Chamber and committees

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.

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.

I thank Mr O’Kane for his comments. As I have always said, my door is open as we move to stage 3. I acknowledge what he said about the chicken-and-egg situation. I reiterate that section 67(3) will allow the Law Society or any other legal regulator to raise a complaint in its own name if it wishes something to be investigated, but I am happy to work with Mr O’Kane.

Amendment 347 agreed to.

Amendments 348 to 352 moved—[Siobhian Brown]—and agreed to.

Amendments 644 and 645 not moved.

Amendments 353 to 355 moved—[Siobhian Brown]—and agreed to.

Section 60, as amended, agreed to.

Section 61—Power of Commission to request practitioner’s details in connection with complaints

Amendments 356 to 361 moved—[Siobhian Brown]—and agreed to.

Section 61, as amended, agreed to.

Section 62—Services complaints: special provision for complaints against unregulated persons

Amendment 527 moved—[Marie McNair]—and agreed to.

Section 62, as amended, agreed to.

Section 63—Handling complaints

Amendments 362 to 369 moved—[Siobhian Brown]—and agreed to.

Section 63, as amended, agreed to.

Section 64—Annual general levy and complaints levy

Amendments 370 and 371 moved—[Siobhian Brown]—and agreed to.

Section 64, as amended, agreed to.

Section 65—Unregulated providers of legal services: voluntary register, annual contributions and complaints contributions

The policy intention behind my amendments in this group is to create clear rules for the SLCC when investigating a handling complaint. The rules will be available to relevant professional organisations and consumers, which will increase the transparency of the complaints process.

Amendments 376 to 378, 380, 383 and 384 all make changes relating to the rules about the SLCC’s practice and procedure in dealing with complaints, including altering what such rules must include provision about.

Amendments 375, 385 and 528 are minor and technical tidying-up amendments, and amendments 379 and 382 are consequential.

The SLCC supports the amendments in the group. I therefore urge the committee to support the amendments.

I move amendment 528.

Amendment 528 agreed to.

Amendments 375 to 385 moved—[Siobhian Brown]—and agreed to.

Section 66, as amended, agreed to.

Section 67—Conduct or regulatory complaint raised by relevant professional organisation

Amendments 386 to 390 and 529 moved—[Siobhian Brown]—and agreed to.

Section 67, as amended, agreed to.

After section 67

Amendment 530 moved—[Siobhian Brown]—and agreed to.

Section 68—Conduct complaints: consideration by relevant professional organisations

Amendments 531, 392 to 394 and 532 moved—[Siobhian Brown]—and agreed to.

Section 68, as amended, agreed to.

Amendments 322, 324 to 329 and 525 will amend new section 52B, on “Regulatory complaints: duty of regulator to investigate etc”, which the bill will insert into the Legal Profession and Legal Aid (Scotland) Act 2007.

Amendment 525 will allow, subject to notification requirements, relevant professional organisations to make a decision to discontinue an investigation of regulatory complaint or to reinstate the investigation of a discontinued regulatory complaint, but only if the organisation considers that it is in the public interest to do so. Amendments 322, 323, 325, 329, 386 and 387 will make minor technical corrective changes.

Amendments 324, 326 and 327 will place additional requirements on relevant professional organisations in respect of what they must include in their report of the determination.

Amendment 328 requires relevant professional organisations, in considering what action to take, if any, to take into account any decision taken by the SLCC in respect of a services complaint against the practitioner where that complaint arises from the same matter to which the regulatory complaint relates.

Those amendments are the outcome of engagement between the Law Society of Scotland and the Scottish Legal Complaints Commission.

Amendments 388 and 390 will alter new sections 33A and 33B of the 2007 act, as inserted by the bill. The new sections allow relevant professional organisations to investigate conduct or regulatory complaints arising from their regulatory monitoring without first sending them to the SLCC. The amendments require the relevant professional organisation, in either a conduct complaint case or a regulatory complaint case, to be satisfied that, if the matter were referred to the SLCC, it would be considered by the SLCC to be either an eligible conduct complaint or an eligible regulatory complaint, respectively.???Amendment 389 is a technical amendment that is consequential to amendment 390.

Amendment 529 inserts new section 33C into the 2007 act, allowing relevant professional organisations to recategorise a conduct or regulatory complaint, subject to notifying the commission.

Amendment 530 amends section 33 of the 2007 act. It outlines what actions relevant professional organisations should take where it becomes apparent that a complaint may have been wrongly categorised as either regulatory or conduct during the investigation of that complaint or during the mediation process, and that it should instead be a services complaint. Where that happens, the amendment requires relevant professional organisations to suspend the investigation, consult the SLCC on the matter and send over the relevant material to allow the SLCC to take over the complaint. In addition, the relevant professional organisation must inform the complainer and the practitioner that the complaint will now be led by the SLCC.

Amendment 531 will give all relevant professional organisations the flexibility, subject to notification requirements, to discontinue a conduct complaint remitted to it or to reinstate a discontinued conduct complaint, but only if the relevant professional organisation considers it to be in the public interest to do so.

Amendment 393 will have the effect of requiring the relevant professional organisation, after investigating a conduct complaint, to make a written report to the complainer, the practitioner and the SLCC on any facts of the matter found by the organisation and on what action the organisation proposes to take, if any. If the organisation does not propose to take or has not taken any action in the matter, an explanation of why that is the case must be outlined in the report.???Amendment 392 is a consequential change.

Amendment 394 adds to section 47 of the 2007 act a requirement to the relevant professional organisation, in considering what action to take, if any, to take into account any decision taken by the SLCC in respect of a services complaint against the practitioner where that services complaint arises from the same matter to which the conduct complaint relates.

Amendment 532 is consequential and leaves out section 68(3) of the bill, which would have inserted new section 52A into the 2007 act in order to adopt the same approach as that taken in relation to regulatory complaints and new section 52B of the 2007 act, as amended by amendment 328.

Amendment 425 removes the provisions excluding the power of the Scottish Solicitors’ Disciplinary Tribunal to act where a solicitor or legal business has been convicted of economic crime. The Economic Crime and Corporate Transparency Act 2023 creates an exception for an economic crime offence, because it was considered to be more of a deterrent if a solicitor could be fined by the SSDT, even after having served a jail sentence. The policy intention here is that the same deterrent of an unlimited fine should apply across the board and that the special provisions relating to economic crime are unnecessary. It is, of course, a matter for the SSDT to take account of the facts and circumstances in each case in the exercise of its powers.

Amendment 428 outlines that, where the solicitor has been convicted of a criminal offence in relation to the subject matter of the SSDT’s inquiry, the SSDT must, when deciding whether to exercise a power under section 53(2) of the Solicitors (Scotland) Act 1980, have regard to the conviction.??The amendment also removes other amendments to section 53 of the 1980 act, on SSDT powers, made by the Economic Crime and Corporate Transparency Act 2023.

Amendment 435 provides the Court of Session with the power to create an unlimited for solicitors or authorised legal businesses in relation to conduct complaints.

Amendments 423, 424, 426, 427, 429 to 434, 436 and 437 are all minor and technical amendments to the 1980 Act.

I urge the committee to support all the amendments in this group, and I move amendment 525.

Amendment 525 agreed to.

Amendments 322 to 330 moved—[Siobhian Brown]—and agreed to.

Section 55, as amended, agreed to.

Section 56—Services complaint: sanctions

Amendments 331 to 334 moved—[Siobhian Brown]—and agreed to.

Section 56, as amended, agreed to.

Section 57—Commission decision making and delegation

I thank Mr O’Kane for his comments. As I have always said, my door is open as we move to stage 3. I acknowledge what he said about the chicken-and-egg situation. I reiterate that section 67(3) will allow the Law Society or any other legal regulator to raise a complaint in its own name if it wishes something to be investigated, but I am happy to work with Mr O’Kane.

Amendment 347 agreed to.

Amendments 348 to 352 moved—[Siobhian Brown]—and agreed to.

Amendments 644 and 645 not moved.

Amendments 353 to 355 moved—[Siobhian Brown]—and agreed to.

Section 60, as amended, agreed to.

Section 61—Power of Commission to request practitioner’s details in connection with complaints

Amendments 356 to 361 moved—[Siobhian Brown]—and agreed to.

Section 61, as amended, agreed to.

Section 62—Services complaints: special provision for complaints against unregulated persons

Amendment 527 moved—[Marie McNair]—and agreed to.

Section 62, as amended, agreed to.

Section 63—Handling complaints

Amendments 362 to 369 moved—[Siobhian Brown]—and agreed to.

Section 63, as amended, agreed to.

Section 64—Annual general levy and complaints levy

Amendments 370 and 371 moved—[Siobhian Brown]—and agreed to.

Section 64, as amended, agreed to.

Section 65—Unregulated providers of legal services: voluntary register, annual contributions and complaints contributions

Amendment 503 provides that, where a solicitor holds a practising certificate subject to conditions, they must give the Law Society six weeks’ notice of their intention to apply for a practising certificate. The Law Society will then have discretion to grant or refuse the application, or to issue a certificate subject to conditions. Those conditions can be varied or removed, or further conditions imposed, after giving the solicitor the opportunity to make representations. Failure to comply with a condition may be treated as professional misconduct or unsatisfactory professional conduct on the part of the solicitor.

In addition, amendment 503 will insert proposed new section 15A into the 1980 act to give the Law Society similar discretion at any time to vary, remove or impose any conditions in relation to a practising certificate in other cases where they consider it to be in the public interest to do so, or for the protection of the public. Similarly, failure to comply may result in a finding of professional misconduct or unsatisfactory professional conduct. The changes will also help to protect those who use legal services by strengthening the Law Society’s ability to suspend a solicitor’s practising certificate in cases where it considers it necessary to do so in the public interest, or for the protection of the public.

Amendment 504 will introduce a new power for the Law Society, where a solicitor has been suspended for charging excessive fees, to terminate their suspension on its own initiative, and amendment 505 will introduce a similar new power where a solicitor has been suspended for failure to comply with accounts rules.

As we come to the end of stage 2, I want to thank members for their consideration and engagement thus far. I want to move swiftly to stage 3, so my door remains open to members who wish to discuss the bill ahead of the final stage.

I ask members to support the amendments in the group.

I move amendment 503.

Amendment 503 agreed to.

Amendments 504 to 507 moved—[Siobhian Brown]—and agreed to.

Amendment 508 not moved.

Amendments 509 to 520 moved—[Siobhian Brown]—and agreed to.

Schedule 3, as amended, agreed to.

Sections 88 and 89 agreed to.

Section 90—Ancillary provision

Amendment 521 moved—[Siobhian Brown]—and agreed to.

Section 90, as amended, agreed to.

Section 91—Interpretation

Amendments 522 and 523 moved—[Siobhian Brown]—and agreed to.

Amendment 641 not moved.

Section 91, as amended, agreed to.

Sections 92 and 93 agreed to.

Long title agreed to.

The amendments in this group are largely technical. The main amendment is 315, which, at the request of the SLCC, puts a matter beyond doubt by expressly providing that the SLCC can initiate a conduct or regulatory complaint. Amendments 314, 317, 320, 356, 381 and 479 are consequential on that change.

Amendment 313 is a minor amendment to ensure consistency of language.

Amendment 318 is a minor change that is consequential on the removal from the 2007 act of section 2(4), which relates to premature complaints, in favour of the SLCC covering the issue in its rules instead.

Amendment 492 and the related amendment 330 make a technical change to the bill to write out the necessary modifications of sections 48 to 52 of the 2007 act, so that regulators can use those in connection with the investigation of a regulatory complaint in addition to a conduct complaint.

Amendment 493 corrects a cross-reference.

Amendment 362 changes the title of section 23 of the 2007 act to better reflect the content of the revised section, following amendment by the bill, to include reference to handling complaints, which are complaints about the handling of conduct and regulatory complaints.

Amendment 363 allows the SLCC to investigate the handling of a conduct or regulatory complaint by a relevant professional organisation after the six-month expiry deadline where it is considered that there have been exceptional circumstances.

Amendments 364 and 365 are minor and technical amendments. Amendments 366 to 369 make minor procedural changes to the consideration of handling complaints by the SLCC. Amendments 370 and 371 correct typographical errors, and amendment 449 corrects an incorrect cross-reference. Amendments 451 and 460 update cross-references to other provisions of the bill, and amendments 474 to 477 make further consequential changes. Amendment 471 sets out what decisions the Scottish Solicitors Discipline Tribunal is required to publish and provides it with the flexibility to publish any other decision that it feels is necessary.

All of the following remaining amendments in the group are minor correcting technical or consequential amendments. They are amendments 480, 482, 483, 485 to 491, 495 to 498 and 500. I ask members to support the amendments in the group.

I move amendment 313.

Amendment 313 agreed to.