Chamber and committees

It is guidance on the various options for how voting procedures should be carried out when dealing with factors.

I appreciate the petitioner’s comments and his experience, but it is quite rare that this has happened with factors. However, we need to ensure that a process is in place for anybody who wants to remove a factor. Usually, that is in the title deeds, so it would be unusual if that was not in place.

Moving forward, if someone feels intimidated because they have to get legal advice or go through the court process, I think that they should feel supported through our guidance. My officials might want to come in with something further here.

The Scottish Government welcomes the CMA’s report and is grateful for its engagement with officials and the Scottish market in its investigation. It is a substantial report. Ministers and officials are considering the recommendations and will respond fully in due course. The suite of recommendations extends over a few ministerial portfolios and the impact of each recommendation needs to be considered in the wider context.

I understand that the Minister for Housing considers that it would be useful, while examining the findings and the recommendations of the CMA, to add more voices to the discussion, and he might include them in the proposed round-table session with property factors. It is under consideration.

That has not been made clear to me, but, as I said, the Minister for Housing is looking into it. We can perhaps write to the committee on that.

I am not aware of that number; I do not know whether any of my officials have it. We might have to write back to the committee with those details.

Yes, absolutely. One of the things that I can do, which I take away from this evidence session, is to speak with the Minister for Housing, because if he is going to have a round-table session to examine the recommendations from the CMA report, that consideration could be intertwined with that.

I will pass over to Jill Clark, who has been involved in the design of it.

The first selection of my amendments in this group will amend section 35, new section 36A and section 40 of the 2007 act. New section 36A, as inserted by the bill, allows the SLCC to issue guidance to relevant professional organisations about how they are to investigate and determine conduct and regulatory complaints.

Amendment 397 introduces a requirement on the SLCC to consult the Lord President, relevant professional organisations, practitioners regulated by each organisation and any other persons whom the SLCC believes are appropriate before producing guidance that sets minimum standards. That responds to legal stakeholders’ views.

Amendment 396 amends section 35 of the 2007 act to enable the SLCC to notify the relevant professional organisation of a concern, if, in the course of exercising its functions, such as monitoring practices and trends, it identifies a matter of concern relating to how practitioners or a practitioner’s firm or employing practitioners deal with complaints.

Amendment 400 places an additional duty on the SLCC in respect of publishing any guidance that sets minimum standards by requiring them to publish a document summarising the consultation, any representations received and any changes made to the minimum standards as a result of the consultation, and the reasons for including the minimum standards in the guidance.

Taken together, amendments 401 and 403 allow the SLCC to issue guidance to relevant professional organisations relating to the standards that such organisations must set for practitioners in rules relating to how to deal with complaints. That replaces the current provision to set minimum standards directly for practitioners. Those changes address the Law Society’s concerns and will require oversight by the Lord President, as the Lord President’s approval of any rules for practitioners is required before they can take effect.

Amendment 416 expands the range of consultees that the SLCC must consult in relation to any initial proposals for minimum standards to be set out in guidance, mirroring the requirements in respect of the proposed guidance on dealing with complaints.

Amendment 420 inserts new subsections into proposed new section 40A of the 2007 act, which relates to the enforcement of minimum standards. The new subsections (10A) and (10B) will enable the court to provide that the relevant professional organisation is not required to comply with some of the steps that are specified in the direction where the court considers that taking those steps would have a detrimental effect on the ability of the relevant professional organisation to comply with its regulatory objectives.

Amendment 421 removes provision on enforcement of minimum standards in relation to practitioners because other amendments have removed the power of the commission to be able to set minimum standards directly on legal practitioners.

Amendment 422 will provide the SLCC with the powers to request additional details from legal professionals to aid with monitoring trends and practices in the profession by enabling them to request information from the practitioner about complaints that they received during the three-year period before the request was made. The information requested must be for the purpose of monitoring practice and identifying trends or the issuing of guidance. The provision lists examples of the type of information that can be sought.

Amendment 419 expands on the publishing requirement that requires the commission to, at the time of publishing any guidance that creates minimum standards in relation to the client protection fund, publish a document summarising the consultation carried out, any representations received in response to the consultation, any changes made to the commission’s initial proposals for the minimum standards as a result of the consultation and the commission’s reasons for including the minimum standards in the guidance.

Amendments 395, 398, 399, 402, 404 to 411, 414, 415, 417, 418 and 537 are consequential to the substantive amendments in the group or are minor technical and tidying-up amendments.

I urge members to support the amendments in this group.

I move amendment 395.

Amendment 395 agreed to.

Amendments 396 to 411 moved—[Siobhian Brown]—and agreed to.

Section 69, as amended, agreed to.

Section 70—Compensation funds: setting of minimum standards by the Commission

Amendments 412 to 419 moved—[Siobhian Brown]—and agreed to.

Section 70, as amended, agreed to.

Section 71—Enforcement of minimum standards

Amendments 420 and 421 moved—[Siobhian Brown]—and agreed to.

Section 71, as amended, agreed to.

After section 71

Amendment 422 moved—[Siobhian Brown]—and agreed to.

Amendments 533 and 534 moved—[Marie McNair]—and agreed to.

Amendment 535 moved—[Siobhian Brown]—and agreed to.

Amendment 536 moved—[Siobhian Brown].

Good morning, convener and committee members. The first set of amendments in the group relates to the Scottish Legal Complaints Commission and is the outcome of extensive engagement with the SLCC, with the content of the amendments having been agreed.

Amendment 312 and consequential amendments 438, 467, 499 and 523 remove the provisions in the bill that would have removed the word “Complaints” from the name of the Scottish Legal Complaints Commission. Following engagement with stakeholders, including the SLCC, and reflecting the committee’s recommendations, we acknowledge that our original intention to refer to the “Scottish Legal Services Commission” could be misleading for members of the public seeking to make a complaint about the legal profession.

Amendments 335 and 336 seek to make improvements to the complaints process by setting out what decision-making and delegation powers will be available to the Scottish Legal Complaints Commission. They are also the outcome of extensive engagement with the commission, with their content having been agreed.

Amendment 335 allows the commission to delegate a decision under new section 2A(1) of the Legal Profession and Legal Aid (Scotland) Act 2007, as inserted by amendment 315, to initiate a complaint in its own name only to one of its committees or to one of the commission’s members.?

Amendment 336 allows any member of the commission to take a decision on the disclosure of information under section 41A, which is the power for the SLCC to disclose information relating to complaints, where authorised to do so by the SLCC, which—if agreed to—will be introduced by amendment 533, in the name of Stuart McMillan, in group 18.

Amendment 339 reflects discussions with the SLCC and removes the ability to review a decision that a complaint is eligible to be progressed by the SLCC. There will be other opportunities for a complaints decision to be reviewed, and complaints that are deemed ineligible will remain eligible for review following the decision. ?Amendment 339 seeks to find a balance between allowing important decisions to be reviewed while also streamlining the complaints process. Amendment 345 is consequential to that change.

???Amendment 341 allows for a decision by the SLCC not to initiate the investigation of a services complaint or to close a case following a reasonable settlement offer from the practitioner to be a decision that is capable of being reviewed under new section 20A of the 2007 act. Amendment 346 is a consequential change.

Amendments 337, 340 and 342 to 344 are minor technical amendments.

Amendments 439 to 441 introduce flexibility into the membership of the SLCC board by allowing a minimum number of both lay and legal members, following concerns from the SLCC that it would be difficult for the board to maintain the non-lawyer majority if equal numbers of lay and legal members were required and the absence of a single non-lawyer member could make the board inquorate.??These amendments set out the minimum number of lay and legal members rather than requiring a set number for each.

Amendment 439 sets out that the membership of the SLCC’s board must be made up of at least eight but no more than 20 members in addition to the chair. Amendment 440 requires that the chair and at least four other members must be lay members. Amendment 441 provides that there must be at least three lawyer members.

Amendment 538 removes the requirement that the lawyer members of the SLCC’s board must have at least 10 years’ experience in any of the specified legal categories. Following discussions with the SLCC, that requirement was considered to be overly restrictive, preventing good candidates from being appointed. Therefore, amendment 538 provides additional flexibility regarding board appointments. Members are appointed only after consultation with the Lord President, in accordance with paragraph 2 of schedule 1 to the 2007 act. ?In addition, amendment 538 provides that there must be more non-lawyer members than lawyer members, but that difference must be no more than three.

Amendments 443 and 444 set out that each member of the SLCC board can be appointed for a period of not less than five years and not exceeding eight years, in keeping with the “Code of Practice for Ministerial Appointments to Public Bodies in Scotland”, which allows for a maximum period of appointment, including reappointment, of eight years.

Amendment 446 adds the consumer panel to the list of mandatory consultees where the Scottish ministers propose to make regulations to amend the powers or duties of the commission. Amendment 448 will expand the functions of the panel to include making recommendations to the Lord President regarding any of the Lord President’s functions under the bill. Amendments 445 and 447 are consequential.

I am happy to have worked with Maggie Chapman on amendments 539 and 540, which require the consumer panel to be adequately funded and resourced in order to effectively discharge its functions. The Scottish Government’s expectation is for the SLCC to have the capacity to fund the consumer panel’s extended remit as it deems appropriate, including the possibility of implementing an additional levy on the regulated profession. I therefore ask members to support all the amendments in the group.

I move amendment 312.

The amendments in this group seek to amend the Solicitors (Scotland) Act 1980 to bring clarity to the Law Society’s role in the investigation of conduct and regulatory complaints.

Amendment 468, which relates to conduct complaints, will do a number of things. It makes the necessary consequential and procedural changes following the bill’s introduction of a new power to allow the Law Society to initiate conduct complaints and investigate them without being required to first remit them to the SLCC. It will provide the Law Society with powers when investigating and determining conduct complaints, such as the ability to propose or accept a settlement in respect of a complaint and the ability to discontinue an investigation or reinstate a discontinued investigation. The amendment will provide avenues of appeal to the SSDT and, subsequently, to the court on those decisions.

The amendment will provide measures that may be taken by the Law Society if it makes a determination upholding a conduct complaint. Those measures include censure and the imposition of a fine or of conditions on a solicitor’s practising certificate.

The amendment will also make the system for conduct complaints more efficient, saving time and resources. The Law Society currently investigates complaints about “unsatisfactory professional conduct”, while the most serious complaints of?“professional misconduct” are prosecuted before the SSDT. In cases?where the SSDT?is satisfied that the solicitor is not guilty of misconduct, it can decide that the solicitor is, however, guilty of the lesser matter of unsatisfactory professional conduct. In such cases, it is required to refer the complaint about UPC to the Law Society.? Amendment 468 will give the SSDT a new power to deal with complaints about unsatisfactory professional conduct that arise from an initial complaint of?professional misconduct.

Amendment 469 makes provision in respect of regulatory complaints and mirrors the conduct complaints provisions in amendment 468. It will introduce the ability for an authorised legal business or a licensed provider to appeal to the tribunal against a decision by the Law Society to uphold a regulatory complaint. The decision of the SSDT will also be appealable to the court.

It is important that the Law Society, in its role as a category 1 regulator, can consider and determine regulatory complaints without being overly prescriptive about how such complaints will be processed, and that should be provided for in the practice rules. Amendment 470 will therefore require the?Law Society to make rules about the procedures for making decisions in relation to complaints. Those rules must have the approval of the Law Society and they will not have effect unless they are approved by the Lord President.

Amendment 472 will make related modifications to the 1980 act, including requiring the Law Society to consult the commission before making any rule relating to the society’s functions under the 2007 act.

Amendment 478 will make consequential changes relating to conduct complaints to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Those changes mirror the changes that will be made to the 1980 act by amendment 468, in so far as they relate to conveyancing and executry practitioners.

I ask members to support the amendments in the group. I move amendment 468.