Chamber and committees

Amendment 572 seeks to reinstate the express provision contained in section 12 of the Legal Profession and Legal Aid (Scotland) Act 2007 on how the SLCC must notify the complainer and practitioner of a decision to uphold or not to uphold a service complaint. The removal of section 12 is one of a number of changes that are made by the bill to enable the SLCC to deal with complaints with greater flexibility. The intention is that service complaints will not all be required to be dealt with by the committee members, but by SLCC committee members and members of staff as appropriate and as laid down in the SLCC’s practice and procedure rules.

The bill at section 66 provides a proportionate and agile approach, which makes provision for the SLCC to produce such practice and procedure rules for dealing with service complaints. It is intended that requirements that are broadly equivalent to those set out in section 12 will instead be set out in the rules. There will be no lessening of the SLCC’s responsibility in that respect.

I thank Mr O’Kane for his comments. As I have always said, my door is open as we move to stage 3. I acknowledge what he said about the chicken-and-egg situation. I reiterate that section 67(3) will allow the Law Society or any other legal regulator to raise a complaint in its own name if it wishes something to be investigated, but I am happy to work with Mr O’Kane.

Amendment 347 agreed to.

Amendments 348 to 352 moved—[Siobhian Brown]—and agreed to.

Amendments 644 and 645 not moved.

Amendments 353 to 355 moved—[Siobhian Brown]—and agreed to.

Section 60, as amended, agreed to.

Section 61—Power of Commission to request practitioner’s details in connection with complaints

Amendments 356 to 361 moved—[Siobhian Brown]—and agreed to.

Section 61, as amended, agreed to.

Section 62—Services complaints: special provision for complaints against unregulated persons

Amendment 527 moved—[Marie McNair]—and agreed to.

Section 62, as amended, agreed to.

Section 63—Handling complaints

Amendments 362 to 369 moved—[Siobhian Brown]—and agreed to.

Section 63, as amended, agreed to.

Section 64—Annual general levy and complaints levy

Amendments 370 and 371 moved—[Siobhian Brown]—and agreed to.

Section 64, as amended, agreed to.

Section 65—Unregulated providers of legal services: voluntary register, annual contributions and complaints contributions

The amendments in this group relate to and have been shared with the Scottish Legal Complaints Commission. They also align with the committee’s stage 1 recommendations.?

Amendment 319 will allow the SLCC to close a services complaint when a practitioner accepts a settlement proposed by the SLCC but the complainer does not.

The SLCC will also be able to decide either not to initiate the investigation of a services complaint or to close a complaint, when it considers that the practitioner has offered the complainer a settlement that the SLCC considers to be fair and reasonable and when the SLCC is satisfied that the proposed settlement will remain available?for 28 days after the?decision not to initiate an investigation.??

It is intended that the SLCC may close the case where it learns that the practitioner has made a reasonable offer prior to the complaint being lodged with the SLCC, but which the complainer has refused. The amendment is intended to speed up the redress process. The intention is for the power to be used where the practitioner has made an offer that is unlikely to be exceeded by a full determination of the complaint.

Amendment 481 is a consequential change.

Amendment 331 will apply where the SLCC upholds a services complaint against a practitioner. Where the practitioner was a partner of a firm at the time when the service was provided, it will allow the SLCC, when upholding a services complaint, to give direction to take steps to redress the complaint to the practitioner’s firm instead of to the practitioner. Amendments 332, 333 and 334 are all consequential to that.

Amendment 450 seeks to increase the transparency and amount of information that is contained in the SLCC’s annual report. It will ensure that the annual report contains details of the work of each review committee and of the steps taken to ensure that each review committee is able to act independently of the SLCC when considering and determining each application for review. In addition, when preparing the annual report, the SLCC will be required to consult with the Lord President, the independent advisory panel of the SLCC and each category 1 and 2 regulator.

I ask members to support all the amendments in the group, and I move amendment 319.

Amendment 503 provides that, where a solicitor holds a practising certificate subject to conditions, they must give the Law Society six weeks’ notice of their intention to apply for a practising certificate. The Law Society will then have discretion to grant or refuse the application, or to issue a certificate subject to conditions. Those conditions can be varied or removed, or further conditions imposed, after giving the solicitor the opportunity to make representations. Failure to comply with a condition may be treated as professional misconduct or unsatisfactory professional conduct on the part of the solicitor.

In addition, amendment 503 will insert proposed new section 15A into the 1980 act to give the Law Society similar discretion at any time to vary, remove or impose any conditions in relation to a practising certificate in other cases where they consider it to be in the public interest to do so, or for the protection of the public. Similarly, failure to comply may result in a finding of professional misconduct or unsatisfactory professional conduct. The changes will also help to protect those who use legal services by strengthening the Law Society’s ability to suspend a solicitor’s practising certificate in cases where it considers it necessary to do so in the public interest, or for the protection of the public.

Amendment 504 will introduce a new power for the Law Society, where a solicitor has been suspended for charging excessive fees, to terminate their suspension on its own initiative, and amendment 505 will introduce a similar new power where a solicitor has been suspended for failure to comply with accounts rules.

As we come to the end of stage 2, I want to thank members for their consideration and engagement thus far. I want to move swiftly to stage 3, so my door remains open to members who wish to discuss the bill ahead of the final stage.

I ask members to support the amendments in the group.

I move amendment 503.

Amendment 503 agreed to.

Amendments 504 to 507 moved—[Siobhian Brown]—and agreed to.

Amendment 508 not moved.

Amendments 509 to 520 moved—[Siobhian Brown]—and agreed to.

Schedule 3, as amended, agreed to.

Sections 88 and 89 agreed to.

Section 90—Ancillary provision

Amendment 521 moved—[Siobhian Brown]—and agreed to.

Section 90, as amended, agreed to.

Section 91—Interpretation

Amendments 522 and 523 moved—[Siobhian Brown]—and agreed to.

Amendment 641 not moved.

Section 91, as amended, agreed to.

Sections 92 and 93 agreed to.

Long title agreed to.

The policy intention behind my amendments in this group is to create clear rules for the SLCC when investigating a handling complaint. The rules will be available to relevant professional organisations and consumers, which will increase the transparency of the complaints process.

Amendments 376 to 378, 380, 383 and 384 all make changes relating to the rules about the SLCC’s practice and procedure in dealing with complaints, including altering what such rules must include provision about.

Amendments 375, 385 and 528 are minor and technical tidying-up amendments, and amendments 379 and 382 are consequential.

The SLCC supports the amendments in the group. I therefore urge the committee to support the amendments.

I move amendment 528.

Amendment 528 agreed to.

Amendments 375 to 385 moved—[Siobhian Brown]—and agreed to.

Section 66, as amended, agreed to.

Section 67—Conduct or regulatory complaint raised by relevant professional organisation

Amendments 386 to 390 and 529 moved—[Siobhian Brown]—and agreed to.

Section 67, as amended, agreed to.

After section 67

Amendment 530 moved—[Siobhian Brown]—and agreed to.

Section 68—Conduct complaints: consideration by relevant professional organisations

Amendments 531, 392 to 394 and 532 moved—[Siobhian Brown]—and agreed to.

Section 68, as amended, agreed to.

The amendments in this group are largely technical. The main amendment is 315, which, at the request of the SLCC, puts a matter beyond doubt by expressly providing that the SLCC can initiate a conduct or regulatory complaint. Amendments 314, 317, 320, 356, 381 and 479 are consequential on that change.

Amendment 313 is a minor amendment to ensure consistency of language.

Amendment 318 is a minor change that is consequential on the removal from the 2007 act of section 2(4), which relates to premature complaints, in favour of the SLCC covering the issue in its rules instead.

Amendment 492 and the related amendment 330 make a technical change to the bill to write out the necessary modifications of sections 48 to 52 of the 2007 act, so that regulators can use those in connection with the investigation of a regulatory complaint in addition to a conduct complaint.

Amendment 493 corrects a cross-reference.

Amendment 362 changes the title of section 23 of the 2007 act to better reflect the content of the revised section, following amendment by the bill, to include reference to handling complaints, which are complaints about the handling of conduct and regulatory complaints.

Amendment 363 allows the SLCC to investigate the handling of a conduct or regulatory complaint by a relevant professional organisation after the six-month expiry deadline where it is considered that there have been exceptional circumstances.

Amendments 364 and 365 are minor and technical amendments. Amendments 366 to 369 make minor procedural changes to the consideration of handling complaints by the SLCC. Amendments 370 and 371 correct typographical errors, and amendment 449 corrects an incorrect cross-reference. Amendments 451 and 460 update cross-references to other provisions of the bill, and amendments 474 to 477 make further consequential changes. Amendment 471 sets out what decisions the Scottish Solicitors Discipline Tribunal is required to publish and provides it with the flexibility to publish any other decision that it feels is necessary.

Each of the following remaining amendments in the group are minor correcting technical or consequential amendments. They are amendments 480, 482, 483, 485 to 491, 495 to 498 and 500. I ask members to support the amendments in the group.

I move amendment 313.

Amendment 313 agreed to.

Amendments 473, 509, 510, 516 and 520 will make a number of technical amendments to the Solicitors (Scotland) Act 1980, following substantive changes that will be made to that act by other parts of the bill.

Amendment 501 will amend the 1980 act in relation to the Law Society’s function of keeping and maintaining a roll of solicitors, with changes including imposing requirements regarding the accessibility of the roll, reflecting modern practice and technology. Amendment 501 will also make similar changes to the 1990 act.

Amendment 502 will allow that, where the tribunal decides not to restore a solicitor’s name to the roll, that solicitor can appeal the decision to the court. It also makes an equivalent provision relating to registered European lawyers and foreign lawyers.

Amendment 506 will allow the Law Society, subject to certain safeguards, to rely on a previous conviction being fact when investigating a discipline matter. That should prevent delay in conduct investigations.

Amendments 511 to 513 will make changes to schedule 4 to the 1980 act, which is on the constitution, procedure and powers of the tribunal. The main changes are about improving the complaints process and include: the introduction of a requirement that each solicitor member must have in force a practising certificate when appointed; a new requirement for a copy of every decision by the tribunal to be sent to the commission; and a duty on the Law Society to give effect to that decision.

Amendment 514 will allow that, where the tribunal dismisses a complaint of professional misconduct on the part of a solicitor, or of failure on the part of an authorised legal business before inquiring into the complaint, either the council or the complainer, as appropriate, can appeal the decision to the court.

Amendment 515 sets out that any decision of the court in relation to an appeal is final.

Amendment 517 will add to the Disclosure (Scotland) Act 2020 a list of offences that relate to the legal profession. That will have the effect of making convictions for those offences disclosable convictions under that act.

Amendments 518, 519 and 521 will make minor and technical amendments that relate to offences.

I ask members to support the amendments in the group.

I move amendment 473.

If I may, convener, I will just make a correction to something that I said.

Amendment 514 allows that, where the tribunal dismisses a complaint of professional misconduct on the part of the solicitor or of failure on the part of an authorised legal business before inquiring into the complaint, either the Law Society—not the council, as I said earlier—or the complainer, as appropriate, can appeal the decision to the court.

Thank you, convener.

Amendment 473 agreed to.

Amendments 474 to 478 moved—[Siobhian Brown]—and agreed to.

Amendment 640 not moved.

Amendments 479 to 497 moved—[Siobhian Brown]—and agreed to.

Amendment 650 not moved.

Amendments 498 to 502 moved—[Siobhian Brown]—and agreed to.

Amendments 322, 324 to 329 and 525 will amend new section 52B, on “Regulatory complaints: duty of regulator to investigate etc”, which the bill will insert into the Legal Profession and Legal Aid (Scotland) Act 2007.

Amendment 525 will allow, subject to notification requirements, relevant professional organisations to make a decision to discontinue an investigation of regulatory complaint or to reinstate the investigation of a discontinued regulatory complaint, but only if the organisation considers that it is in the public interest to do so. Amendments 322, 323, 325, 329, 386 and 387 will make minor technical corrective changes.

Amendments 324, 326 and 327 will place additional requirements on relevant professional organisations in respect of what they must include in their report of the determination.

Amendment 328 requires relevant professional organisations, in considering what action to take, if any, to take into account any decision taken by the SLCC in respect of a services complaint against the practitioner where that complaint arises from the same matter to which the regulatory complaint relates.

Those amendments are the outcome of engagement between the Law Society of Scotland and the Scottish Legal Complaints Commission.

Amendments 388 and 390 will alter new sections 33A and 33B of the 2007 act, as inserted by the bill. The new sections allow relevant professional organisations to investigate conduct or regulatory complaints arising from their regulatory monitoring without first sending them to the SLCC. The amendments require the relevant professional organisation, in either a conduct complaint case or a regulatory complaint case, to be satisfied that, if the matter were referred to the SLCC, it would be considered by the SLCC to be either an eligible conduct complaint or an eligible regulatory complaint, respectively.???Amendment 389 is a technical amendment that is consequential to amendment 390.

Amendment 529 inserts new section 33C into the 2007 act, allowing relevant professional organisations to recategorise a conduct or regulatory complaint, subject to notifying the commission.

Amendment 530 amends section 33 of the 2007 act. It outlines what actions relevant professional organisations should take where it becomes apparent that a complaint may have been wrongly categorised as either regulatory or conduct during the investigation of that complaint or during the mediation process, and that it should instead be a services complaint. Where that happens, the amendment requires relevant professional organisations to suspend the investigation, consult the SLCC on the matter and send over the relevant material to allow the SLCC to take over the complaint. In addition, the relevant professional organisation must inform the complainer and the practitioner that the complaint will now be led by the SLCC.

Amendment 531 will give all relevant professional organisations the flexibility, subject to notification requirements, to discontinue a conduct complaint remitted to it or to reinstate a discontinued conduct complaint, but only if the relevant professional organisation considers it to be in the public interest to do so.

Amendment 393 will have the effect of requiring the relevant professional organisation, after investigating a conduct complaint, to make a written report to the complainer, the practitioner and the SLCC on any facts of the matter found by the organisation and on what action the organisation proposes to take, if any. If the organisation does not propose to take or has not taken any action in the matter, an explanation of why that is the case must be outlined in the report.???Amendment 392 is a consequential change.

Amendment 394 adds to section 47 of the 2007 act a requirement to the relevant professional organisation, in considering what action to take, if any, to take into account any decision taken by the SLCC in respect of a services complaint against the practitioner where that services complaint arises from the same matter to which the conduct complaint relates.

Amendment 532 is consequential and leaves out section 68(3) of the bill, which would have inserted new section 52A into the 2007 act in order to adopt the same approach as that taken in relation to regulatory complaints and new section 52B of the 2007 act, as amended by amendment 328.

Amendment 425 removes the provisions excluding the power of the Scottish Solicitors’ Disciplinary Tribunal to act where a solicitor or legal business has been convicted of economic crime. The Economic Crime and Corporate Transparency Act 2023 creates an exception for an economic crime offence, because it was considered to be more of a deterrent if a solicitor could be fined by the SSDT, even after having served a jail sentence. The policy intention here is that the same deterrent of an unlimited fine should apply across the board and that the special provisions relating to economic crime are unnecessary. It is, of course, a matter for the SSDT to take account of the facts and circumstances in each case in the exercise of its powers.

Amendment 428 outlines that, where the solicitor has been convicted of a criminal offence in relation to the subject matter of the SSDT’s inquiry, the SSDT must, when deciding whether to exercise a power under section 53(2) of the Solicitors (Scotland) Act 1980, have regard to the conviction.??The amendment also removes other amendments to section 53 of the 1980 act, on SSDT powers, made by the Economic Crime and Corporate Transparency Act 2023.

Amendment 435 provides the Court of Session with the power to create an unlimited for solicitors or authorised legal businesses in relation to conduct complaints.

Amendments 423, 424, 426, 427, 429 to 434, 436 and 437 are all minor and technical amendments to the 1980 Act.

I urge the committee to support all the amendments in this group, and I move amendment 525.

Amendment 525 agreed to.

Amendments 322 to 330 moved—[Siobhian Brown]—and agreed to.

Section 55, as amended, agreed to.

Section 56—Services complaint: sanctions

Amendments 331 to 334 moved—[Siobhian Brown]—and agreed to.

Section 56, as amended, agreed to.

Section 57—Commission decision making and delegation

Amendments 347 to 355 will make changes to section 60, which is on disclosure of information by practitioners to the SLCC and relevant professional organisations. Section 60 will amend section 17 of the 2007 act, which allows the SLCC in certain circumstances to require a practitioner to produce documents, with the exception of documents that are subject to legal privilege, relating to the complaint. Despite that exception, amendments 347 and 350 will allow the disclosure of such documents by a practitioner with the client’s consent.

Section 48 of the 2007 act enables a relevant professional organisation in certain circumstances to require a practitioner to produce documents, with the exception of documents that are subject to legal privilege. Amendment 353 will not prevent disclosure of such documents where the client consents to their disclosure.

Amendments 348 and 354 will expand the definition of “documents” to make it clear that it includes references to anything in which information is recorded in any form, in order to provide the SLCC with additional scope to compel from a practitioner provision of relevant documents that might be helpful in determining a case.

Amendment 349 will introduce a power for the SLCC to uphold a services complaint where a practitioner has failed without reasonable excuse to comply with the requirement to provide information in relation to a complaint. In the stage 1 evidence sessions, the committee heard that around 300 solicitors a year do not reply on time to a statutory notice, which accounts for around a quarter of the complaints that are received. Although court orders are an option, they are not always effective, and there are recent examples of solicitors being held in contempt for failing to comply with a court order. Amendment 349 will enable the SLCC to proceed to determine a services complaint, in the event that a practitioner who is subject to a statutory notice to provide information or documents refuses or fails to do so within the specified time and without a reasonable excuse. The amendment will require the SLCC to notify the practitioner and their employer of their intention to determine the case, giving them at least 14 days to provide a reasonable explanation or the information. The SLCC may also draw an appropriate inference from the practitioner’s failure to provide the requested information or documents within the required time.

Amendment 351 is a minor technical amendment.

Amendment 352 will require a relevant professional organisation, where it issues a notice requiring the production or delivery of documents directly to the practitioner, to also send a copy of the notice to their employing practitioner, where that is relevant, in order to ensure that they are aware that the request is being made.

Amendment 355 will allow the relevant professional organisations to determine a conduct or regulatory complaint, in the event that a practitioner who is subject to a section 48(1) notice to provide information or documents refuses or fails to provide the information or documents within the specified time and without a reasonable excuse. The relevant professional organisation is required to notify the practitioner and their employer of their intention to determine the complaint. The notice of intention must give the practitioner at least 14 days, or such greater period as the relevant professional organisation considers appropriate, to provide a reasonable explanation, or the information, before the case is determined.

Amendments 357 to 361 will make changes to proposed new section 17A that the bill will insert in the 2007 act. That will enable the SLCC to obtain a practitioner’s contact details from the relevant professional organisation for certain purposes, where it considers it necessary to do so in relation to a complaint.

Amendment 357 will extend the SLCC’s powers to enable it to request contact details from the relevant professional organisation relating to the practitioner, practitioner’s firm, employing practitioner or persons holding a specified role, or exercising a specified function, in the practitioner’s firm or for the employing practitioner.

Amendment 358 will provide that relevant professional organisations must respond to a request under section 17(1) without delay, rather than “as soon as practicable”.?The SLCC requested that change in order to prevent delays in a complaint being progressed.

Amendments 359 and 360 will add assessment of the eligibility of a complaint to the list of purposes for which the SLCC can request practitioner’s details from relevant professional organisations in connection with complaints.

Amendment 361 will make it clear that the relevant professional organisation is required to provide the contact details of practitioners that they hold, whether or not those practitioners are authorised to provide legal services. The amendment addresses the issue, which the SLCC identified, of trying to track down practitioners who have stopped practising since the complaint was made.

?I appreciate the intention behind amendments 644, 645 and 650, which are in the name of Paul O’Kane, and which seek to ensure that regulatory bodies have sufficient powers to investigate complaints. I understand that the amendments are intended to provide that a relevant professional organisation may seek information prior to lodging a complaint. Such proactive regulation is, of course, important, but I consider that the bill already allows for that, so I view the amendments as unnecessary.

Section 67(3) of the bill, which will insert proposed new section 33A into the 2007 act, allows the Law Society, or any legal regulator, to raise a complaint in its own name without being required to first raise the complaint with the SLCC. The regulator has the power under section 48 of the 2007 act to require information that relates to investigation of the complaint.

Amendment 355, which is in my name, will allow the relevant professional organisation to determine a conduct or regulatory complaint in the event that a practitioner, who is subject to a section 48(1) notice, fails to provide the requested information or documents within the specified time and without reasonable excuse.?

Amendment 531, which is also in my name, will allow the Law Society to discontinue a conduct complaint where they consider that it is in the public interest to do so.

Those measures seek to ensure that the Law Society and other legal regulators have open to them the appropriate mechanisms to properly investigate complaints.??Proactive regulation, which is already enabled by the bill, allows issues to be identified early, which can prevent harm to consumers or the public. The authorisation of legal businesses allows the Law Society to identify and address deficiencies early and take the necessary preventative action. Although in-house solicitors are subject to the Law Society’s practice rules, they are also subject to an internal review of their performance and to annual appraisal by their employer.

I hold concerns that Paul O’Kane’s amendments, as drafted, are overly broad and unrestricted. The granting of pre-complaint investigatory powers is not unprecedented, but must be exercised proportionately in order to maintain trust and to avoid undermining those who are being regulated.? It is entirely inappropriate for the Law Society to have powers that might interfere with the prosecutorial independence of the Crown Office and Procurator Fiscal Service, and the Lord Advocate. That concern has been raised with the Law Society.?

For the reasons that I have set out, I am unable to support amendments 644, 645 and 650, so I ask Mr O’Kane not to press his amendments.?If they are pressed, I urge members not to support them. I ask members to support all my amendments in the group.

I move amendment 347.