Chamber and committees

I thank Christine Grahame for bringing the debate to the chamber. I know that, over many years, she has spoken with passion and dedication on issues relating to the Lockerbie disaster. I know that she will continue to pursue them, but this might be one of the final occasions on which she brings discussion of Lockerbie to the Parliament, because she intends to stand down next year. The Parliament will be poorer as a result. I also thank Emma Harper and Colin Smyth for their powerful personal contributions.

I begin by offering my continuing sympathy to everyone who lost loved ones on that awful night all those years ago, on Pan Am flight 103 and in the town of Lockerbie. We should also remember the emergency workers from around the town, and further afield, who responded in the immediate aftermath of that atrocity. Their rapid response, along with that of the people of Lockerbie, in extraordinary circumstances, demonstrated remarkable professionalism, kindness and humanity in the face of one of the worst terrorist attacks on Scottish soil.

Although the events of 21 December 1988 have had a lasting impact on the town, I know that, following the disaster, links were forged between Lockerbie and other affected communities. They include the establishment of a scholarship programme involving Syracuse University and Lockerbie academy.

Ms Grahame’s motion highlights the work of Dr Jim Swire, who lost his daughter Flora in the disaster. Dr Swire’s steadfast commitment to his cause, in memory of his daughter, is a testament to the endurance of the human spirit.

I am sure that members will understand that it would be inappropriate for me, as a Scottish minister, to make any comment on the criminal cases that followed the disaster. However, the motion refers to concerns that Dr Swire and others have expressed about the criminal justice process. It is therefore important that I confirm to the Parliament the checks and balances that exist in the Scottish justice system.

The processes for investigating and determining alleged miscarriages of justice operate independently of the Scottish ministers. The Scottish Criminal Cases Review Commission is an independent public body, which, as the motion notes, has responsibility for investigating cases when it is alleged that a miscarriage of justice might have occurred in relation to a conviction or a sentence. The commission has extensive powers to obtain documents from any person or organisation and to request that evidence be given under oath.

Under the statutory test set by the Parliament, the commission can refer a person’s conviction to the appeal court for a fresh appeal if, after considering the application, it thinks that

“a miscarriage of justice may have occurred”

and that

“it is in the interests of justice”

for the case to be referred back to the appeal court.

I wish to express my gratitude to Jackson Carlaw for today’s motion, and I sincerely thank everybody who has kindly taken the opportunity to commemorate Holocaust memorial day for their very powerful contributions. This is the second year in which I have responded to the debate, and I have to say that it is one of the most powerful, emotive, thought-provoking and grounding debates, because it highlights our vulnerability as humanity in what appears to be a volatile and sometimes very busy world.

Everybody’s contribution tonight has been very valuable, but I want to give a minute to Jackson Carlaw, who always makes very powerful contributions. I know about his on-going commitment to highlighting the atrocities of the Holocaust. As he mentioned at the end of his speech, its few and frail survivors are disturbed by fears for the future. Colleagues, that is why it is vital that we ensure that it never happens again.

Another powerful contribution came from Ben Bland, the young person whom Paul O’Kane heard from in his constituency. In the darkness of today’s world, as it must appear to a lot of our youngsters, he has a really positive and hopeful view, which I found very inspirational and powerful to hear about.

I echo the heartfelt words that have been offered by my fellow members in paying tribute to the 6 million Jewish people who were systematically murdered during the Holocaust, and the countless others who were killed by the Nazi regime, and the untold numbers of people whose lives were callously taken from them in the genocides that took place in Cambodia, Rwanda, Bosnia and Darfur.

The horrors of the Holocaust are a stark reminder of the devastating consequences if prejudicial attitudes are not challenged and confronted, as my colleague Pauline McNeill eloquently set out. Despite all our political differences, it is deeply moving to witness members in the chamber being united in honouring peoples among whom lives were decimated by such terrible persecutions.

This year’s commemoration is a seminal moment, as we mark the 80th anniversary of the liberation of Auschwitz-Birkenau and the 30th anniversary of the genocide in Bosnia. Following the Nazis’ ascent to power in 1933, they ramped up the antisemitic rhetoric prior to passing laws that gradually stripped Jewish citizens of their most basic human rights, including forcing them to wear yellow stars and singling them out for ever-worsening persecution. That slow but precise process of dehumanisation would later culminate in one of the most heinous acts in human history, as the regime attempted to exterminate all Jewish people in Europe.

The beginning of the Bosnian war in 1992 presented a chilling parallel, as non-Serbian citizens were first compelled to wear white armbands, setting in motion the infamous practice that would later come to be known as ethnic cleansing. The most monstrous example of such brutality was to occur in 1995, when the town of Srebrenica witnessed the genocidal massacre of 8,000 Muslim men and boys by Bosnian Serb forces in one of the largest incidents of mass murder in Europe since world war two.

In reflecting on the sheer inhumanity of those atrocities, we are reminded of this year’s theme, which encourages us to strive collectively for a better future, while challenging those who attempt to deny or trivialise the Holocaust or any genocide. The Scottish Government must lead by example and remain ever vigilant, so that the grave consequences of the past can never be repeated.

In that spirit, I was proud to support the commencement of the Hate Crime and Public Order (Scotland) Act 2021 in April last year. Alongside our hate crime strategy, that will ensure that we take the robust measures that are the necessary response to criminality that is rooted in prejudice, and that we provide confidence that all incidents will be treated with the utmost seriousness.

Last year, we were privileged to assist with the United Kingdom’s presidency of the International Holocaust Remembrance Alliance in a series of engagements, including at the Kelvingrove art gallery and museum in Glasgow, where the First Minister spoke about the importance of working together to tackle the growing threat of antisemitism.

In recognition of the deep-seated nature of prejudicial attitudes, we are working in close collaboration with partners to prevent such behaviours from taking hold and undermining our commitment to community cohesiveness.

Let me be clear that discrimination, including antisemitism, must be challenged through educating our children about all cultures, faiths and belief systems, and ensuring that they learn tolerance and respect. The Scottish Government’s aspiration is that our children and young people feel equipped to go out into the world as citizens of the tolerant and inclusive Scotland that we all want to be part of.

Tomorrow, I will have the honour of participating alongside the First Minister at the Scottish ceremony for Holocaust memorial day, which has been expertly organised by our friends at the Holocaust Memorial Day Trust. It is deeply saddening that the ceremony will be without Henry Wuga, who, as Jackson Carlaw said, tragically passed away last year. The loss of his devotion in support of Holocaust memorial day will be immeasurable. However, I am humbled that I will have the opportunity to share a platform with a number of truly inspiring individuals, including Holocaust survivor Alfred Garwood MBE, and Smajo Bëso, who escaped the Bosnian genocide. The remarkable courage of all survivors in the face of such dire circumstances and their unwavering sacrifice in sharing their testimonies is a display of selflessness for which all of us should be forever indebted. I sincerely hope that as many members as possible can join us tomorrow night at the commemoration.

The responsibility of building a better future is incumbent on all members and on everyone in our diverse communities. I have been particularly struck in my conversations with Jewish and Muslim communities about how antisemitism and Islamophobia continue to impact on their daily lives. To them, I say, “Scotland is, and always will be, your home.”

Holocaust survivor Elie Wiesel once said:

“To forget would not only be dangerous but offensive; to forget the dead would be akin to killing them a second time”.

We must always honour those words as part of our duty to remember the Holocaust and other genocides, while also aspiring to a better future, in which nobody need live in fear simply because of who they are and the group to which they belong.

Therefore, it is paramount that we support one another while resisting any and all voices that seek to divide us, and that we instead work in harmony for a caring and inclusive world that provides opportunities for all to flourish.

The 2025-26 draft Scottish budget outlines that we will invest almost £4.2 billion across the justice system, which is a 9.5 per cent increase on this year’s budget. We are committed to ensuring fairer access to justice, whereby individuals can be supported in criminal, civil and administrative law settings.

Additional funding can be provided only if Opposition parties support the Scottish budget. It is welcome news that the Green Party and the Liberal Democrats got around the table for budget negotiations so that we can deliver for the people of Scotland. I urge the Scottish Labour Party and the Conservatives to work together with us to pass the budget and allow us to uphold the rule of law, safeguard rights and protect individuals and communities from harm, which is fundamental to the functioning state and to the people of Scotland.

The Scottish Government recognises that reform is needed in the legal aid system for legal aid to be responsive and user-centric and to work effectively in the delivery of agreed actions in the way that is expected of public services.

In the short term, we have identified priority changes that we believe will impact positively on users and providers. Officials are currently developing a legal aid action plan for reform, and we will engage with that soon. I am aware that the Scottish Legal Aid Board is currently undertaking a geographical analysis of legal aid throughout Scotland.

I am happy to meet Maggie Chapman to discuss any constituent experiences that she wants to discuss or if she would like to provide input to the reform.

I appreciate all the work of police dogs and the importance of their welfare. I will write to Douglas Ross on specific details of the insurance of police dogs.

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

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

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

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

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

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

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

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

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

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

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

I urge members to support the amendments in this group.

I move amendment 395.

Amendment 395 agreed to.

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

Section 69, as amended, agreed to.

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

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

Section 70, as amended, agreed to.

Section 71—Enforcement of minimum standards

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

Section 71, as amended, agreed to.

After section 71

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

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

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

Amendment 536 moved—[Siobhian Brown].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I move amendment 312.

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

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

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

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

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

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

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

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

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

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.