made to provide the Scottish Legal Aid Board with additional powers to determine the matters that are or are not to be treated as distinct matters for advice and assistance.
Taken together, that amendment and amendment 162 will make the changes to advice and assistance that were outlined in the consultation on the proposed reform of advice and assistance in civil cases that Hugh Henry, the then Deputy Minister for Justice, issued in late 2004 and which ran to early 2005. Several changes are being developed in response to the views that were expressed in the consultation. They will ensure that, in civil cases, the advice and assistance scheme will be flexible and will operate as efficiently as possible.
Under the reformed advice and assistance scheme, solicitors in some cases will be paid a fee for the initial interview and work that relates to it but no more. That will apply when the case's subject matter is neither listed by the Scottish Legal Aid Board as a distinct matter nor treated as such. The cases that would be caught are the same ones for which solicitors claim minimum fees now.
Amendment 162 is necessary to ensure that solicitors cannot ask for the financial limit of such initial interviews and work that relates to them to be exceeded. Allowing increases for such work would in effect remove the gains that would be made in removing the current abuses of the minimum fee arrangement.
Secondly, amendment 162 will allow the Scottish Legal Aid Board to make advice and assistance available retrospectively in some cases. It provides that the board may do so only when the advice and assistance were required to be given by the solicitor urgently and when it was impossible for the solicitor to obtain the board's prior authorisation. An example is giving advice and assistance outwith office hours in a criminal defence case because a client was taken into custody late at night. The amendment provides the Scottish Legal Aid Board with discretion to grant such applications only when it is satisfied that the advice and assistance required to be given urgently and when it was impossible for the solicitor to apply for an increase in authorised expenditure before doing the work.
The amendment provides that such retrospective approvals of advice and assistance cannot be given for cases whose subject matter does not appear on the list of distinct matters or is not treated by the board as if it appeared there when the work that the solicitor performs is solely to do with an initial interview and work that relates to it.
The 1986 act provides that the solicitor makes the initial assessment of whether, when the usual eligibility tests are taken into account, advice and assistance can be approved. The amendment makes no change to that arrangement. Solicitors will still approve and make the initial grant of advice and assistance.
I move amendment 162.
Amendment 162 agreed to.
Group 28 is on payments in and out of the fund: contributions, expenses and property recovered. Amendment 163, in the name of the minister, is grouped with amendments 167 to 170.
Section 17 of the 1986 act defines the net liability on the legal aid fund as the aggregate of the sums paid or payable out of the fund to a solicitor, counsel or non-lawyer adviser that are not recouped by the fund from expenses. Amendment 169 will amend section 17 so that an assisted party who meets the net liability as a result of property that is recovered or preserved and whose opponent subsequently pays legal expenses to the board may receive any amount in excess of the net liability and therefore benefit from the outcome of the court proceedings in their favour. Amendment 167 will amend section 4 of the 1986 act so that such payments may be made from the legal aid fund.
The other amendments in the group are intended to take account of changes that the bill introduces to enable advice and assistance to be provided by virtue of the board's new grant-funding power or by a solicitor whom the board employs to provide assistance with civil law matters. Their general purpose is to ensure that people who receive advice and assistance through those routes are not disadvantaged in comparison with people who are assisted through the more traditional route of services that are provided by a private sector solicitor.
Amendment 163 enables the board to make payments out of the fund to assisted parties where such payments would have been likely, had advice and assistance not been provided by virtue of a grant or by a board-employed solicitor.
Amendment 168 provides that payments may be made into the fund in respect of expenses or property recovered in proceedings where advice and assistance are provided by virtue of a grant from the board or by a solicitor employed by the board.
Amendment 170 provides that, when the board calculates the net liability on the fund in instances where civil legal aid and advice and assistance have been provided through a grant from the board or by a solicitor employed by the board, the calculation should be made with reference to the sums that would have been payable from the fund if the civil legal aid and advice and assistance had been provided through the more traditional private solicitor route.
I move amendment 163.
Amendment 163 and the rest of the amendments in the group are welcome additions to the grant aid power. For clarity, does the minister see this as a loans system to help people to get access to and to use their right to raise a case in the court on a basis that will be fiscally neutral for the public purse?
I do not see it as a loans system.
Amendment 163 agreed to.
Section 45C—Civil legal aid: conditions and reviews
Amendments 164 and 165 moved—[Johann Lamont]—and agreed to.
After section 45C
Group 29 is on availability of legal aid: Judicial Committee of the Privy Council. Amendment 166, in the name of the minister, is the only amendment in the group.
Amendment 166 extends the availability of publicly funded legal assistance for proceedings before the Judicial Committee of the Privy Council that are not currently covered under the Legal Aid (Scotland) Act 1986. It provides that persons whose cases raise devolution issues that are referred to the Judicial Committee of the Privy Council under paragraph 33 of schedule 6 to the Scotland Act 1998 may receive legal aid. Those comprise proceedings in which the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland has required a court or tribunal to refer to the Judicial Committee of the Privy Council a devolution issue arising in proceedings before that court or tribunal. In such cases, the eligibility tests that are laid down in the 1986 act must be satisfied.
Where criminal legal aid has been made available in connection with the proceedings in which the reference is made, the legal aid certificate for the principal proceedings would already cover the reference. For that reason, the amendment provides that in such cases the legal aid provided is not by virtue of section 25AB of the 1986 act.
The amendment extends legal aid provision to cases in which devolution issues have arisen in judicial proceedings in the House of Lords. Paragraph 32 of schedule 6 to the Scotland Act 1998 allows the House of Lords to refer such issues to the Judicial Committee of the Privy Council. The amendment extends the availability of civil legal aid to provide that it will be available for such references when the eligibility tests that are laid down in the 1986 act are satisfied. For cases in which the House of Lords considers that, given all the circumstances, it should determine the devolution issue, legal aid may already be available under the 1986 act, where the proceedings are appeals from the Court of Session and the eligibility criteria apply.
A recent case has illustrated the lack of legal aid provision in direct references under paragraph 33 of schedule 6 to the Scotland Act 1998. That will now be corrected. The provisions will be brought into force as soon as possible.
I move amendment 166.
Amendment 166 agreed to.
Section 46—Contributions, and payments out of property recovered
Amendments 167 to 170 moved—[Johann Lamont]—and agreed to.
Section 48—Ancillary provision
Amendments 171 and 172 moved—[Johann Lamont]—and agreed to.
Section 49—Regulations or orders
Amendments 226, 227 and 174 moved—[Johann Lamont]—and agreed to.
Amendment 238 not moved.
Schedule 1
The Scottish Legal Complaints Commission
Group 30 is on the Scottish legal complaints commission: appointment of members. Amendment 175, in the name of David Davidson, is grouped with amendments 176 to 180.
The independence of the commission is crucial. [Interruption.] I apologise, Presiding Officer—I have now turned off my phone.
Many members have difficulties with questions relating to the commission's independence. They and people outside the Parliament are greatly concerned about how independent an organisation whose members are appointed by ministers will be. The minister and her colleagues have moved some way by proposing the involvement of the Lord President in dealing with removals—that struck me as the beginning of a move towards a sensible solution to the problem—and she appears to be moving a little further so that the Lord President could even be involved on a consultative basis.
The committee took a lot of evidence on the commission's independence. Many people called for the commission to be completely independent of legal practitioners and ministers. Will the minister go all the way and make the commission independent, or does she want to settle for the Lord President being involved? I am not sure how far she is prepared to give way on the matter, but an important issue is involved. People outside the Parliament and people who do not practise the law should understand that the commission, which is supposed to act on behalf of members of the public, is independent.
I move amendment 175.
Amendment 175 would require commission members to be appointed by the Lord President of the Court of Session rather than by the Scottish ministers. Amendments 177, 178 and 179 are consequential on amendment 175.
We still think that it is essential for appointments to the commission to be made by ministers and that that is entirely compatible with the European convention on human rights. Our proposals are coherent and consistent with our policy position—we do not want a halfway house, which David Davidson perhaps implied that we wanted.
A wide range of qualities will have to be taken into account in appointing commission members, such as the person's experience of complaints handling and consumer awareness. Commission members will also have an important strategic management role. The range of qualities that will be needed will be best assessed in a selection process that is carried out under the umbrella of the Scottish ministers. I repeat that the appointments will be supervised by the commissioner for public appointments in Scotland and will not be political appointments. Therefore, I invite David Davidson not to press his amendments.
However, I have been persuaded that the Lord President's being given a consultative role would provide reassurance to those who still have concerns about the appointments process and that that will help to reinforce the fact that members of the new commission will have to be able to adjudicate in an independent and impartial way. Those judicial qualities will be assessed as part of the appointments process. Amendment 176 is therefore a small but significant amendment, which will require ministers to consult the Lord President before appointing members of the commission.
Paragraph 5(1A) of schedule 1 states that where the expression "the Lord President" is used, the Lord President of the Court of Session is meant. That clarification has been provided in amendment 176, the text of which will appear earlier in the schedule. The words to that effect in paragraph 5(1A) of schedule 1 are therefore no longer necessary and will be removed by amendment 180.
I fully accept that convention rights will be complied with, but I am not entirely satisfied that what has been proposed is right. The minister recognises that people are sensitive about the issue. I acknowledge that she has come some way along the road with us and also that a chicken-and-egg argument is involved, as the commission cannot materialise out of the ether—it must come from somewhere. However, we should bear it in mind that judicial independence is one of the keystones of the Scottish legal system and therefore we must be exceptionally careful about what we are doing.
The Executive must be detached from the commission and the setting up of that commission as far as is humanly possible or else there will be accusations of unfairness. I am perfectly satisfied that what the Executive seeks to do is not going along those lines. However, it must not only be fair, but it must be seen to be fair, and the detachment that is necessary is met with in Mr Davidson's amendments.
Does not Mr Aitken acknowledge that the minister's amendments, which I hope that all members will support, make the bill much more consistent with the Scottish Solicitors Disciplinary Tribunal? Ministers are involved in the appointment of members to that tribunal, and that does not seem to give him much concern.
I recognise that what the minister has done is helpful, but I do not think that the argument about the Scottish Solicitors Discipline Tribunal is consistent. A degree of sensitivity attaches to appointments to the commission that does not apply to the tribunal. Even at this late stage, I look to the minister and recommend to her that David Davidson's amendment 175 be accepted.
I must simply say to Mr Purvis that we are dealing with the bill that is before us today. I do not know why he is bringing in an argument about something else.
Will the member give way?
I do not have time. Quite simply, I intend to press amendment 175.
The question is, that amendment 175 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)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
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)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Against
Adam, Brian (Aberdeen North) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
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)
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)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
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)
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, Campbell (West of Scotland) (Ind)
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)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (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)
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)
Swinney, Mr John (North Tayside) (SNP)
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)
The result of the division is: For 13, Against 74, Abstentions 0.
Amendment 175 disagreed to.
Amendment 176 moved—[Johann Lamont]—and agreed to.
Amendments 177 to 179 not moved.
Amendment 180 moved—[Johann Lamont]—and agreed to.
Group 31 is on the Scottish legal complaints commission: delegation of functions. Amendment 181, in the name of David Davidson, is grouped with amendments 182, 183 and 183A. I draw members' attention to the pre-emption information that is shown on the groupings list.
Amendment 181 is a paving amendment for amendment 183. The argument for amendment 183 is that it provides an opportunity to set up a determination committee for the new commission. According to the bill, as currently drafted, the functions of the commission can be exercised by any of the persons mentioned in paragraph 13(1) of schedule 1, including a member of staff of the SLCC. The only exception is for the function of determining whether the complaint is frivolous or vexatious, which can be exercised only by one of its committees or by an SLCC member. However, those are all essential and important functions relating to a complaint, and they should therefore be made by a determination committee.
In considering this part of the bill, we have a choice between the minister's amendment 182 and my more concise amendment 183, with amendment 181, which would, if agreed to, pre-empt amendment 182.
I move amendment 181.
Amendment 182 follows on from amendments that were made to the bill at stage 2, whereby complaints are to be screened out and not investigated by the commission if they are deemed to be
"frivolous, vexatious or totally without merit"
rather than simply "frivolous or vexatious". Paragraph 13(1A)(a) of schedule 1 contains a reference to "frivolous or vexatious" that should also be extended to include the new criterion of being "totally without merit".
Amendments 181, 183 and 183A would require that only a determination committee of commission members could be delegated by the commission to make decisions on whether a complaint is frivolous, vexatious or totally without merit, whether a complaint has been made timeously or prematurely, whether a complaint constitutes a conduct complaint or a services complaint, and whether the complaint has been made by an eligible complainer.
At present, the bill provides that the first of those decisions—whether a complaint is frivolous or vexatious—may be delegated to any committee of the commission or to a commission member. The other decisions could currently be more widely delegated and could be taken by commission staff. I believe that the existing mechanisms provide adequate safeguards. It is in no one's best interests for the debate on whether a complaint is frivolous, vexatious or totally without merit to be prolonged. Some exercise of judgment will be involved in such decisions, but the correct decision will generally be obvious to a disinterested person. Although the decision will have an important impact on the complainer, delegation to a commission member is reasonable.
The issue whether a complaint has been made timeously or prematurely will largely be resolved by applying the commission's own rules. In deciding whether a complaint is a conduct complaint or a services complaint, the commission will apply criteria that have been developed and applied by the Law Society over many years along with precedents that the commission has set internally. The issue whether a complaint has been made by an eligible person should be fairly straightforward, given that anyone is permitted to make a conduct complaint whereas services complaints may be made by anyone who has been directly affected by the standard of service plus a list of defined public bodies and office holders. The task of deciding the category of the complaint can safely be delegated to competent members of staff.
Consideration needs to be given to ensuring that commission members are not overwhelmed and that staff are able to act to progress cases through the system. For example, every complaint that comes through the commission's doors must be categorised as either a services complaint or a conduct complaint. If that task had to be performed by determination committees, the process of dealing with complaints could grind to a halt. Section 11 permits a complaint to be recategorised at a later stage if it appears that the original classification was wrong. We should also not forget that, if a statutory test that is contained in the bill has been misunderstood or wrongly applied, judicial review procedure will be available to correct the error.
I have listened to what the minister said, but I will press amendment 181.
The question is, that amendment 181 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)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Johnstone, Alex (North East Scotland) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Against
Adam, Brian (Aberdeen North) (SNP)
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)
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)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gallie, Phil (South of Scotland) (Con)
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)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
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)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Martin, Campbell (West of Scotland) (Ind)
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)
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)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
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)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (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)
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)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 11, Against 86, Abstentions 0.
Amendment 181 disagreed to.
[Interruption.]
We have a repeat offender.
Members might find that, if they switch off their mobile phones altogether, the chances are that they will not go off a second time.
Amendment 182 moved—[Johann Lamont]—and agreed to.
Amendment 183 not moved.
Group 32 is on the accounts and reports of the proposed Scottish legal complaints commission. Amendment 184, in the name of David Davidson, is grouped with amendments 185 to 188. I draw members' attention to the pre-emption information that is given in the groupings paper.
With amendment 184, I seek that accounts and reports would come to Parliament and not to ministers. That would add to the atmosphere of independence and accountability that we hope will be generated around the proposed commission. Apart from some set-up costs, the Executive is not funding the commission; it will therefore not be taxpayers who fund it, but legal practitioners. Parliament would be best placed to receive reports, so that we can scrutinise them independently on behalf of the public.
Amendment 187 would qualify the minister's amendments in the group. Amendments 186 and 188 overlap with my amendments, so I suggest that, as part of the new and very enjoyable partnership that has developed in the chamber today as we have worked on the bill, the minister accept my amendments and not move her own. Parliament must take precedence over the Executive when the Executive is not providing the funding: Parliament represents the people.
I move amendment 184.
It is always advisable for members not to push their luck.
Ministers are committed to ensuring the transparency of the proposed commission's annual accounting and reporting processes. Amendments 185 and 186 relate to the commission's annual statement of accounts. Paragraph 15(2) of schedule 1 requires the Scottish ministers to send it to the Auditor General for Scotland for auditing. Amendment 185 will tighten and clarify that duty by requiring that it be performed "as soon as practicable". Amendment 186 will add a new requirement for the Scottish ministers then to lay the audited statement before Parliament "as soon as practicable".
Paragraph 16(4) of schedule 1 requires the Scottish ministers to lay a copy of the commission's annual report before the Scottish Parliament. Amendment 188 stipulates that this is to be done "as soon as practicable", in line with amendments 185 and 186.
David Davidson has lodged alternative amendments. Amendment 184 would require the commission to send its annual statement of accounts to Parliament rather than to ministers, but ministers would not be able to send the statement to the Auditor General for auditing or to lay the audited statement before Parliament, if the statement has not been sent to us in the first place.
Amendment 187 is an alternative to amendment 186. It uses the wording
"as soon as is reasonably practicable"
rather than "as soon as practicable". I do not think that this would make any difference in practice to the way in which the duty will be interpreted. I am content that ministers would be more than happy to perform the duty "as soon as practicable".
I invite David Davidson not to press amendment 184 and not to move amendment 187, and I urge members to support amendment 185.
The minister and I simply do not agree. I will press amendment 184.
The question is, that amendment 184 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)
Brownlee, Derek (South of Scotland) (Con)
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)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Against
Adam, Brian (Aberdeen North) (SNP)
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)
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)
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)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
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)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Martin, Campbell (West of Scotland) (Ind)
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)
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)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
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)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (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)
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 14, Against 84, Abstentions 0.
Amendment 184 disagreed to.
Amendments 185 and 186 moved—[Johann Lamont]—and agreed to.
Amendment 187 not moved.
Amendment 188 moved—[Johann Lamont]—and agreed to.
Schedule 3
Rules as to Commission's practice and procedure
We come now to the 33rd group of amendments, on rules as to practice and procedure. Amendment 190, in the name of the minister, is grouped with amendments 191 to 195, 198 and 212.
Amendments 190 to 192 are intended to address a continuing concern of the Law Society. Paragraph 1(c) of schedule 3 will currently oblige the proposed commission to make rules requiring it to have regard to the European convention on human rights in deciding whether to hold a hearing in relation to a complaint, and whether that hearing should take place in public or private. The Law Society has argued that such a reference to "having regard to" convention rights dilutes the requirement on the commission to act compatibly with the ECHR. I do not believe that that is the case. Like all public bodies, the commission will be under a duty to act compatibly with the ECHR in everything it does. It is not required that that be stated in the bill and it would not be possible for paragraph 1(c) of schedule 3 to detract from that duty. The wording is intended purely as a special reminder to the commission in the context of decisions about hearings, where ECHR considerations are particularly likely to arise.
However, ministers have listened to what the Law Society has said, so we accept on reflection that the reference to "having regard to" convention rights may be infelicitous. I believe that it is preferable to remove the controversy about that relatively minor point, so amendments 190 to 192 will remove the reference to "having regard to" convention rights. Paragraph 1(c) of schedule 3, as amended, will simply oblige the commission to make rules that will require it to hold a hearing where it considers that to do so is appropriate, and to decide whether such a hearing should be in public or in private.
Amendments 193 and 198 are intended to provide reassurance that the proposed commission will be rigorous in its approach to evidence-gathering, and will treat evidence according to clear criteria. They will oblige the commission to make rules as to the evidence that may be required or admitted in relation to complaints, the extent to which evidence may be oral or written and the consequences of a person's failure to produce information or documents that have been required by the commission. Previously, the commission had discretion as to whether to make rules on that topic. Amendment 198 will delete that provision from the commission's discretionary rule-making powers, and amendment 193 will insert it into the list of matters that must be covered in the commission's rules.
Amendments 194 and 195 reinforce what has always been our policy, which is that the proposed commission and its determination committees will act as independent and impartial tribunals when making binding rulings on the merits of services complaints. Within the commission there is, of course, a two-stage dispute resolution process. First, there is an initial informal investigation of the complaint, which will usually result in a provisional settlement being proposed to the parties. That initial stage will normally be carried out by commission staff, although it is possible that commission members may be involved, for example if the case might set an important precedent. Such a provisional settlement will not be binding unless all the parties accept it. I hope that over time that will increasingly become the norm as confidence in the process grows. It is in everyone's best interests for disputes to be resolved informally and amicably if possible. However, if all parties do not accept the provisional settlement, the complaint will be referred for a formal determination. That can be done only by the full commission or by a determination committee of commission members.
Paragraph 1(f)(ii) of schedule 3 specifies that, where a provisional settlement has been proposed to the parties but not accepted by all of them, the commission's rules must require the members of the determination committee that rules on the complaint to have had no involvement in the formulation or making of the proposed settlement. It is designed to eliminate any possible appearance of bias. Amendment 194 will extend that provision slightly, to require the commission's rules also to stipulate that members of the determination committee must have had no involvement in any aspect of the prior investigation of the complaint, including any decision as to whether the complaint was frivolous, vexatious or totally without merit. That will further reinforce the separation between informal initial complaints handling and the final binding adjudication that is required where a complaint cannot be resolved informally.
Amendment 195 provides additional reinforcement along the same lines by ensuring a corresponding separation between initial investigation and binding determination if the full commission chooses to adjudicate on a complaint itself, rather than to delegate the matter to one of its determination committees. I am aware of the second opinion that the Law Society has obtained from Lord Lester, arguing that the commission will not be an independent and impartial tribunal because it will be an investigative and not a judicial body. However, I firmly believe that that view wrongly conflates the two processes of investigation and determination, which are entirely separate. Amendments 194 and 195 will reinforce that separation. The commission and its determination committees will act as an independent and impartial tribunal when they rule on complaints.
Amendment 212 will permit the Scottish Solicitors Discipline Tribunal to make rules entitling or requiring persons to appear, or to be represented, at any appeal from the council of the Law Society on an unsatisfactory professional conduct complaint against a solicitor, or in relation to a direction requiring a solicitor to undertake further training. That can be used to ensure, for example, that the solicitor appears where required, and that any individual complainer appears or is represented where appropriate.
I move amendment 190.
Amendment 190 agreed to.
Amendments 191 to 198 moved—[Johann Lamont]—and agreed to.
Schedule 4
Amendments 199 to 210 moved—[Johann Lamont]—and agreed to.
Amendment 211 not moved.
Amendments 212 to 220 moved—[Johann Lamont]—and agreed to.
Group 34 concerns the disclosure of information by the Scottish Legal Aid Board. Amendment 221, in the name of the minister, is the only amendment in the group.
Amendment 221 will update the list of exceptions to the disclosure rule in section 34(2) of the Legal Aid (Scotland) Act 1986. It will enable employees of the board to provide information to the Scottish information commissioner for the purposes of section 50 of the Freedom of Information (Scotland) Act 2002. Without the amendment, the provision of information for that purpose would constitute a criminal offence under the 1986 act.
I move amendment 221.
Amendment 221 agreed to.
Amendments 222 and 223 moved—[Johann Lamont]—and agreed to.
That ends consideration of amendments.