Chamber and committees

I wish to confirm that the provision will not affect the ability of the Scottish Legal Complaints Commission’s consumer panel or Consumer Scotland to request a review.

Amendment 2 agreed to.

Section 20—Measures open to the Scottish Ministers

When I agreed at stage 2 to support Tess White’s amendment in respect of safeguarding the interests of clients, I said that I would revisit the provisions at stage 3 to ensure that they worked fully with the wider legislation and that I would make any adjustments that were necessary to reflect the wider policy intention.

Given the implications for practitioners, and following consideration of a query from the senior judiciary, I have lodged amendments 34 and 42, which would provide an appeal mechanism on the 14-day appeal timescale and would make the appeal final. That would allow directions to be appealed before the court in a timely manner, as the power is wide and can affect a variety of persons. An appeal on a genuinely urgent matter may be expedited by the court to avoid delay.

Regarding the Law Society’s concerns about what amendments 38 and 42 would require from a business that is being wound down, perhaps due to a solicitor retiring, I do not consider that the duties that would flow from that would be unreasonable. The right for the client accounts to vest in the Law Society would apply only in relation to a practitioner who had been disqualified and would therefore not create undue requirements.

The other duties that are set out in amendment 42 are to prepare interim accounts that would, in particular, detail all sums held on behalf of clients, and to send a copy of those accounts to the Law Society. In the case of the orderly winding down of a business, that would be straightforward and would involve notifying clients of the intention to cease practice and of the powers that the Law Society has to safeguard clients and, finally, satisfying the Law Society that it had complied with the requirements to inform clients.

I ask members to support my amendments.

Amendment 31 agreed to.

I am pleased to have worked with Tess White on her amendment 137, which will require the Scottish ministers to undertake a review of the principal changes to the regulation of legal services arising from the legislation. I am grateful to Ms White for taking on board my concerns, and I am content to support the amendment.

Amendment 75 replaces with a regulation-making power the Scottish ministers’ order-making power to increase the maximum amount that the SSDT can fine a solicitor in certain circumstances, which was inserted at stage 2. That reflects modern practice and is consistent with other ministerial regulation-making powers provided by the bill.

Amendment 82 restricts the SSDT from publishing any information that identifies or is likely to identify any person other than the solicitor against whom the complaint was made, unless it is considered to be in the public interest to do so and that person consents. That mirrors the approach taken in relation to the disclosure of information about complaints by the Scottish Legal Complaints Commission and relevant professional organisations, and it provides the SSDT with additional flexibility in relation to publishing information about cases.

The bill currently makes provision allowing the SSDT to take decisions and determinations relating to previous complaints into account when deciding whether a solicitor has been guilty of unsatisfactory professional conduct. The SSDT considers that that is inappropriate. Amendment 69 allows the SSDT to instead take into account decisions and determinations in respect of previous complaints when it is deciding whether the censure of a solicitor is to have effect for a specified period only and whether to direct the solicitor to pay a fine or undertake training or to order their practising certificate to be subject to certain conditions.

Amendment 74 makes a broadly equivalent amendment in respect of the powers of the SSDT on appeal.

Amendments 68, 70 to 73, 76, 77, 80 and 81 make minor changes to tidy up provisions following changes made at stage 2.

The bill amends the 1980 act to enable the Law Society to appeal to the Court of Session against decisions of the SSDT to dismiss a complaint without inquiry. Amendments 78, 79 and 107 move those provisions from schedule 4 to the 1980 act into a new section.

Presiding Officer, there is an error in amendment 78, which should refer to leaving out line 22 on page 149 of the bill, rather than line 23. With your agreement, I have lodged a manuscript amendment, amendment 78A, to correct that error.

I ask members to support the amendments in my name.

I move amendment 68.

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.

No, thank you, Presiding Officer.

Amendment 68 agreed to.

Amendments 69 to 77 moved—[Siobhian Brown]—and agreed to.

Amendment 78 moved—[Siobhian Brown].

Amendment 78A moved—[Siobhian Brown]—and agreed to.

Amendment 78, as amended, agreed to.

Amendments 79 to 89 moved—[Siobhian Brown]—and agreed to.

Amendments 139 to 141 not moved.

Amendment 142 moved—[Tess White]—and agreed to.

Amendment 90 moved—[Paul O’Kane]—and agreed to.

Amendment 91 moved—[Siobhian Brown].

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.

I am. I think that adopting the text that the Law Society has provided and putting it in the explanatory notes will ensure that that will be done. As I said earlier, Paul O’Kane’s amendments could have unintended consequences.

I therefore ask Mr O’Kane not to press amendment 117 and not to move his other amendments in the group, with the exception of amendments 123 and 126. If amendment 117 is pressed or if any of the other amendments is moved, I urge members to oppose it. I ask members to support my amendment 1 and Mr O’Kane’s amendments 123 and 126.

I will begin by speaking to my own amendment 1 before moving to those lodged by Paul O’Kane.

The Law Society of Scotland has asked for clarification of registered foreign lawyers being included among the “qualifying individuals” as defined in section 39 of the bill.

At stage 2, I agreed to correct and strengthen the explanatory notes to make it clear that registered foreign lawyers are included as “qualifying individuals” as they exist at present and to make it clear that part 2 of the bill, on the regulation of legal businesses, does not change the basis on which existing individual rights to practise are still required by the existing underlying legislation. That will be done in the explanatory notes to the act if the Parliament agrees to pass the bill today.

I confirm that I have engaged extensively with the Law Society of Scotland. I wrote to it last night, outlining the position and confirming that I am happy to adopt its suggested wording in the explanatory notes. In particular, registered foreign lawyers will still be required to work with other solicitors in Scotland in order to practise where that is already provided for in the existing legislation. The new regime in part 2 of the bill will not change that.

My amendment 1 will define “legal business” in section 18 by reference to the definition of that term in section 39(2) in order to make the definition consistent in the bill. That will provide additional clarification in the bill’s provision on professional indemnity insurance. The effect will be similar to that of Paul O’Kane’s amendment 119, but my amendment 1 means that amendment 119 is unnecessary, as defining “legal business” by reference to the definition of that term in section 39(2) also draws in the definition of “qualifying individual” as set out in section 39(8).

Although I recognise the intention behind Paul O’Kane’s wider amendments in the group—amendments 117 to 122 and 138, which have been developed by the Law Society—we consider that they would have unintended consequences. In particular, they would in some ways rule out use of the structures in part 2 of the bill, which will otherwise cater for those types of lawyers and allow them to be brought in as qualifying individuals if they are made licensed providers or if the other rules that govern them are changed.

On that basis, Mr O’Kane’s amendments are unnecessary, and they would be problematic in some respects as they would specifically refer to “registered European lawyers” and “registered foreign lawyers”, rather than their being included under “qualifying individuals” in the bill. The amendments would provide less future proofing to implement the legal structures in the bill.

Amendments 124 and 125 would delete section 44(1)(e), which sets out that practice rules are to include rules about

“the making and handling of any complaint about an authorised legal business”.

I consider that, given the provisions that will allow the Scottish Legal Complaints Commission to make minimum standards for complaints handling in consultation with the profession and the Lord President, it is important that section 44(1)(e) remains as a mechanism to apply those standards.

After careful consideration of amendments 123 and 126, I am content to support them.

I therefore ask Mr O’Kane not to press amendment 117 and not to move his other amendments in the group, with the exception of amendments 123 and 126. If amendment 117 is pressed—

I thank all members and stakeholders for their constructive engagement in respect of the bill. I understand that Paul O’Kane has lodged his amendments in this group on behalf of the Law Society of Scotland.

I consider that amendment 116 is not necessary, as the bill already provides that the establishment and management of a compensation fund is a regulatory function of the Law Society as a category 1 regulator. That is because section 7 of the bill, which provides that “regulatory functions” include “complying with the requirements” under the bill, is to be read with section 14, which places a requirement on the Law Society to “establish and maintain” a compensation fund. It is clear from section 14 that a category 1 regulator “must establish and maintain” a compensation fund. That requirement is then caught by the definition of “regulatory functions” in section 7.

Amendments 129 and 139 to 141 would make provision to restrict conduct complaints that are brought against solicitors in relation to them discharging regulatory functions. The Law Society raised that matter with the Scottish Government following stage 2. Although I appreciate and understand the concerns that were raised, I consider that amendment 531, which was agreed to at stage 2, will give all relevant professional organisations the flexibility to discontinue a conduct complaint that has been remitted to it if the relevant professional organisation considers that it is in the public interest to do so. It provides a route to address the concerns that are raised.

As Mr O’Kane alluded to at the start of his speech, there are competing views, and, as we know, there is a history with this bill of trying to find a balance for both sides. Given the SLCC briefing that has been sent to members, I will continue to engage with the Law Society to monitor the operation of the new provisions. I consider that the matter would benefit from further consultation and consideration. I therefore ask Mr O’Kane not to press or move his amendments in the group. If he does so, I urge members to oppose his amendments.