Chamber and committees

As members know, the Scottish Government opposed both Brexit and the Retained EU Law (Revocation and Reform) Act 2023. However, we recognise that we need to take technical action to ensure that things work as smoothly as possible. In some cases that involves working with our colleagues at Westminster.

The purpose of the Westminster statutory instrument is to continue the savings that were made at European Union exit to ensure that the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters can continue to apply in certain legacy cases. The 2007 Lugano convention contains rules governing jurisdiction in civil and commercial matters when a case has connections to more than one country, and it contains rules that provide for recognition and enforcement of judgments in such matters.

The convention is a treaty between EU member states, Norway, Iceland and Switzerland, and was entered into by the EU on behalf of member states while the UK was itself a member state. At EU exit, the convention was revoked for the UK because the UK’s convention membership was dependent on its status as a member state and because its operation relied on reciprocal application, which would no longer occur.

However, the convention was saved for transitional cases—that is, to save the jurisdiction rules for cases that were commenced before the end of the transition period and to save the recognition and enforcement rules for judgments that were issued in cases that were commenced before then.

The savings provision relied in part on section 4 of the European Union (Withdrawal) Act 2018; section 2 of the Retained EU Law (Revocation and Reform) Act 2023 will repeal section 4 of the European Union (Withdrawal) Act 2018 at the end of the year, which creates a risk that the savings that have been put in place will fall away. The proposed SI will use transitional powers under the 2023 act in order to continue the savings provision. Given that the original savings for transitional cases extended UK-wide, the UK Government proposes to extend the SI UK-wide.

As I said, the Scottish ministers remain opposed to Brexit. However, in order to minimise the damage that EU exit brings, this technical SI is necessary to ensure continuity in respect of relevant judgments and those that were issued before the end of the transition period. It will also save the recognition and enforcement rules for judgments that have been issued in cases that were commenced before the end of the transition period.

The relatively small number of statutory instruments that have been proposed under the 2023 act that are notified to committees—seven so far, including this one—reflects the fact that the Government will never consent to proposals that threaten the vital safeguards and high standards that Scotland benefited from when the UK was part of the European Union. The programme for government commits the Scottish Government to maintaining alignment, where that is possible and meaningful, with EU law, and this SI has implications for devolved responsibilities. I invite the committee to agree that the Scottish ministers should consent to the SI being made.

My understanding is that the lawyers will draft them for stage 2, but we will have agreement on the way forward for the different sections with stakeholders and the Lord President’s Office. We will be able to provide the committee with detail on that—probably not the exact wording, but the agreed principles for the amendments.

The Law Society has 12,000 members, one third of whom work in-house while the other two thirds predominantly serve the public and handle client money. On the other hand, there are 450 advocates in Scotland, and advocates are members of an independent referral bar. That means that, as a general rule, advocates do not provide their services directly to the public but are available to be instructed by solicitors and other designated professionals and bodies. Similarly, construction attorneys operate in a specialist area of law, and there are 10 practising members of the Association of Construction Attorneys.

It was viewed as a proportionate response to put greater regulatory requirements on the Law Society, as it has substantially more members, at 12,000, than on the Association of Construction Attorneys, which has 10 members. In an evidence session with the committee, the Association of Construction Attorneys said that it would struggle to be a category 1 regulator.

The bill significantly increases the transparency of all three branches of the legal profession and future proofs the framework to provide a risk-based and proportionate approach to any new entrant into the Scottish legal sector.

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 terms when they are seeking legal services from a regulated professional.

I know that the committee heard anecdotal evidence of solicitors being struck off and subsequently providing unregulated legal services to the public using the title of lawyer. Our view is that because of such cases there is a public protection concern involved in protecting the title of lawyer.

We have to strike a balance. If we end up with no bill, we will have no legal reform, which is required for the legal sector and consumers. The positive aspects of the bill will still bring progress to reform of the legal sector, even though there might be some opposing views along the way.

I thank Miss Wells for her answer—sorry, her question.

Certain stakeholders, such as the Competition and Markets Authority, support the removal of a minimum ownership requirement entirely, while other stakeholders, including some legal firms, favour retaining the current rule of 51 per cent ownership by regulated professionals, so there was a divergence of views. In the response to the Scottish Government consultation, just over half—52 per cent—of respondents agreed that the 51 per cent majority stake rule for licensed legal services should be removed, compared with 48 per cent who disagreed. Some stakeholders have shifted their view on the issue slightly since the Scottish Government consultation, but our approach in the bill is to seek to strike a balance between the two views.

I will bring in my officials, as they have that history.

Yes, convener. The first section that has been highlighted with regard to ministerial powers is section 5, which allows for the regulatory objectives and professional principles to be amended to update them to reflect regulatory best practice. It was included in the bill in response to calls from stakeholders for a permissive and enabling framework of primary legislation that would be flexible enough to respond to future changes in the legal services market by allowing future amendments through secondary legislation. The Scottish Government will, however, accept the recommendation from the Delegated Powers and Law Reform Committee that the bill be amended to remove section 5, and we will lodge an amendment to that effect at stage 2.

The next section is section 8, on the creation of a category system for regulators. It seeks to create an inherent requirement for flexibility to respond to any changes or proposed changes to how a regulator operates or in its membership numbers, and it is intended to future proof the regulatory framework. The Scottish Government acknowledges that the DPLR Committee has recommended that the bill be amended to remove section 8 from the bill. Paragraphs (b), (c) and (d) of section 8(5) are necessary to ensure that the bill accurately reflects any changes to the regulatory framework in respect of new accredited regulators receiving approval, any regulator ceasing to operate or a change in a regulator’s name, as recently evidenced with the name change of the Association of Construction Attorneys.

We will—

I recognise a significant problem for the SLCC with regard to the fact that, each year, more than 300 solicitors do not respond to the request for files. We are working with the SLCC and looking at amendments to strengthen the bill so that it gets the information that it needs. Leanna MacLarty might want to come in on that.

I am open to any considerations that the committee would like to suggest at stage 1. However, at the moment, we are striking a balance with the powers that the SLCC already has. Was it regarding something in particular?