Chamber and committees

Yes.

I will come to that further along, but as I said when we debated the previous group, the SLCC will have to go to consultation with the Lord President, Scottish ministers and consumer panels on the process that will be set up.

One of the main points is that the provision will also give the SLCC flexibility in future. As we saw at last week’s meeting, a lot of amendments and groups were about strengthening the legal process, but as the committee has acknowledged in its recommendations, we must also ensure that the voice of the consumer is not lost, and we need to simplify the process for their access to justice. Therefore, there will be no lessening of the SLCC’s requirements in that respect. Furthermore, the SLCC has a duty to exercise its decision-making functions, in accordance with administrative law principles, including around the notification of decisions.

In making or varying these rules, the SLCC will be required to consult the Lord President, the professional bodies, the consumer panel, other consumer groups and groups that represent the interests of the legal profession. The SLCC will also need to publish the rules. I note Mr O’Kane’s concerns that, in the future, the SLCC could decide not to publish the reasoning behind its decisions. That would have to go to consultation with the Lord President and all the legal professional bodies as well, and I consider that that provides sufficient checks to ensure that the committee’s concerns would be addressed.

Amendment 572 proposes to reintroduce prescriptive provision into the legislation, which risks the improvements in the bill that would deliver efficiencies. The SLCC is supportive of the Scottish Government’s approach. I therefore ask members not to support Mr O’Kane’s amendment 572.

I thank Maggie Chapman, and I acknowledge the concerns that the consumer panel has raised. We would not be able to get involved in the SLCC process—it will be up to its independent process to look at how the panel should be funded—but I am happy to work with the SLCC on that as we move forward.

Amendment 312 agreed to.

Section 52—Receipt of complaints: preliminary steps

I am pleased to have worked with Stuart McMillan on his amendments in this group, which amend the Legal Profession and Legal Aid (Scotland) Act 2007 to provide a more flexible power than currently exists for the SLCC to disclose information for the purpose of confirming receipt of a complaint, allowing the SLCC to proactively release information and providing the SLCC the ability to disclose the outcome of a complaint where it is in the public interest to do so. I support Stuart McMillan’s amendments 524, 526, 527, 533 and 534.

I turn to my amendments in this group. Amendment 535 will provide the power for the Law Society of Scotland and other legal services regulators—relevant professional organisations—to disclose information about complaints that they are investigating, but only if they consider it to be in the public interest. The information may identify a practitioner or a firm to whom the complaint relates, but it may identify the complainer only with the complainer’s consent.

Amendment 536 will amend section 52 of the 2007 act to allow information to be disclosed for the purpose of enabling or assisting any regulatory body that is specified for this purpose in regulations.

Mr O’Kane’s amendment 536A seeks to amend my amendment 536. The Law Society has referred only to paragraph (b) of section 52(3) of the 2007 act. We agree that that allows disclosure in cases where the body is compelled to disclose it. However, paragraph (a) of section 52(3) provides that information may be disclosed

“for the purpose of enabling or assisting the relevant professional organisation to exercise any of its functions in relation to such a complaint”.

The reference to functions includes duties and powers and therefore includes the power of a regulator under new section 51A to disclose information. Amendment 536A is therefore unnecessary, and I would urge members not to support it.

Amendment 338 will remove subsection (2) from section 53 of the bill, which amends section 13 of the 2007 act, which relates to service complaint reports, in consequence of the removal of section 13 by Stuart McMillan’s amendment 524.

Amendment 484 ensures that qualified privilege applies to information that the commission may disclose about complaints in consequence of amendment 533 in the name of Stuart McMillan and amendment 535 in my name.

Amendment 494 ensures that qualified privilege applies to information that regulators may disclose about complaints in consequence of amendment 535.

I therefore ask members to support my amendments, and the amendments lodged by Mr McMillan.

I will comment on Mr O’Kane’s contribution regarding amendment 536A. I understand and appreciate his intentions. In order to clarify the position and to address the concerns that he raised, I would be happy to adjust the explanatory notes to the bill to refer to the disclosure of information under section 51A of the 2007 act as an example of regulators’ functions mentioned in section 52(3)(b) of the 2007 act. I would be happy to discuss that with the member in advance of stage 3, if that would be helpful.

Thank you, convener. I know about Mr O’Kane’s concerns in that regard, which have also been raised by the SLCC. I am happy to discuss with him how we can move forward on the issue before stage 3, although I cannot commit to specifics at this stage.

Amendment 319 agreed to.

Section 55—Regulatory complaints against authorised legal businesses

Amendment 320 moved—[Siobhian Brown]—and agreed to.

Amendment 573 not moved.

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.