Official Report 984KB pdf
The next item of business is a debate on motion S6M-17584, in the name of Siobhian Brown, on the Regulation of Legal Services (Scotland) Bill at stage 3. I would be grateful if members who wish to speak in the debate were to press their request-to-speak buttons.
17:21
I am pleased that we have completed stage 3 of the Regulation of Legal Services (Scotland) Bill with so much consensus on the final amendments to the bill, just as we had at stage 2.
The bill’s journey from its introduction to this final stage has been a rigorous and collaborative process involving extensive consultation and discussion. I start, therefore, by acknowledging the contributions of all stakeholders, particularly the legal professionals, regulatory bodies, consumer representatives and members of the public who have shared their insights and views. I thank them for their input, which has been invaluable in shaping the bill and ensuring that it reflects the interests of all those who interact with the legal system.
I thank the members and the clerks of the Equalities, Human Rights and Civil Justice Committee for their scrutiny work and engagement with me throughout the passage of the bill. Last, but definitely not least, I express my deepest gratitude to the bill team, who predate my responsibility for the bill and have been a huge support throughout, for working tirelessly on the bill for two years.
There is no doubt that the Regulation of Legal Services (Scotland) Bill is a technical piece of legislation that may seem dry to many. However, it has provided Parliament with a major opportunity to modernise and improve the way in which we regulate legal services in Scotland. The bill will enhance the standards, accessibility and transparency of the legal profession, making it better equipped to serve the people of Scotland in an ever-evolving legal landscape.
At its core, the bill seeks to deliver a framework that ensures that Scotland’s legal services are accessible, accountable and of the highest quality.
There is huge concern that consumers have been forgotten in the bill. What is your view on that?
I know that Tess White has become a member of the committee only recently. Throughout the bill’s passage, it has been incredibly difficult to find a balance between the legal profession and the consumer side, starting from day 1, when it was suggested—before my time as minister in charge of the bill—that there be an independent regulator, and we decided not to pursue that. We have engaged constructively with the legal profession, and—as Tess White will know—on some of the amendments that have been considered today, to strengthen the consumer side. I am not going to say that the process has been easy—it has been difficult to get the bill through and find that balance. However, I hope that, as we move forward today, we have achieved that.
The framework delivered by the bill aims to balance the interests of stakeholders—who, although they have differing views, all support this bill—and ensure that Scotland’s legal sector remains trusted, transparent and effective in meeting the needs of those that it serves.
I will briefly remind members of the bill’s key provisions. It will provide a more consumer-focused approach by introducing a more flexible and consumer-focused regulatory structure that ensures that individuals who seek legal services receive high standards of service and clarity on their redress options. For too long, consumers of legal services have struggled to understand the complexities of the complaints system. The bill aims to remedy that by establishing clearer processes for consumers to seek redress and hold legal providers accountable. The bill also strengthens the consumer voice by providing the consumer panel with a robust footing and a wider remit.
The bill will also ensure improved oversight and accountability. As the ultimate regulator of Scotland’s legal sector, the Lord President is empowered by the bill to oversee and improve the functions of legal services. For example, I lodged amendments at stage 2 in order to transfer to the Lord President the ability to review a regulator’s performance. I have also lodged amendments that would require the Lord President’s consent to be gained before any changes may be made to the regulatory category of a regulator.
Finally, the bill will increase access to justice, as it will introduce provisions to widen access to legal services. It will enable innovative service delivery models, including alternative business structures. This change will help to ensure that legal services are available in a way that meets the needs of a modern, diverse society. The bill also removes restrictions on third sector bodies, to allow them to employ solicitors and represent some of the most vulnerable in society.
Let me also reflect on the broader context within which this legislation has emerged. Scotland’s legal sector plays an integral role in maintaining the rule of law and upholding justice. From individuals who are seeking advice in family law matters to businesses that are navigating complex commercial disputes, the demand for accessible, efficient and accountable legal services is growing.
However, as we know, the landscape of legal services has changed dramatically over the past decade, and that change has accelerated in recent years. The rise of technology, the increase in diverse legal needs, and the challenges that consumers face have highlighted the need for reform.
The bill is a direct response to those challenges and a recognition that, although our legal services sector is one of the best in the world, it is not without areas for improvement.
Throughout the consultation process, many views were expressed on the idea of having a single independent regulator. We have taken great care to ensure that the regulatory framework that the bill provides is proportionate, balanced and sensitive to the autonomy of the legal profession while ensuring that the public interest remains at the heart of the regulatory process.
This bill is a vital piece of legislation that has the potential to reshape the legal services landscape in Scotland, which I am sure we all welcome.
Ultimately, the bill is about improving the everyday experience of people who need legal help and ensuring that legal services are delivered in a way that is fair, equitable and accessible for all. It is about empowering both consumers and professionals to build a stronger, more resilient legal system that reflects the values of our society and meets the expectations of our citizens.
I am confident that the Regulation of Legal Services (Scotland) Bill can deliver a robust regulatory framework that serves both the interests of the legal profession and the people of Scotland, and I urge all members to support it.
I move,
That the Parliament agrees that the Regulation of Legal Services (Scotland) Bill be passed.
17:28
I thank all the individuals and organisations who have supported and contributed to the parliamentary passage of the Regulation of Legal Services (Scotland) Bill. I also thank the minister, who engaged constructively with members ahead of stage 3.
I appreciate that, for many stakeholders, the bill is long overdue, and I hope that my amendment 137, which secures a review of the act, will reduce the timescales for change in the future.
It is clear that the current system, which covers entry to the profession, professional practice, complaints and financial compliance, is not fit for purpose. Much of the relevant legislation is more than 40 years old, but the legal services market is constantly evolving. However, the corresponding regulatory regime is clunky and inflexible.
I am a member of the Equalities, Human Rights and Civil Justice Committee, which has been hearing about huge issues with access to justice. The whole system is frustrating for regulatory bodies, but it is often the consumer who bears the brunt of its failings. The committee has heard that, sometimes, consumers have to try 100 solicitors before they find one who will act on their behalf. The system is crying out for modernisation.
Scottish Conservatives believe that the bill truly represents a missed opportunity, which is why we will vote against it at decision time. In the brief time that is allocated to me, I want to explain our reasoning carefully, because I understand that the legal profession has expressed strong feelings on the subject. However, it is vital that the consumer's voice is heard during the process.
There are two key issues. The first is that the bill fails to consolidate the existing legislative landscape into a single act, which the Law Society of Scotland called for in order to simplify that fragmentation. At stage 2, the bill was the most heavily amended in the Scottish Parliament’s lifetime.
Does Ms White appreciate the history of the bill and how matters have progressed since 2010? If the bill is not passed today, we will go back to scratch and there will be no reform of the legal profession.
When the bill process started, there was an unacceptable situation, which the legal profession reported directly to Scottish ministers. It was absolutely absurd and threatened the independence of the judiciary. The bill that we are debating and voting on today is not the one that existed at the start of the process.
The Scottish Legal Complaints Commission’s consumer panel is clear that the bill will make the current regulatory landscape even more complex and difficult to understand. We had an opportunity to overhaul that landscape, but the bill simply tinkers around the edges of a byzantine system.
Secondly, there has been considerable debate on who should regulate the legal profession. The Roberton review concluded that there should be a single independent regulator and a single streamlined complaints process. I note that, in its stage 3 briefing on the bill, Consumer Scotland echoed that call.
Tess White spoke about the challenges that the bill presents, particularly with regard to the independence of the judiciary. However, I am not sure whether she is supportive of having an independent regulator, so it would be useful if she could clarify that. Does she recognise what the Faculty of Advocates said in its evidence to the committee, which was that it considers that to be
“a hare that was ... shot long ago”?
We are fully supportive of having an independent regulator. The regulators and the judiciary were fundamentally opposed to the approach of having a single independent regulator, but we believe that it is important and that the corresponding recommendation of the Roberton review should have been followed through.
In its eternal wisdom, the Scottish Government settled on a so-called workaround in the bill, which satisfied no one. It created sweeping new ministerial powers to intervene directly in the regulation of legal services, prompting widespread condemnation—from the legal profession and beyond—of what was seen as a Government assault on the rule of law. Its approach was considered to be bad law making.
Will the member take an intervention?
Will Tess White give way?
I will take the minister’s intervention first.
I am slightly confused by Ms White’s contribution. She said that the Scottish Conservatives would fully support having an independent regulator, but then she referenced the legal profession’s position. Does she appreciate that the profession was 100 per cent against having an independent regulator? We have to be on one side or the other—we cannot sit on the fence or be on both sides.
I am saying that, when the bill process started, the Scottish Government wanted the judiciary to report directly to ministers, which was absolutely absurd. We have now reached a point where we are tinkering around the edges as the bill increases cost and complexity, and consumers are not being fully taken into consideration.
On the theme that the member has raised, the judiciary’s concern was about maintaining its independence in the processing of complaints. Does she envisage that an independent regulator would be answerable to the Government or the Lord President of the Court of Session?
The independent regulator should report directly to the Lord President, definitely not the Scottish Government.
It is to the minister’s credit that ministers’ powers to intervene were removed at stage 2, following calls from the legal sector and the Scottish Conservatives. At stage 3, our overriding concern is that the bill fails to decouple the complex complaints process from the system of self-regulation by the professional bodies. That was a recommendation of the Roberton review, as well as the Equalities, Human Rights and Civil Justice Committee at stage 1.
I note comments from the SLCC’s Consumer Panel. It said:
“We are concerned ... that most of the attention and concessions in the debate so far have been given to the views of the legal profession, while there has been limited engagement with the views of consumers or consumer groups.”
The reality is that, for consumers of legal services, it is not always clear where self-regulation ends and self-interest takes over. The view among consumers is that it feels like David against Goliath.
The complaints process is overly complex, impossible to navigate and glacially slow. At stage 2, I lodged probing amendments that proposed using the Scottish Legal Complaints Commission’s existing infrastructure to investigate all conduct and service complaints.
My key point is that the bill merely tinkers with the status quo. The changes do not go far enough, which is why the Scottish Conservatives will vote against the bill later today.
17:37
I am pleased to speak in the debate on behalf of Scottish Labour and confirm that we will support the bill at decision time this evening.
As we have heard already in contributions, the process has been long for all involved—not merely this afternoon, although I appreciate that for colleagues it might have felt like two years when, in fact, it has been only two hours. We have been at the bill for two years, and it has been more than a decade since some stakeholders who have been calling for reform of the regulatory system began working for it. On that point, I thank all the organisations and individuals who have engaged on the bill, not least the Law Society of Scotland, the Faculty of Advocates, the Scottish Legal Complaints Commission and many others, including people who have experience of complaints against solicitors in Scotland. Their time and efforts have certainly moved the bill into a much better place than where it started.
It would be remiss of me not to reflect on why the bill has taken so long to come to its conclusion. As we have heard, the bill was controversial when it was introduced, as the Scottish Government attempted to take control of legal services regulation through ministerial powers. Such was the significance of the threat to the independence of the judiciary and the legal profession, which is a fundamental tenet of a well-functioning democracy, the senior judiciary was left in the unprecedented position of speaking out on the proposals. It might be the first time in the Parliament’s history that the senior senators of the College of Justice have come to give evidence on a piece of legislation that directly related to their functions and the function of legal services in Scotland.
I am sure that many, in and outwith the chamber, were baffled that a policy could be formed and a bill introduced that so fundamentally threatened the profession’s independence, when there were no calls or recommendations for such a position to be taken.
I recognise that the minister listened to the depth and breadth of concern about the proposals and lodged significant amendments at stage 2 to reverse that position. However, I think that serious learning remains to be done by the Government about how it took that position in the first place.
I pay tribute, though, to the minister. She came into office part way through the bill process and inherited the bill in the condition that it was in. She has sought to listen and engage and has been constructive and co-operative through the stages of the bill—certainly with me. I genuinely appreciate her time and engagement and that of her officials and the wider bill team.
I continue to have some concerns about the stage 3 consideration process that we have just completed. The fact that an issue as significant as the status of registered foreign lawyers and multinational practices was left to the final day of the bill’s passage to be resolved is quite concerning and shocking. We are talking about the ability of some of the biggest law firms in the United Kingdom to operate in Scotland and about—as I said in my remarks on the amendments—thousands of jobs and tens of thousands of clients. The Law Society and others have been highlighting those issues for the two years since the bill was introduced. It is my understanding that, although the Law Society is the regulator and the body responsible for administering the legislation, there have not been detailed discussions with it on those matters preceding the correspondence that was issued last night, which I referred to earlier.
I believe that, ultimately, over the course of stages 2 and 3, the bill has been brought to a better place. It will provide tangible improvements to the legal system and legal services and much-needed additional protections to consumers and the public.
I am disappointed that the Conservatives will not join us in supporting the bill this evening, although I appreciate that they are speaking of their concerns about what it means for consumers. I point out to Tess White and others that an independent regulator is not being widely called for by people involved in the process, particularly the Faculty of Advocates, which I referred to earlier, but also the Law Society and others. If an independent regulator were answerable to the Lord President, I do not think that it would be an independent regulator. There is a challenge in the position that the Conservatives have arrived at. I believe that their previous position was to support the tenets of the bill and not to support an independent regulator.
I welcome the powers that I have worked on with the minister that have now been included in the bill. I highlight to the minister, however, that amendment 42 not passing and the related subsequent or previous amendments passing might cause some challenges in the legislation. It would be useful if, in a return to Parliament or in her summing up, she clarified how she intends to take that forward, given that it will be a challenge in the statute book. The post-legislative scrutiny would be a helpful vehicle to seek to deal with those issues. We need to understand what issues will remain in that space, and I hope that she will use the post-legislative scrutiny to do that.
I think that the bill will provide major, overdue regulatory changes for the benefit of consumers and practitioners alike. It will simplify a system that is too complex and will make proactive a system that is too reactive. Consequently, we will support the bill, as amended, this evening.
17:43
On behalf of the Scottish Greens, I welcome the bill and thank all those who helped to bring it—at last—to stage 3. I thank my committee colleagues, the clerks and all those who gave evidence, provided briefings and shared helpful conversations.
This has not always been an easy bill to navigate, but the progress that has been made and the co-operation that has been achieved between stakeholders, Government and Opposition represents a source of encouragement for the future.
The bill is, in many ways, a compromise, falling short of the radical reform that was called for in Esther Roberton’s report. It is nonetheless valuable and necessary for legal professionals and for those whose interests we, as Scottish Greens, are most concerned about—the people without wealth, power or privilege, for whom good legal services are too often out of reach. People typically need those legal services at some of the most stressful times in their lives—when they are moving home, setting up a business, dealing with bereavement or negotiating separation or divorce, or following accidents, work difficulties or involvement with the criminal justice system. Legal professionals who are skilled and sensitive, conscientious and good at communicating can make a huge difference to people’s lives by lifting burdens, solving problems and providing real support and representation when it is most needed.
Of course, the converse is also the case at times. When legal professionals are slow, careless, incompetent, extortionate or absent, transactions become problems, problems become crises and crises become catastrophes. If, in addition, the system that is supposed to address complaints and redress wrongs does not work efficiently, those difficulties are multiplied. If the system is slow, complex and mysterious, if it uses language that is alienating and even insulting, and if it does not seem to listen, the legacy of legal experience can be bitter indeed.
The bill sets out to reform and improve those systems, enabling them not only to intervene swiftly and fairly when things have already gone wrong but to act proactively to prevent the spread of bad practice and bad experience. What people want so much and so often is to know that the same thing will not happen to someone else.
Access not just to law but to justice is a key foundation of what we Greens believe in. That includes access to good legal services and to redress when they are not received. It also includes dimensions of justice that are not addressed by the bill but are of urgent importance.
One of those is simply access to legal services. For many people across Scotland, legal advice and representation on matters of the utmost gravity, such as their homes, livelihoods, children, safety and liberty, are simply not available, either because of cost barriers or geographical distance. Legal aid reform is long, long overdue.
Another is access to appropriate courts and remedies. An environmental court with specialist expertise and a problem-solving approach would save resources of all kinds—time and money, as well as biodiversity, precious green space and the wellbeing of our communities.
The human rights bill that we campaigned so passionately for would have opened up a route to remedy for violations of fundamental human rights of dignity, equality and respect. At a time when those rights for disabled people, transgender people and people who are seeking asylum and home are under unprecedented threat, access to justice matters desperately.
I welcome the bill, and we will vote for it at decision time this evening. I am grateful to all who have got us here, but we still have so much work to do. I urge us all to remember that, as we vote on the bill this evening, we are talking not only about law but about justice.
17:47
I noted the concerns that were expressed by Paul O’Kane earlier about the amount of time for which we have been considering the bill and debating it this afternoon. I observe that it is but a blink of the eye compared with where we found ourselves at the same time last week.
I join other members in thanking the committee and the minister for their work on this piece of legislation. I took part in the stage 1 debate, and it is fair to say that we have come a fair way since then.
The bill introduces many welcome reforms that are long overdue. The Law Society of Scotland fairly highlights that the legislation will act to modernise and reform regulatory systems, some of which have been in place for four decades or more.
I was a member of the Justice Committee when Esther Roberton published her review, which highlighted the lack of transparency, clarity and simplicity in the landscape of legal services regulation. Although the bill stops short of one of the review’s key recommendations for an entirely independent regulatory body, it nonetheless goes some way towards improving the accessibility and reliability of legal services, and it points to the issue of access to justice that Maggie Chapman raised.
The task faced by the minister and the committee was to find an appropriate compromise that does not diminish the principle of an independent and vigorous system of regulation but ensures that we do not tie the hands of regulators and practitioners in maintaining a system that is workable and flexible—and it was no small task. One area that prompted particular opposition and concern at the time was the inclusion of what felt like arbitrary and overreaching ministerial intervention in our legal services. It was regrettable that that pretty fundamental tenet of the legislation was left to amendment at stage 2.
I acknowledge the point that Paul O’Kane made, very reasonably, that the minister inherited the situation, and I think that she has done a power of good work in seeking to address the issues with the co-operation of the Equalities, Human Rights and Civil Justice Committee.
The bill that we are dealing with today is a very changed beast from the one that confronted us at stage 1. I commend the committee for its efforts, and the scrutiny of the bill has clearly been a collaborative endeavour. The amendments that Tess White successfully progressed today in relation to the 10-year review will serve us well; likewise, the amendments to toughen up the approach to unregulated legal services are a valuable addition to the bill.
The steps that have been taken on the basis of Paul O’Kane’s amendments to improve transparency are also very welcome, and I know that they have been welcomed by the Law Society of Scotland. They go some way to restoring public confidence in the accountability within the relevant systems.
As the minister suggested, this process was embarked upon back around 2010. There has been considerable effort, through the amending phases, to address concerns. However, referring to an observation that I made at stage 1, it has felt like the introduction of the bill was rather rushed, which is surprising, given how long the issues have been under consideration.
However, the work that has been done at stage 2 and at stage 3 today has left us in a much better place. The eventual legislation will take important steps to improve a system that for too long has failed to meet the needs of consumers or even many of those working in the sector—a system that was outdated and overly complex and, as we have heard, that repeatedly failed the public, many of whom found themselves in vulnerable positions when seeking recourse in the face of misconduct or wrongdoing.
The bill before us today better reflects the needs of a diverse and rapidly evolving legal services sector, and it builds much-needed transparency, accountability and protections into a system that must work to safeguard the interests of consumers. For that reason, Scottish Liberal Democrats will be voting in favour of the bill at decision time shortly.
I call on the minister to wind up the debate. You have a very generous four minutes, minister.
17:52
I will take a moment to reflect on the importance of the Regulation of Legal Services (Scotland) Bill and the hard work that has gone into bringing it to this point, which includes engagement with members across the Parliament. I thank everybody, including the many members who have spoken today, for all their engagement.
The bill is a significant step forward in ensuring that Scotland’s legal services are accessible, accountable and of the highest quality. The changes that we are debating today are about not just regulatory frameworks or the legal process, but the people of Scotland—the people who rely on legal services and the professionals who serve them.
We are crafting a legal services system that is robust and also flexible, transparent and equipped to meet the needs of a modern society. I am particularly pleased that we have been able to introduce changes that will enhance transparency for consumers, enhance access to justice and create a framework that fosters both public confidence and professional respect. The bill empowers the Lord President, bringing much-needed oversight, while ensuring that the legal profession in Scotland continues to uphold the high standards that it is known for.
I acknowledge that the bill is not the end of the journey but rather the beginning of an on-going process of refinement and improvement. We have created a foundation for a regulatory framework that can adapt to future changes, and it will be vital that we remain open to further improvement as the legal landscape evolves, including during the implementation of the eventual act by secondary legislation.
I am confident that, with this bill, we are setting Scotland’s legal services on a path to greater fairness, accessibility and accountability for years to come. Over the course of today’s debate we have heard a range of important contributions from members on this critical piece of proposed legislation, and I will take a moment to reflect on some of them.
First, I thank Scottish Labour, the Scottish Greens and the Scottish Lib Dems for all their engagement and for backing the bill today. I have to say, however, that I am really disappointed in the Scottish Conservatives for not supporting the bill at stage 3, and I am confused by their stance.
I think that consumer groups would be extremely concerned by Tess White stating that the independent regulator should be regulated by the head of the judiciary, the Lord President. For clarity, I note that Esther Roberton sought accountability outwith the judiciary. It is disappointing that the Scottish Conservatives do not appear to have a clear understanding of the history of all the work that has gone into the bill or of the asks of consumers or the legal profession. That is very sad.
I will reflect on a few other contributions. The lead committee recognised the differing views of the legal profession and consumer groups on the question of regulatory reform, as well as the fact that there is broad support for the improvements that will be introduced by the bill. As members will note, I have sought to work in a collaborative way with members and stakeholders, considering their concerns and making concessions where I consider that it is sensible. I believe that the bill provides balance and delivers key priorities to stakeholders.
Members have the opportunity today to vote on a bill that will reshape how legal services are delivered for, and experienced by, professionals and consumers alike. Our goal is clear: a legal services system that works for everyone. I therefore ask members to support the motion in my name and to pass the Regulation of Legal Services (Scotland) Bill.
I am aware that the minister is in her peroration, but I am keen to get some clarity on the issue of amendments that we debated, particularly those around safeguarding. She knows the significant issue that the Law Society of Scotland pointed to and which I raised in relation to matters such as conveyancing and there not being sufficient time to be able to finalise a house sale. Obviously, the Parliament agreed to amendments 34 and 38 but disagreed to amendment 42. It would be useful if she could put on the record her intention of how to deal with that, because there is a consequential lead-on from those amendments.
I thank Paul O’Kane for his question and for reminding me to get to that point, because I might have missed it.
There are consequences to amendment 42 not being agreed to. There will be no right of appeal to the Court of Session for sole solicitors or a sole solicitor business against a direction given by the Law Society of Scotland under proposed section 46A(4)(b) of the Solicitors (Scotland) Act 1980, which would have been inserted by section 86B(3). Contrast that with the right of appeal for a legal business regarding a direction under new section 46A(4) of the 1980 act.
Obviously, this has just happened, so I will have to take time to reflect. I will get back to members on the specific point in relation to amendment 42.
I ask members to support the motion in my name and to agree to the Regulation of Legal Services (Scotland) Bill.
That concludes the debate on the Regulation of Legal Services (Scotland) Bill at stage 3.