Chamber and committees

Amendments 473, 509, 510, 516 and 520 will make a number of technical amendments to the Solicitors (Scotland) Act 1980, following substantive changes that will be made to that act by other parts of the bill.

Amendment 501 will amend the 1980 act in relation to the Law Society’s function of keeping and maintaining a roll of solicitors, with changes including imposing requirements regarding the accessibility of the roll, reflecting modern practice and technology. Amendment 501 will also make similar changes to the 1990 act.

Amendment 502 will allow that, where the tribunal decides not to restore a solicitor’s name to the roll, that solicitor can appeal the decision to the court. It also makes an equivalent provision relating to registered European lawyers and foreign lawyers.

Amendment 506 will allow the Law Society, subject to certain safeguards, to rely on a previous conviction being fact when investigating a discipline matter. That should prevent delay in conduct investigations.

Amendments 511 to 513 will make changes to schedule 4 to the 1980 act, which is on the constitution, procedure and powers of the tribunal. The main changes are about improving the complaints process and include: the introduction of a requirement that each solicitor member must have in force a practising certificate when appointed; a new requirement for a copy of every decision by the tribunal to be sent to the commission; and a duty on the Law Society to give effect to that decision.

Amendment 514 will allow that, where the tribunal dismisses a complaint of professional misconduct on the part of a solicitor, or of failure on the part of an authorised legal business before inquiring into the complaint, either the council or the complainer, as appropriate, can appeal the decision to the court.

Amendment 515 sets out that any decision of the court in relation to an appeal is final.

Amendment 517 will add to the Disclosure (Scotland) Act 2020 a list of offences that relate to the legal profession. That will have the effect of making convictions for those offences disclosable convictions under that act.

Amendments 518, 519 and 521 will make minor and technical amendments that relate to offences.

I ask members to support the amendments in the group.

I move amendment 473.

If I may, convener, I will just make a correction to something that I said.

Amendment 514 allows that, where the tribunal dismisses a complaint of professional misconduct on the part of the solicitor or of failure on the part of an authorised legal business before inquiring into the complaint, either the Law Society—not the council, as I said earlier—or the complainer, as appropriate, can appeal the decision to the court.

Thank you, convener.

Amendment 473 agreed to.

Amendments 474 to 478 moved—[Siobhian Brown]—and agreed to.

Amendment 640 not moved.

Amendments 479 to 497 moved—[Siobhian Brown]—and agreed to.

Amendment 650 not moved.

Amendments 498 to 502 moved—[Siobhian Brown]—and agreed to.

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.

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, where authorised to do so by the SLCC, to take a decision on the disclosure of information under proposed new section 41A of the 2007 act, which—if agreed to—will be introduced by amendment 533, in the name of Stuart McMillan, in group 18. That proposed new section would introduce the power for the SLCC to disclose information relating to complaints.

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 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].

On page 32 of the bill, section 41 sets out that, in order for the SLCC to apply the eligibility test, it will need to consult the Lord President, Scottish ministers, all the regulators and the consumer panels with regard to making those decisions. I appreciate that we do not yet have the exact detail to give to Mr O’Kane, but, as the process moves forward, there will be a consultation with all stakeholders.

Moving on, the improvements that are proposed in the bill and in the amendments in my name allow the SLCC to operate a flexible, agile complaints process that allows a proportionate approach to different types of complaints. The amendments in my name have been developed with the SLCC, which has 15 years’ experience of dealing with more than 18,000 complaints. It understands where delays or blockages occur and where improvements could be made to the process.

The bill provides a proportionate and agile approach. Unfortunately, Mr O’Kane’s amendments in this group propose to reintroduce prescriptive provisions to the legislation, which would risk the improvements in the bill that would deliver efficiencies. Those efficiencies would be achieved through a streamlined triage process in particular, which would allow complaints that required further investigation to proceed swiftly either to resolution or to the relevant regulator, and complaints that were not eligible for investigation to be closed. That is in everybody’s best interests.

In its letter of 17 January to the committee, the Law Society said:

“The Bill as lodged contains many important steps to speed up and improve the complaints system. The eligibility process overseen by the SLCC is improved, meaning conduct complaints reach us more quickly”

I am concerned that Paul O’Kane’s amendments would cut across those improvements.

It is important to note that the committee raised concerns in its stage 1 report that we must

“ensure a system is in place to efficiently deal with complaints without merit to avoid clogging up the system and causing unnecessary delay.”

That is still a key component of the proposed system, as the bill requires the SLCC to make rules about its practices and procedures, including with regard to decisions that a complaint does not merit investigation.

In making and varying these rules, the SLCC will be required to consult with the Lord President, the professional bodies, the consumer panels, other consumer groups and groups that represent the interests of the legal profession, as I mentioned to Paul O’Kane. The SLCC will also need to publish the rules. I consider that that provides sufficient checks to ensure that the committee’s concerns will be addressed.

The bill also provides an opportunity to remove some of the, at best, legalistic and, at worst, offensive language, such as “frivolous” and “totally without merit”, that the SLCC is required to use with complainers when it tells them that aspects of their complaint are not eligible for investigation. Rosemary Agnew, the Scottish Public Services Ombudsman, touched on that at stage 1. She noted:

“There are things in the bill that will help, such as the flexibility to make rules. That will enable some of the language issues to be addressed, because we can represent things in ways that are perhaps more accessible to everyday folk.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 14 November 2023; c 10.]

Paul O’Kane’s amendments serve to add back the complexity and prescription and would increase inefficiency and delay. If his amendments are supported, it would raise significant concerns over the financial assumptions about efficiency improvements that will arise from the bill. I therefore ask Mr O’Kane not to press his amendments in this group. If he does press them, I urge members to oppose them. I ask members to support my amendment 316.

Amendment 572 seeks to reinstate the express provision contained in section 12 of the Legal Profession and Legal Aid (Scotland) Act 2007 on how the SLCC must notify the complainer and practitioner of a decision to uphold or not to uphold a service complaint. The removal of section 12 is one of a number of changes that are made by the bill to enable the SLCC to deal with complaints with greater flexibility. The intention is that service complaints will not all be required to be dealt with by the committee members, but by SLCC committee members and members of staff as appropriate and as laid down in the SLCC’s practice and procedure rules.

The bill at section 66 provides a proportionate and agile approach, which makes provision for the SLCC to produce such practice and procedure rules for dealing with service complaints. It is intended that requirements that are broadly equivalent to those set out in section 12 will instead be set out in the rules. There will be no lessening of the SLCC’s responsibility in that respect.

The amendments in this group relate to and have been shared with the Scottish Legal Complaints Commission. They also align with the committee’s stage 1 recommendations.?

Amendment 319 will allow the SLCC to close a services complaint when a practitioner accepts a settlement proposed by the SLCC but the complainer does not.

The SLCC will also be able to decide either not to initiate the investigation of a services complaint or to close a complaint, when it considers that the practitioner has offered the complainer a settlement that the SLCC considers to be fair and reasonable and when the SLCC is satisfied that the proposed settlement will remain available?for 28 days after the?decision not to initiate an investigation.??

It is intended that the SLCC may close the case where it learns that the practitioner has made a reasonable offer prior to the complaint being lodged with the SLCC, but which the complainer has refused. The amendment is intended to speed up the redress process. The intention is for the power to be used where the practitioner has made an offer that is unlikely to be exceeded by a full determination of the complaint.

Amendment 481 is a consequential change.

Amendment 331 will apply where the SLCC upholds a services complaint against a practitioner. Where the practitioner was a partner of a firm at the time when the service was provided, it will allow the SLCC, when upholding a services complaint, to give direction to take steps to redress the complaint to the practitioner’s firm instead of to the practitioner. Amendments 332, 333 and 334 are all consequential to that.

Amendment 450 seeks to increase the transparency and amount of information that is contained in the SLCC’s annual report. It will ensure that the annual report contains details of the work of each review committee and of the steps taken to ensure that each review committee is able to act independently of the SLCC when considering and determining each application for review. In addition, when preparing the annual report, the SLCC will be required to consult with the Lord President, the independent advisory panel of the SLCC and each category 1 and 2 regulator.

I ask members to support all the amendments in the group, and I move amendment 319.