Chamber and committees

I will draw the debate to a close by thanking all the members for their views today. Of course, I will consider carefully everything that has been said in the debate.

Once again, I thank the committee that has considered the bill, and I thank all those who provided and gave evidence at stage 1 for their careful consideration and views. It is fair to say today that there has been a wide-ranging debate, and the different views and opinions among members have been very well expressed.

Esther Roberton said in her report:

“I believe that professional bodies providing both regulatory and representative functions can lead to the perception that the two roles are in conflict. It is this perception that risks compromising public trust.”

Legal regulators view that there is no genuinely true conflict of interest, nor any risk of the perception of one, once one properly understands the regulatory process. However, perception has a powerful influence over opinion, and the approach that is outlined in the bill will do much to deliver the priorities of maintaining the independence of the legal profession and strengthening the regulatory duty to work in the public interest. I want to ensure that the bill strikes the right balance between the various interests.

It will be to everyone’s benefit if greater trust can be developed in the integrity of the regulatory framework for those providing legal services. The bill seeks to address concerns from consumer groups that legal regulation does not offer sufficient accountability to protect the public and consumer interests by improving the transparency and accountability of legal services regulations in Scotland.

I have a few things to address in reflection of today’s debate. A few members have reflected on how we got here today. This issue has a history in Parliament of nearly 10 years. Many members have not been here for the entirety of that time and are quite new to the Parliament, so it is important to give a bit of context and history.

Back in 2015, there were calls for reform from stakeholders. The Law Society of Scotland set out reform proposals, as did the Scottish Legal Complaints Commission. The Scottish Government then established an independent review to develop views on potential reforms, which was carried out by an independent panel led by Esther Roberton. “Fit for the Future: Report of the Independent Review of Legal Services Regulation in Scotland” was published in October 2018 and made 40 recommendations. Its primary recommendation was that

“There should be a single independent regulator for all providers of legal services in Scotland”.

In June 2019, the Scottish Government published its response to the Roberton report. The Government’s analysis established that, although many of the report’s recommendations were widely supported, views from the legal and consumer landscape on the primary recommendation that there should be an independent regulator were very polarised.

As a result, the Scottish Government made a commitment to hold a public consultation based on the Roberton report’s recommendations, with the intention of seeking to build consensus on the way forward for the much-needed reform. The Scottish Government worked collaboratively with stakeholders from the legal and consumer perspectives to design the consultation. In seeking to build agreement around the proposals for reform, the consultation contained two alternative, viable models of regulation in addition to the Roberton report’s primary recommendation.

The analysis of the consultation showed that views were evenly split between support for and opposition to an independent regulator. However, in many other areas there was broad agreement. The analysis highlighted that all respondents, regardless of affiliation, shared a common aspiration for any future model to be transparent, open to public scrutiny and efficient to ensure that justice remains accessible to all. The bill will allow a proportionate approach that seeks to balance and deliver the key priorities of the stakeholders and the much-needed reform.

I appreciate Jeremy Balfour’s comments about the engagement prior to the bill being published. I assure him that I am keen to engage with all members and stakeholders. I am happy to look into the possibility of the DPLR Committee being involved in an evidence session when the stage 2 amendments are lodged.

I know that some of the provisions in the bill have led to differing views, including within the committee, and it is that balance that the Parliament needs to consider if we are to deliver the significant improvements to the regulation of legal services that are really needed.

I thank John Swinney for his intervention.

Following the introduction of the bill, and having carefully considered the responses to the committee’s call for views, I acknowledge the concerns that have been raised about the role that was placed on the Scottish ministers, and I have committed to addressing those at stage 2. The provisions are only one part of the bill and are based on existing legislation. Nonetheless, I have sought to address those concerns, and my officials have been working closely and collaboratively with stakeholders and, in particular, the Lord President’s office and the Law Society of Scotland.

I apologise, Presiding Officer.

There will, for the first time, be a power to review the regulator’s performance and ensure their compliance with their statutory duties and the regulatory objectives. Regulators will be required to submit annual reports on their performance, as category 1 regulators.

Would the member acknowledge that I have recognised the point about the ministerial powers and am engaging to remove them from the bill? I have written to the committee about that.

Would the member acknowledge that ministers have had a role in legal regulation in Scotland since 1990? In 2007 and 2010, Parliament placed further functions on Scottish ministers in respect of legal services regulation. Having said that, I understand the concerns that have been raised and I will be lodging amendments. I simply note that there have been ministerial powers previously.

I will come to that further on in my speech, if I may.

A regulator will also be required to create a register of all its members that is “free” and “accessible” to the public, thereby enabling consumers to access useful information about legal service providers. A total of 94 per cent of respondents to our consultation on the bill agreed that it was “important” that the regulatory framework should

“Enable access to justice including choice and diversity”.

The bill includes proposals to increase access to justice by removing restrictions on third sector organisations directly employing solicitors to support their clients in court proceedings. Scottish Women’s Aid welcomed that measure, advising that it

“will assist ... in securing dedicated and innovative provision of domestic-abuse competent legal services for women, children and young people experiencing domestic abuse.”

Through the bill, we are introducing regulation of legal businesses, which will provide greater powers of oversight for regulators and additional protections and consistency for consumers. In addition, the bill will ease ownership requirements for alternative business structures and allow innovation, such as community ownership of legal businesses, which will benefit the legal sector in attracting investment and in succession planning. Those measures are intended to support and promote sustainable legal services that benefit citizens. Some 93 per cent of respondents to our consultation supported those principles.

The bill will also protect members of the public against wrongful use of the title “lawyer” by people who seek to deceive consumers and imply that they are fully regulated, with the protection that regulation affords.

The bill will expand the remit of the statutory consumer panel and give it a role in undertaking research to provide good-quality evidence-based advice to the sector in order to ensure that decisions are shaped around the needs of the various consumers of legal services.

I acknowledge that the bill has attracted differing views from stakeholders, as did the consultation ahead of the bill. We have had to strike a balance with those differing views as we aim to modernise the regulatory system.

Does the member acknowledge that I have been advised that it would be inappropriate to share the amendments ahead of stage 2? Does he agree that I have committed that, at stage 2, I will share the amendments with the committee?

I believe that, if we all work constructively across the chamber, we will end up with a bill that is appropriate, proportionate and effective. I therefore urge the Parliament to agree to the principles of the bill.

I have a lot to get through, so I will come back to the member if I have time.

Regarding the complexity of the Scottish legal complaints system, it is important that we highlight what the Scottish Legal Complaints Commission has said in the briefing that it sent to all members:

“the Bill is a very welcome and significant step forward in a number of areas, and we now want to see it delivered and implemented to realise those benefits for consumers and lawyers alike”.

I turn to Katy Clark’s comments regarding the sections where ministerial powers will be removed from the bill—they are sections 5, 8, 20, 29, 41, 35 and 49. In recognition of the comments from the senior judiciary, we intend to lodge amendments that will transfer the powers in sections 19 and 20 to the Lord President and to continue to explore with the office of the Lord President what further adjustments will be made.

Stuart McMillan has done a lot of work on the topic of McClure Solicitors. I am aware of the issues that a number of families are facing as a result of that firm going into administration. Although I cannot comment on individual cases, the Scottish Government has taken proactive steps to strengthen the legislation in respect of legal regulation, which will help to mitigate the effect of such situations in the future. If a client is dissatisfied with the service or conduct of a Scottish solicitor, they have the right to complain through the Scottish Legal Complaints Commission.

I return to a few points that Liam Kerr raised during the debate regarding the Law Society, I think in an intervention on Karen Adam regarding some of the powers that it thought had been left out of the bill. I can confirm that we will be introducing amendments at stage 2 that will make many of the changes that the Law Society has been seeking, especially regarding the conduct complaint process. We are working very closely with the Law Society on that.

Liam Kerr was also asking for examples of how the powers in sections 19 and 20 of the bill might have been used previously. The current lack of transparency in relation to legal services regulation makes it difficult to say when such powers may have been used previously. It may be helpful to reflect on the comments that were made to the committee by Tracey Reilly of Consumer Scotland. She highlighted that, if the powers were removed entirely, primary legislation would be the only recourse if the system was not delivering the regulatory objectives.

For my part, I will continue to engage with stakeholders and members to address any concerns that are raised with me as we go through the parliamentary process. I am committed to working constructively with the committee and members ahead of stage 2, and my door is always open to anyone who would like to discuss the bill.