Chamber and committees

Will the member take an intervention?

I appreciate that Mr O’Kane’s amendment 135 is a Law Society amendment, but, as we have all known throughout the passage of the bill, there has to be a balance for consumers and the legal profession. My view is that amendment 135 would weaken the SLCC’s authority to set complaints handling standards. Consumer bodies support the strengthening of independent oversight by the SLCC.

Amendment 2 makes it clear that any request that is made by the Scottish Parliament to the Lord President to review the performance of a category 1 or a category 2 regulator can be made only following a resolution of the Scottish Parliament in plenary.

I move amendment 2.

I thank Tess White for her engagement and contribution to the bill through amendments 130 to 134 and 142. Those amendments significantly enhance the clarity and structure of the provisions relating to the registration of unregulated legal services providers under the Legal Profession and Legal Aid (Scotland) Act 2007. The amendments collectively strengthen and enhance transparency and ensure that the process for registration in the voluntary register for unregulated legal services providers is both accountable and consultative.

I ask members to support the amendments in Tess White’s name.

No.

Amendment 59 agreed to.

Section 91—Interpretation

Amendment 138 not moved.

Schedule 1

Amendments 60 to 64 moved—[Siobhian Brown]—and agreed to.

Schedule 3

Amendments 65 to 67 moved—[Siobhian Brown]—and agreed to.

Amendment 92 will allow the Law Society to contact a solicitor who was required to complete training before being enrolled to ask whether they plan to complete the training, and, if they do not respond within eight weeks or if they fail to complete the training within six months of entering a training contract, the Law Society may remove the solicitor from the roll.

Section 12D of the Solicitors (Scotland) Act 1980 was amended at stage 2 to give registered European lawyers the right to appeal to the Scottish Solicitors Discipline Tribunal where the Law Society decides not to restore the lawyer to the register. Amendment 94 ensures that the provisions applying to appeals to the SSDT include appeals under section 12D(2A) of the 1980 act.

Amendments 95 and 96 correct terminologies to make it clear that the power of the SSDT or of the court is to “order the restoration of” the foreign lawyer’s name to the register rather than to carry out the restoration itself.

Amendment 97 will ensure that the SSDT has consistent powers to award expenses in relation to all matters that it deals with, including applications for restoration, rather than just complaints and appeals, as is currently provided for.

I ask members to support the amendments in my name.

I move amendment 92.

I will.

I thank all members and stakeholders for their constructive engagement in respect of the bill. I understand that Paul O’Kane has lodged his amendments in this group on behalf of the Law Society of Scotland.

I consider that amendment 116 is not necessary, as the bill already provides that the establishment and management of a compensation fund is a regulatory function of the Law Society as a category 1 regulator. That is because section 7 of the bill, which provides that “regulatory functions” include “complying with the requirements” under the bill, is to be read with section 14, which places a requirement on the Law Society to “establish and maintain” a compensation fund. It is clear from section 14 that a category 1 regulator “must establish and maintain” a compensation fund. That requirement is then caught by the definition of “regulatory functions” in section 7.

Amendments 129 and 139 to 141 would make provision to restrict conduct complaints that are brought against solicitors in relation to them discharging regulatory functions. The Law Society raised that matter with the Scottish Government following stage 2. Although I appreciate and understand the concerns that were raised, I consider that amendment 531, which was agreed to at stage 2, will give all relevant professional organisations the flexibility to discontinue a conduct complaint that has been remitted to it if the relevant professional organisation considers that it is in the public interest to do so. It provides a route to address the concerns that are raised.

As Mr O’Kane alluded to at the start of his speech, there are competing views, and, as we know, there is a history with this bill of trying to find a balance for both sides. Given the SLCC briefing that has been sent to members, I will continue to engage with the Law Society to monitor the operation of the new provisions. I consider that the matter would benefit from further consultation and consideration. I therefore ask Mr O’Kane not to press or move his amendments in the group. If he does so, I urge members to oppose his amendments.

I turn first to the amendments in my name.

Section 54(7) of the bill repeals section 12 of the Legal Profession and Legal Aid (Scotland) Act 2007, which specifies how the Scottish Legal Complaints Commission must notify the complainer and practitioner of a decision to uphold or not uphold a services complaint. The SLCC and I agree that that is too restrictive, so the amendments provide for minor and technical changes to add additional flexibility. As a result, amendments 9, 83, 84, 85 and 88 amend paragraph 26 of schedule 3 to the bill to remove the express requirement that notice under sections 3, 8, 16, 17 and 24 of the 2007 act must be given in writing.

Amendment 5 repeals section 45 of the 2007 act, which relates to the giving of notices, and amendment 89 is a consequential amendment.

New section 20A enables the complainer and the practitioners to whom the complaint relates to apply to the SLCC for a review of its decisions as listed in the provision. An amendment that was passed at stage 2 now allows the SLCC to discontinue the investigation of a complaint if the practitioner accepts a settlement that is proposed by the SLCC but the complainer does not. Amendment 7 ensures that that decision by the SLCC is reviewable, thereby securing a right of review and enhancing transparency and accountability in the complaints process.

Section 61 of the bill inserts new section 17A into the 2007 act, giving the SLCC the power to request practitioners’ details in connection with complaints. Amendments 12 and 13 expand the powers in section 17A to cover the investigation and reporting of handling complaints. The changes also enable the power to be used by the SLCC where it initiates a conduct or regulatory complaint.

Amendments 86 and 87 amend section 17 of the Legal Services Act 2007 by adding a reference to new section 2A, following the stage 2 amendments that inserted complaints initiated by the SLCC and handling complaints, to the list of sections mentioned in the Legal Services Act 2007. That is to address and rectify an SLCC concern regarding the omission of handling complaints from the powers in sections 17 and 17A.

Amendment 14 amends section 66 of the bill, which in turn amends paragraph 1 of schedule 3 to the Legal Profession and Legal Aid (Scotland) Act 2007, which lists what the rules for the practice and procedure of the SLCC must include.

The effect of amendment 14 is that the rules must include provision to require complaints that are

“frivolous, vexatious or totally without merit to be considered ineligible”,

which would mean the SLCC need not take any further action other than to give notice of that fact to the complainer, the practitioner and any other person as required under the rules.

Amendment 6 and consequential amendment 8 remove the ability to review the decision to categorise a complaint as a conduct complaint or as a regulatory complaint. We agree with the SLCC’s view that these decisions should not be open to review, particularly given the introduction of hybrid complaints, which means that complaints can now be categorised as both types—conduct and regulatory.

Amendments 15 and 16 make small changes to section 66 of the bill, which amends schedule 3 to the Legal Profession and Legal Aid (Scotland) Act 2007. The changes mean that the SLCC practice and procedure rules—that relate to the recategorisation of a services complaint—include regulatory complaints.

I turn now to Mr O’Kane’s amendments. I cannot support amendment 135, as it would weaken the SLCC’s authority to set standards in complaints handling. The minimum standard setting was introduced in response to calls for more independent regulation of legal services from stakeholders that represent consumer interests. Consumer bodies support the strengthening of the SLCC’s independent oversight of the setting of minimum standards for complaints handling. As members will remember, the committee heard evidence from Rosemary Agnew, the Scottish Public Services Ombudsman, that this is best practice. Giving the Lord President a direct role in determining whether guidance that sets minimum standards is to be complied with—or not—may be viewed as a step away from the consumer-focused approach. I do not think that allowing a veto on the setting of minimum standards, potentially prior to SLCC consultation, is in the consumer’s interest.

The current procedure in the bill for setting and issuing minimum standards is aimed at providing greater quality assurance and continuous improvements in complaints handling. As currently drafted, the process is open and transparent. Prior to issuing any guidance that sets minimum standards, the SLCC would carry out a consultation to seek the views of those persons—or their representatives—who would be affected. The SLCC must consult the Lord President, the regulators, practitioners and any other appropriate persons on the initial proposals. The SLCC must again consult the regulators and other appropriate persons on any subsequent drafts. It must take into account any representations that have been made and, further to that, publish a document that summarises the consultation that has been undertaken, the responses and any changes that have been made to the guidance as a result. The SLCC must also give its reasons for including the minimum standards. As a statutory consultee, the Lord President will have had an opportunity at that initial stage to express their views on the proposed minimum standards.

The intention is that the regulators and the Lord President have an opportunity to raise any concerns or challenge any proposed minimum standards through the initial statutory consultation process. As an iterative process, ultimately, given the role of the Lord President in approving a regulatory scheme—which must contain practice rules about the making and handling of complaints, as well as any revisions to it—the Lord President could withhold consent to any subsequent practice rule changes to reflect those standards if they retained concerns with the proposals. That would require the SLCC either to address any concerns that the Lord President raised or to abandon the proposal. The SLCC considers that adding even more stages to the process would add cost to the system and potential delay in addressing emerging consumer protection issues.

Moving on to Mr O’Kane’s other amendments in this group, I am pleased to have been able to work with him on his amendments 11 and 90, which provide relevant professional organisations with the power, when they are considering initiating a complaint against a practitioner or an authorised legal business, to give notice to the practitioner—or the practitioner’s firm or the authorised legal business—requiring the production and delivery of the documents that are specified in the notice relating to the complaint. The amendments will allow all lawyers who are working for the Crown Office and Procurator Fiscal Service to be exempt from any requirement that is placed on them to provide information to prevent interference with their prosecution functions and independence. I am grateful to Mr O’Kane for taking on board my concerns and I am content to support amendments 11 and 90.

I am also pleased to have been able to work with Mr O’Kane on his amendments 22 and 23, which provide expressly that the Law Society of Scotland, which has discretionary powers to disclose information when it is in the public interest to do so, is not subject to the restriction in section 52(1) of the 2007 act, and that the SLCC, which has discretionary powers to disclose information when it is in the public interest to do so, is not subject to the restriction in section 41(1) of the 2007 act. I am therefore content to support amendments 22 and 23.

I urge members to support amendments 5 to 9, 12 to 16 and 83 to 89, in my name, and amendments 11, 22, 23 and 90, in the name of Paul O’Kane. However, I ask them not to support amendment 135, in Mr O’Kane’s name.

I move amendment 5.

I will take a moment to reflect on the importance of the Regulation of Legal Services (Scotland) Bill and the hard work that has gone into bringing it to this point, which includes engagement with members across the Parliament. I thank everybody, including the many members who have spoken today, for all their engagement.

The bill is a significant step forward in ensuring that Scotland’s legal services are accessible, accountable and of the highest quality. The changes that we are debating today are about not just regulatory frameworks or the legal process, but the people of Scotland—the people who rely on legal services and the professionals who serve them.

We are crafting a legal services system that is robust and also flexible, transparent and equipped to meet the needs of a modern society. I am particularly pleased that we have been able to introduce changes that will enhance transparency for consumers, enhance access to justice and create a framework that fosters both public confidence and professional respect. The bill empowers the Lord President, bringing much-needed oversight, while ensuring that the legal profession in Scotland continues to uphold the high standards that it is known for.

I acknowledge that the bill is not the end of the journey but rather the beginning of an on-going process of refinement and improvement. We have created a foundation for a regulatory framework that can adapt to future changes, and it will be vital that we remain open to further improvement as the legal landscape evolves, including during the implementation of the eventual act by secondary legislation.

I am confident that, with this bill, we are setting Scotland’s legal services on a path to greater fairness, accessibility and accountability for years to come. Over the course of today’s debate we have heard a range of important contributions from members on this critical piece of proposed legislation, and I will take a moment to reflect on some of them.

First, I thank Scottish Labour, the Scottish Greens and the Scottish Lib Dems for all their engagement and for backing the bill today. I have to say, however, that I am really disappointed in the Scottish Conservatives for not supporting the bill at stage 3, and I am confused by their stance.

I think that consumer groups would be extremely concerned by Tess White stating that the independent regulator should be regulated by the head of the judiciary, the Lord President. For clarity, I note that Esther Roberton sought accountability outwith the judiciary. It is disappointing that the Scottish Conservatives do not appear to have a clear understanding of the history of all the work that has gone into the bill or of the asks of consumers or the legal profession. That is very sad.

I will reflect on a few other contributions. The lead committee recognised the differing views of the legal profession and consumer groups on the question of regulatory reform, as well as the fact that there is broad support for the improvements that will be introduced by the bill. As members will note, I have sought to work in a collaborative way with members and stakeholders, considering their concerns and making concessions where I consider that it is sensible. I believe that the bill provides balance and delivers key priorities to stakeholders.

Members have the opportunity today to vote on a bill that will reshape how legal services are delivered for, and experienced by, professionals and consumers alike. Our goal is clear: a legal services system that works for everyone. I therefore ask members to support the motion in my name and to pass the Regulation of Legal Services (Scotland) Bill.