Chamber and committees

Amendments 347 to 355 will make changes to section 60, which is on disclosure of information by practitioners to the SLCC and relevant professional organisations. Section 60 will amend section 17 of the 2007 act, which allows the SLCC in certain circumstances to require a practitioner to produce documents, with the exception of documents that are subject to legal privilege, relating to the complaint. Despite that exception, amendments 347 and 350 will allow the disclosure of such documents by a practitioner with the client’s consent.

Section 48 of the 2007 act enables a relevant professional organisation in certain circumstances to require a practitioner to produce documents, with the exception of documents that are subject to legal privilege. Amendment 353 will not prevent disclosure of such documents where the client consents to their disclosure.

Amendments 348 and 354 will expand the definition of “documents” to make it clear that it includes references to anything in which information is recorded in any form, in order to provide the SLCC with additional scope to compel from a practitioner provision of relevant documents that might be helpful in determining a case.

Amendment 349 will introduce a power for the SLCC to uphold a services complaint where a practitioner has failed without reasonable excuse to comply with the requirement to provide information in relation to a complaint. In the stage 1 evidence sessions, the committee heard that around 300 solicitors a year do not reply on time to a statutory notice, which accounts for around a quarter of the complaints that are received. Although court orders are an option, they are not always effective, and there are recent examples of solicitors being held in contempt for failing to comply with a court order. Amendment 349 will enable the SLCC to proceed to determine a services complaint, in the event that a practitioner who is subject to a statutory notice to provide information or documents refuses or fails to do so within the specified time and without a reasonable excuse. The amendment will require the SLCC to notify the practitioner and their employer of their intention to determine the case, giving them at least 14 days to provide a reasonable explanation or the information. The SLCC may also draw an appropriate inference from the practitioner’s failure to provide the requested information or documents within the required time.

Amendment 351 is a minor technical amendment.

Amendment 352 will require a relevant professional organisation, where it issues a notice requiring the production or delivery of documents directly to the practitioner, to also send a copy of the notice to their employing practitioner, where that is relevant, in order to ensure that they are aware that the request is being made.

Amendment 355 will allow the relevant professional organisations to determine a conduct or regulatory complaint, in the event that a practitioner who is subject to a section 48(1) notice to provide information or documents refuses or fails to provide the information or documents within the specified time and without a reasonable excuse. The relevant professional organisation is required to notify the practitioner and their employer of their intention to determine the complaint. The notice of intention must give the practitioner at least 14 days, or such greater period as the relevant professional organisation considers appropriate, to provide a reasonable explanation, or the information, before the case is determined.

Amendments 357 to 361 will make changes to proposed new section 17A that the bill will insert in the 2007 act. That will enable the SLCC to obtain a practitioner’s contact details from the relevant professional organisation for certain purposes, where it considers it necessary to do so in relation to a complaint.

Amendment 357 will extend the SLCC’s powers to enable it to request contact details from the relevant professional organisation relating to the practitioner, practitioner’s firm, employing practitioner or persons holding a specified role, or exercising a specified function, in the practitioner’s firm or for the employing practitioner.

Amendment 358 will provide that relevant professional organisations must respond to a request under section 17(1) without delay, rather than “as soon as practicable”.?The SLCC requested that change in order to prevent delays in a complaint being progressed.

Amendments 359 and 360 will add assessment of the eligibility of a complaint to the list of purposes for which the SLCC can request practitioner’s details from relevant professional organisations in connection with complaints.

Amendment 361 will make it clear that the relevant professional organisation is required to provide the contact details of practitioners that they hold, whether or not those practitioners are authorised to provide legal services. The amendment addresses the issue, which the SLCC identified, of trying to track down practitioners who have stopped practising since the complaint was made.

?I appreciate the intention behind amendments 644, 645 and 650, which are in the name of Paul O’Kane, and which seek to ensure that regulatory bodies have sufficient powers to investigate complaints. I understand that the amendments are intended to provide that a relevant professional organisation may seek information prior to lodging a complaint. Such proactive regulation is, of course, important, but I consider that the bill already allows for that, so I view the amendments as unnecessary.

Section 67(3) of the bill, which will insert proposed new section 33A into the 2007 act, allows the Law Society, or any legal regulator, to raise a complaint in its own name without being required to first raise the complaint with the SLCC. The regulator has the power under section 48 of the 2007 act to require information that relates to investigation of the complaint.

Amendment 355, which is in my name, will allow the relevant professional organisation to determine a conduct or regulatory complaint in the event that a practitioner, who is subject to a section 48(1) notice, fails to provide the requested information or documents within the specified time and without reasonable excuse.?

Amendment 531, which is also in my name, will allow the Law Society to discontinue a conduct complaint where they consider that it is in the public interest to do so.

Those measures seek to ensure that the Law Society and other legal regulators have open to them the appropriate mechanisms to properly investigate complaints.??Proactive regulation, which is already enabled by the bill, allows issues to be identified early, which can prevent harm to consumers or the public. The authorisation of legal businesses allows the Law Society to identify and address deficiencies early and take the necessary preventative action. Although in-house solicitors are subject to the Law Society’s practice rules, they are also subject to an internal review of their performance and to annual appraisal by their employer.

I hold concerns that Paul O’Kane’s amendments, as drafted, are overly broad and unrestricted. The granting of pre-complaint investigatory powers is not unprecedented, but must be exercised proportionately in order to maintain trust and to avoid undermining those who are being regulated.? It is entirely inappropriate for the Law Society to have powers that might interfere with the prosecutorial independence of the Crown Office and Procurator Fiscal Service, and the Lord Advocate. That concern has been raised with the Law Society.?

For the reasons that I have set out, I am unable to support amendments 644, 645 and 650, so I ask Mr O’Kane not to press his amendments.?If they are pressed, I urge members not to support them. I ask members to support all my amendments in the group.

I move amendment 347.

I note the committee’s positive response to the introduction of the SLCC’s power to investigate complaints against unregulated legal services providers. As I set out in my response to the committee’s stage 1 report, a body’s presence on the register will not affect the SLCC’s ability to consider services complaints about it or its practitioners. The SLCC will be able to consider a services complaint against any unregulated legal services practitioner, regardless of whether they or their employer are on the register. That will provide new protection for consumers, given that will writing and confirmation services can be provided by unregulated providers.

The intention behind the existence of the register is to provide what we might call a kitemark to those providers who wish to join the scheme, in recognition that those legal services providers are part of a consumer redress scheme. That would allow consumers to make an informed choice when selecting legal services.

The Scottish Government has previously considered the question whether the register should be mandatory for all unregulated legal services providers, as outlined in Tess White’s amendments 646 to 649. However, it is considered that enforcing such a measure would present significant challenges and the proposals in the bill take a proportionate approach. As highlighted, the fact that the register is voluntary will not affect whether the SLCC can consider a complaint relating to a particular unregulated provider, or their employer, and an unregulated provider who is not registered could face a higher amount of the equivalent of the complaints levy. Therefore, rather than—

Absolutely. I take on board Maggie Chapman’s comments. I think that the message should be communicated with a high profile, to ensure that anyone who seeks legal advice is aware of the register. When we move on to stage 3, I would like to discuss how we could strengthen that aspect as well.

I return to my earlier points. Rather than agree to Tess White’s amendments 646 to 649, I ask members to support the approach that the bill takes to ensure that the regulation is proportionate, risk based and agile.

Turning to the other amendments in the group, the purpose of amendment 372 is to require, rather than to allow, the commission to create a register of unregulated legal services providers. The aim of this provision is to strengthen the position following the committee’s stage 1 recommendation to create a mandatory register of unregulated legal services providers.

Amendment 373 will require the commission to use its resources to fund the register and to

“investigate, determine and review services complaints against unregulated providers of legal services.”

Amendment 374 is a minor corrective amendment. Those amendments have been shared and agreed with the Scottish Legal Complaints Commission and they align with the committee’s previous recommendations.

I therefore ask members to support amendments 372 to 374 in my name.

I ask Tess White not to press amendment 646 and not to move amendments 647 to 649. If they are pressed, I ask members not to support them.

I agree with Ms White that post-legislative scrutiny is vital. On amendment 637, I am happy to continue to engage on a review mechanism. However, as Ms White stated, I retain concerns that the time period refers to royal assent rather than commencement. I will, of course, seek to swiftly commence the legislation if it is agreed by the Parliament, but the Scottish Government wishes to work collaboratively with stakeholders, as it has done throughout the progression of the reforms, to ensure that all the prerequisites are in place. To ensure that any review provides an accurate reflection and is more meaningful, I consider that basing the time period on commencement would present a stronger, more developed position. I urge Ms White not to press her amendment in the group. If she presses it, I urge members not to support it.

Amendments 452 and 453 are minor technical amendments to section 32 of the 1980 act. The effect of amendment 454 will be that section 33 of the 1980 act, which is entitled “Unqualified persons not entitled to fees, etc”, will continue to apply to law centres, citizens advice bodies and charities. I ask members to support the amendments in the group.

I move amendment 452.

Amendment 452 agreed to.

Amendments 453 and 454 moved—[Siobhian Brown]—and agreed to.

Section 81, as amended, agreed to.

Section 82—Offence of taking or using the title of lawyer

Amendment 455 moved—[Siobhian Brown]—and agreed to.

Section 82, as amended, agreed to.

Section 83—Offence of pretending to be a regulated legal services provider

Amendment 456 moved—[Siobhian Brown]—and agreed to.

Section 83, as amended, agreed to.

Section 84—Offence of pretending to be a member of Faculty of Advocates

Amendment 457 moved—[Siobhian Brown]—and agreed to.

Section 84, as amended, agreed to.

Section 85 agreed to.

Section 86—Power of the Scottish Ministers to adjust restricted legal services

Amendment 458 moved—[Siobhian Brown]—and agreed to.

Section 86, as amended, agreed to.

After section 86

Amendment 459 moved—[Siobhian Brown]—and agreed to.

I reaffirm what I said when amendment 638 was debated last week. Following engagement with Tess White, I am content to support the provisions in the amendment. We might have to revisit it at stage 3 to ensure that the revised provisions will work fully with the wider legislation, and I look forward to engaging with Tess White further on that. The Government is willing to support her amendment 638. Accordingly, I will withdraw amendment 508.

Amendment 638 agreed to.

Amendment 639 moved—[Paul O’Kane]—and agreed to.

Section 87—Modification of other enactments

Amendment 460 moved—[Siobhian Brown]—and agreed to.

Section 87, as amended, agreed to.

Schedule 3—Minor and consequential modifications of enactments

Amendments 461 to 467 moved—[Siobhian Brown]—and agreed to.

I assure Ms Chapman that I will be very happy to discuss that further in advance of stage 3.

Amendment 468 agreed to.

Amendments 469 to 472 moved—[Siobhian Brown]—and agreed to.

Paul O’Kane’s amendments in the group would place back in statute a requirement for the SLCC to determine whether a complaint was

“frivolous, vexatious or without merit”

before it could investigate a complaint. Placing in statute the eligibility process can make the process more time consuming for both the complainer and the legal practitioner, and it can have the effect of delaying a clearly serious complaint from being investigated swiftly, as the SLCC must proceed through the initial statutory stages or tests of assessing the complaint before an investigation can commence.

All that takes place simply to assess whether a case can be accepted by the SLCC as a complaint to be looked at—something that, in many complaints bodies, is a low-level administrative decision. As a comparison, in England and Wales, under the Legal Services Act 2007, the legal ombudsman is simply required, in relation to a complaint, to determine

“in the opinion of the ombudsman making the determination”

what is

“fair and reasonable in all the circumstances of the case.”

The bill retains categorisation of conduct and service complaints, as that determines who will investigate the matter. The bill will also allow the SLCC to consider whether a complaint is not eligible, according to rules that it sets, or has been made prematurely, and it will provide greater flexibility to the SLCC to make rules about complaints that are considered to be frivolous, vexatious or without merit. That approach is supported by the SLCC, and it will allow for a more proportionate and swifter consideration of legal complaints, including whether they are frivolous, vexatious or without merit. Ensuring that eligibility decisions involve a quick sift is essential in providing a prompt resolution that benefits both consumers and practitioners.

Amendment 316, in my name, is a consequential amendment in the light of other changes being made to the bill. It removes section 4(4)(b) of the 2007 act as a consequence of the removal of section 2(4) of that act, which prescribes the preliminary steps to be taken by the SLCC in making an eligibility decision.

The improvements that are proposed in the bill and in my amendments would allow the SLCC to operate a flexible and agile complaints process that allowed a proportionate approach to be taken to different types of complaint.

Yes.

I will come to that further along, but as I said when we debated the previous group, the SLCC will have to go to consultation with the Lord President, Scottish ministers and consumer panels on the process that will be set up.

One of the main points is that the provision will also give the SLCC flexibility in future. As we saw at last week’s meeting, a lot of amendments and groups were about strengthening the legal process, but as the committee has acknowledged in its recommendations, we must also ensure that the voice of the consumer is not lost, and we need to simplify the process for their access to justice. Therefore, there will be no lessening of the SLCC’s requirements in that respect. Furthermore, the SLCC has a duty to exercise its decision-making functions, in accordance with administrative law principles, including around the notification of decisions.

In making or varying these rules, the SLCC will be required to consult the Lord President, the professional bodies, the consumer panel, other consumer groups and groups that represent the interests of the legal profession. The SLCC will also need to publish the rules. I note Mr O’Kane’s concerns that, in the future, the SLCC could decide not to publish the reasoning behind its decisions. That would have to go to consultation with the Lord President and all the legal professional bodies as well, and I consider that that provides sufficient checks to ensure that the committee’s concerns would be addressed.

Amendment 572 proposes to reintroduce prescriptive provision into the legislation, which risks the improvements in the bill that would deliver efficiencies. The SLCC is supportive of the Scottish Government’s approach. I therefore ask members not to support Mr O’Kane’s amendment 572.