Chamber and committees

I thank Paul O’Kane for his comments. I know that the bill has been on a bit of a journey since it was introduced in April 2023. When we went into stage 1, committee members wanted to see all the amendments being made at that stage, so I hope that members will now appreciate the amount of work that has had to be done and the discussions that we have had with the judiciary and the Lord President to get us to where we are today. Thanks to my officials, a lot of work has been done in the background, and I think that we are in a better place today than we maybe were at this time last year. I thank Paul O’Kane for his comments on that.

Tess White asked about the SLCC’s comments on amendment 40. There has been a lot of engagement with stakeholders during the bill process. The purpose of amendment 40 is to clarify that, under section 3, the duty of the regulatory authority to exercise its regulatory functions in a manner which is compatible with the regulatory objectives and is considered the most appropriate to meet those objectives is not an absolute duty. The regulatory authority need only carry out that duty as far as practicable. The effect of amendment 40 will be to insert the words “so far as practicable” into section 3(1) of the bill, so that a regulatory authority need only apply the regulatory objectives so far as practicable. Amendment 40 reflects many discussions with the Law Society to get agreement and that is the conclusion that we have come to.

Yes, certainly. Amendment 41 makes it clear that the requirement to exercise regulatory functions in a way that contributes to sustainable economic growth applies only to the extent that to do so would not be inconsistent with the regulatory objectives, rather than, as the bill requires at present, only to the extent that it would not be inconsistent with the exercise of regulatory functions. The amendment addresses the Law Society’s concern that it is circular and confusing to require the exercise of regulatory functions only to the extent that that is not inconsistent with the exercise of regulatory functions.

Amendment 41 makes section 3(4)(b) clear that the duty to exercise regulatory functions in a way that would help to achieve economic growth applies only to the extent that that is not inconsistent with the regulatory objectives as set out in section 2(1).

Amendment 42 adds the Scottish Solicitors Discipline Tribunal as a named regulatory authority in section 3(5), which means that, as a regulatory authority, the SSDT is subject to the duties that are set out in section 3. Those duties relate to how the regulatory objectives are applied and to other regulatory authorities, including the Lord President and category 1 and category 2 regulators.

Yes, after engagement, we decided that amendment 40 is the right way forward.

Amendment 1 agreed to.

Amendments 2 to 4 moved—[Siobhian Brown]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Regulatory objectives

Amendments 38 and 39 moved—[Siobhian Brown]—and agreed to.

Section 2, as amended, agreed to.

Section 3—Application of the regulatory objectives

Amendments 40 to 42 moved—[Siobhian Brown]—and agreed to.

Section 3, as amended, agreed to.

Section 4 agreed to.

Section 5—Power to amend the regulatory objectives and professional principles

Amendment 43 moved—[Siobhian Brown]—and agreed to.

Section 6—Meaning of “legal services” and “legal services provider”

Amendments 44 and 45 moved—[Siobhian Brown]—and agreed to.

Section 6, as amended, agreed to.

Section 7—Meaning of regulatory functions

Amendment 46 moved—[Siobhian Brown]—and agreed to.

Section 7, as amended, agreed to.

Section 8—Regulatory categories

Amendments 47, 522 and 466 will make the necessary changes to legislation to reflect the change of name of the Association of Commercial Attorneys to the Association of Construction Attorneys. The association sought that change following the introduction of the bill, and that was approved under section 42 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Schedule 1 of the bill would make a variety of changes to the Solicitors (Scotland) Act 1980 with respect to the Law Society becoming a category 1 regulator and the move to entity regulation.

Amendments 5 to 37, with the exception of amendments 15, 24 and 27, are minor or consequential modifications to part 1 of schedule 1 and relate to the Law Society’s functions.

Amendment 24 removes paragraph 22 from part 2 of schedule 1 of the bill, because it is no longer required.

Amendments 412, 413 and 507 make consequential amendments, following a change of name in the bill from the “guarantee fund” to the “client protection fund”. Amendment 11 allows the client protection fund to provide grants, as well as loans, to judicial factors appointed, in order to mitigate the risk of any further pecuniary losses being suffered by the clients of such a person by reason of dishonesty. The amendment reflects engagement with the Law Society, which sought that addition.

Paragraph 6(6) of schedule 1 inserts a new section into the 1980 act to enable the Scottish ministers to, by regulations, adjust section 43 and schedule 3 of the 1980 act in respect of the circumstances when claims can be made and the maximum amount of any grant payable, and in connection with administrative matters.

Amendment 15 restricts the exercise of that regulation-making power only to those cases in which the Scottish ministers have received a request from either a regulator, the Lord President or the consumer panel to do so. Before making such a request, the requester must have consulted the regulatory committee, the Lord President and the consumer panel and must also have secured the Lord President’s agreement to making the request. The provision sets out what information must be provided to the Lord President when seeking their agreement and requires the requester to publish certain documents.

Amendments 461 to 465 make minor and consequential modifications to enactments in connection with regulatory objectives, professional principles and new regulators in part 1 of schedule 3 of the bill.

I move amendment 47 in my name and ask members to support the other amendments in the group.

Amendment 47 agreed to.

The sections on special rule changes relate to the practice rules and provide regulators with the powers to waive practice rules in defined circumstances for the purpose of promoting innovation or avoiding a regulatory conflict by removing an unnecessary rule or making a rule less onerous, where a regulator considers that to be necessary or appropriate. The waivers are not intended to be permanent, so the bill incorporates transparency and accountability to the Lord President in the process.

The intention of my amendments in the group is to retain the system of special rule changes that are set out in the bill as introduced, but to remove some elements, including the requirement to produce a dedicated report every year, and to introduce more flexibility in other areas in response to concerns that have been raised by the Law Society. The proposals for changes were reached following engagement with the Law Society, which feels that some provisions in sections 21 to 24 do not allow for enough flexibility in relation to the granting of waivers.

Amendment 179 will add to the conditions that are already set out in section 21 a condition that a regulator can give a direction to its member or members “only if” the regulator

“is satisfied the direction is compatible with the regulatory objectives.”

Amendments 180 and 181 will add additional circumstances in which a direction may be given—that is, where the regulator considers that a direction is

“necessary or appropriate in the circumstances.”

Amendment 182 provides that a direction may not disapply or modify a requirement under the bill “or any other enactment”. That will ensure that regulators will continue to meet their obligations in respect of the provisions in the bill or any other enactment.

Amendments 185 and 186 will add to the list of things that a direction must specify, including the period of time for which the direction is to have effect. Amendment 188 will remove the requirement that a direction ceases to have effect after five years.

Amendment 183 will limit the duty of a regulator to consult the Competition and Markets Authority before giving a direction that could restrict, distort or prevent competition to a significant extent to circumstances where the direction that is being given is for the purpose of enabling a new or alternative way of providing or regulating legal services to be piloted.

Amendment 184 will make changes to the bodies to which a copy of a direction is to be given and in what circumstances.

Amendment 187 will place a new requirement on a legal services provider to whom a direction relates to inform the regulator of any changes in circumstances.

Amendment 189 will limit the circumstances in which the Lord President may revoke a direction to the directions that have been given by a regulator, on the basis that it was desirable for the purpose of enabling new or different ways of providing or regulating legal services to be piloted. Amendment 190 will remove the duty to give notice of doing so to the Scottish ministers.

Amendment 191 will remove section 23 of the bill, with the effect that the regulator’s duty to prepare a report on each direction will be removed. Amendment 194 will make a consequential change to section 24. Section 24 of the bill requires a regulator to establish and

“maintain a register of ... Directions”

given under section 21 and sets out what documents the register must contain.

Amendments 192 and 193 will remove the need to include a copy of the application for, or application to amend, the direction.

Amendment 196 will add a requirement to specify

“whether the direction is to have effect for an indefinite period.”

Amendment 195 will make a technical change to denote the placement of the new subparagraphs of section 24(2)(b).

Amendments 197, 198 and 199 will make minor technical changes.

Paul O’Kane’s amendments 543, 544 and 545 would remove most of the special rule changes provisions—sections 21, 22 and 24—from the bill. Unfortunately, I cannot support them. Mr O’Kane’s amendment 556, which is to be debated with group 12, would not be a full replacement for the special measures approach that will be taken through sections 21 to 24, because it would apply only in relation to legal businesses, and not to all legal services providers. That would leave a gap in respect of the Faculty of Advocates and the Association of Construction Attorneys.

The provisions apply not only to the Law Society but to all current and future regulators of legal services in Scotland. The provisions would allow rules to be disregarded where that could bring innovation that could benefit consumers or make a rule less onerous for a legal services provider. The Lord President and the Law Society have been consulted on the Scottish Government amendments. I have listened to the Law Society’s comments and I have sought to address its concerns.

I also consider it important to retain transparency and oversight by the Lord President, following engagement with the senior judiciary. The senior judiciary consider that it is appropriate for the Lord President to have oversight of special rules changes and to have powers to revoke certain types of directions.

I will move amendment 179 and I ask members to support my other amendments in this group. I ask Mr O’Kane not to move his amendments 543 to 545. If he does, I urge members not to support them in favour of retaining the special rule changes arrangements in the bill.

I move amendment 179.

Amendments 455 and 456 amend respectively the new offences of taking or using the title of lawyer, or of pretending to be a regulated legal services provider. The amendments will increase public protection with regard to the term “lawyer”, as false use of the term will now be an offence without also having to commit intent to deceive. Likewise, a person can no longer falsely advertise that they are regulated.

Public polling by the Government and the Law Society has shown support for the title of lawyer being given the same protection as solicitor. That was considered important in order to protect the consumer, who might not understand the distinction between the two when seeking legal services from a regulated professional.

The committee has also heard anecdotal evidence of solicitors being struck off and subsequently providing unregulated legal services to the public under the title of lawyer. We view that there is a public protection concern in such cases.

Amendment 457 makes changes to section 84 to make it an offence for a person who is not a member of the Faculty of Advocates to, without reasonable excuse, take or use a name, title, addition or description implying that the person is a member of the faculty. Currently, a person commits an offence only if the person pretending to be an advocate does so with intent to deceive, and the amendment means that there is no longer any need to prove intent to deceive for the offence to be committed.

Amendment 250 widens the offence of pretending to exercise acquired rights to include any false claim of authorisation without a reasonable excuse, not just those made with the intent to deceive.

Amendment 458 alters the power for the Scottish ministers to make regulations to amend section 32 of the 1980 act to make provision for, or in connection with, its being an offence for an unqualified person to draw or prepare certain documents or provide certain other legal services.

Instead of being able themselves to initiate the regulation-making power, Scottish ministers will be able to exercise such a power only following a request to do so from the Lord President, a regulator or the consumer panel. Prior to making a request, the requesting body must consult the bodies in the list other than itself and secure agreement with the Lord President. The amendment seeks to add an approval mechanism for the Lord President before the Scottish ministers can seek to make regulations in that area.

I move amendment 250 in my name and I ask that members support all amendments in the group.

The incidents that Ben Macpherson has mentioned are totally unacceptable. He is right that we are talking about a very small minority, but I very much recognise the impact on the people and communities who are directly affected and, therefore, the need for continued relentless focus to tackle any rise in violence.

Addressing the root causes of crime, undertaking effective preventive and diversionary activity and ensuring appropriate enforcement are critical to safeguarding our communities, which is why, for example, the Scottish Violence Reduction Unit has been working to develop a community of practice for more than 100 police schools liaison officers across Scotland. In addition, the independent working group on antisocial behaviour that I established is expected to publish its findings shortly, and we have committed to act on its recommendations.

I am happy to discuss with the member the idea of having a future meeting at Victoria Quay.

Our priorities are also reflected in the budget, which will, if passed, increase funding to support police capacity and capability to £1.62 billion and will include almost £57 million in additional resource funding. As I said, Police Scotland confirmed on 4 November that the service had reached 16,600 officers. Our priorities are reflected in the budget. If members back the Scottish Government’s budget, an additional £3 million will be made available to Police Scotland specifically to help it to tackle retail crime.

Good collaboration between partners is essential to tackling the issue effectively. We are ensuring that bespoke interventions and support are provided through social work and third sector interventions such as Includem’s adapt programme, which supports children who are involved in offending and their families. We also continue to support the cashback for communities programme, which is funded by money recovered through the Proceeds of Crime Act 2002, and we are investing in projects that are helping to deliver a positive future for our children and young people.

The Scottish Government totally recognises the significant disruption and harm that retail crime causes and condemns any violence against retail workers. We recognise retail workers’ vital role in our society and want to ensure that they are protected. The Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act 2021 created a statutory offence of

“assaulting, threatening or abusing retail workers”,

which highlights the seriousness of such behaviour.

We support the innovative Scottish partnership against acquisitive crime, which is led by Police Scotland and retailers, and we encourage retailers to report all crimes to the police and to engage with that partnership. If our budget is approved by Parliament, it will make an extra £3 million available in 2025-26 to tackle retail crime.

I take this opportunity, Presiding Officer, to wish you and all members of the Scottish Parliament a happy new year.

I was, of course, appalled to learn of the recent criminal incidents in Ben Macpherson’s constituency. I know that police are actively investigating to identify those who are responsible.

The Scottish Government remains committed to preventing children from getting involved in offending behaviour and to taking action to stop any reoffending where they do get involved. We work with partners to deliver a range of activities. For example, we expanded the Scottish Violence Reduction Unit’s work and delivered knife crime prevention education to practitioners and young people across Scotland.

I know that this is cold comfort to victims, but recorded crime is down 40 per cent since 2006-07. As of 4 November, Police Scotland reached officer numbers of 16,600, with further intakes planned throughout this year. In 2025-26, we will increase police funding to £1.62 billion. In addition, the First Minister will host a cross-party youth violence summit next week, on Monday 13 January.