Chamber and committees

I will bring in Leanna MacLarty to answer that.

As the committee has already heard, there were vastly differing views on Esther Roberton’s primary recommendation. That was backed up by a consultation that showed that views were evenly split between support and opposition to it. However, there are many areas where there is broad agreement between the stakeholders.

The bill takes a proportionate approach that seeks to balance and deliver stakeholders’ key priorities. It requires that all legal service regulators exercise regulatory functions independently of other functions or activities and introduces greater transparency and accountability of legal services regulation.

On the whole, it was simply due to both sides—the legal profession and the consumers—having polarised views on the recommendation for an independent regulator that the decision was made not to go down that track.

Back in 2015, the Law Society approached the Scottish Government on the need for reform, and that is when Esther Roberton was asked to carry out an inquiry and produce a report. After the report was published, we saw polarised views from the legal sector and the consumer. I do not believe that there is any way that the bill could move forward with both sides on board 100 per cent, because there will always be a conflict between the legal sector and the consumer. It is about trying to find the fine balance between the two, so that we can bring in good legislation to improve things for the legal sector and for consumers.

The bill has a huge, long history that dates back to before I came into my post in April. There has been a lot of work by officials throughout the many years of the bill’s development, and the work is on-going. It has evolved, and we have to continue to listen. We know that opinions are polarised in some areas, which is why I am keen to listen to all stakeholders’ views. My officials and I will work collaboratively with all the stakeholders and the legal profession.

I know that the devil is in the detail and that it is not ideal for the committee not to have the detail of the amendments that we will lodge at stage 2. As Maggie Chapman said, however, the situation is unprecedented in that they will not be drafted by the lawyers until agreement is made with the legal profession, the Lord President’s office and the stakeholders. I am keen to share all the information with the committee as we progress, and to get agreement as soon as we are able to do so.

Thank you for that question. In transferring functions to the Lord President, we will be expanding the current oversight role in legal services regulation. That does not create a new function for the Lord President but expands a role that already exists and operates without any concern about politicisation.

Although the senators indicated to the committee that they cannot agree to any transfer before they have seen the details, it may be helpful to remind members of the senators’ written response, which showed that the principle of transferring the review powers to the Lord President was acceptable and that that should be done.

In respect of the consumer voice, the bill expands the remit of the consumer panel, giving it a role in undertaking research to provide quality, evidence-based advice in the sector, in order to ensure that decisions are shaped to meet the needs of the different consumers of legal services, including individuals, businesses and the third sector. The consumer voice is essential in legal services regulation and we are reflecting on the comments of stakeholders that represent the consumer interest in relation to how we might strengthen the bill in that regard.

I think that we got that balance right. One of the main aspects of the bill is to simplify the process for consumers. Leanna or Jamie, with their deeper understanding of what happened with the bill before I took over, can come in on the history.

The Legal Services Board is accountable to Parliament through the Lord Chancellor, who is a UK minister with a number of statutory roles in relation to the board and regulation of legal services. Our bill contains provisions to introduce a role for the Scottish ministers in reviewing and protecting regulation of legal services but, as the committee is aware, we will lodge amendments to transfer the functions to the Lord President and remove responsibility from the Scottish ministers.

When the bill was introduced back in April—with the call for views following in August—I was conscious that it was viewed as being all about the Scottish ministers making a power grab. Officials have therefore been looking at lodging amendments so that the bill does not focus so much on the powers of the Scottish ministers. There could instead be more of a focus on provisions on which there is general agreement among stakeholders and the legal profession.

I return to the Scottish Government’s response to the consultation analysis published in December 2022. We set out that

“there should be a process for intervention by Scottish Ministers in the light of concerns being raised on how and whether regulators are delivering their regulatory objectives and the operation of regulation in relation to public interest.”

When the consultation came out last year, the legal stakeholders were very positive because I think that they were focused on the possibility that an independent regulator would be proposed and it was not. At that stage, in 2022, there was no resistance to the Scottish ministers’ role; that came only after the bill was introduced in April 2023.

The proposed amendments are complex and we need to engage and get agreement with the Lord President, the Law Society of Scotland and all stakeholders. Until we have that agreement, we will not be in a position to get the lawyers to draft the stage 2 amendments. That work is on-going among officials, stakeholders and the Lord President’s office.

One of the main aims is to simplify the complaints process for the general public. The SLCC will remain the single gateway for all complaints against legal practitioners, although there will be a limited number of exceptions—for example, where a complaint is identified by a regulator.

In the consultation that we did, most respondents—87 per cent—agreed that the single gateway for all legal complaints should be retained. It was argued that a single gateway for all legal complaints is sufficient to bring clarity and transparency to the process for the profession and consumers and that it makes it simpler for consumers to access legal advice.

The judiciary are raising important constitutional principles about the separation of powers between the Executive, the legislature and the judiciary, and we recognise the absolute necessity of those principles. It is important to be clear about what the bill does: it does not impinge on the independence of the legal profession or the judiciary. I wrote to the committee on 29 November to make clear my intention to amend the bill to address the issues.

The bill builds on the existing legislative framework, which provides a role for ministers to act in the public interest to ensure that regulation is being carried out effectively and transparently. The bill adopts existing checks and balances that require the Lord President’s consent and parliamentary scrutiny of use of delegated powers to ensure that any action is in the interests of legal practitioners and the public.

Ministers have had a role in legal regulation in Scotland since 1990. In 2007 and in 2010, Parliament placed further functions on the Scottish ministers in respect of legal services regulation. Having said that, we understand the concerns that have been raised, which is why we have committed to lodging amendments at stage 2, because we want the bill to strike the right balance for the various stakeholders.