Chamber and committees

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.

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, which amendment 328 seeks to amend.

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 fine 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

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.

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.