Chamber and committees

I do not intend to say too much more, other than that I think that this amendment is about ensuring that there is a provision in the bill to ensure natural justice—to ensure that people are informed about the reasons why decisions are taken. Given what we have just reflected on, there seems to again be a consensus that that is the right thing to do and that it is how we would want the system to continue to operate.

I am confused about what the difference is between ensuring that this is in statute and has a legal footing and simply putting it into the rules of the SLCC. The minister spoke about the importance of flexibility for the SLCC, but again I am not clear whether the intention would be that the SLCC would continue to provide the reasoning for decisions and that any changes to that would be subject to consultation. I am not entirely sure how removing it from statute would provide more flexibility.

As with the previous amendment, I am keen that we ensure that there is a statement of intent in the bill and that we ensure that those rules are followed because they are in statute rather than in a flexible process that would then be subject to the consultation that the minister has outlined.

On that basis, convener, I press amendment 572.

It is my intention to support most of the amendments in the group. However, I am sure that many members of the committee share my concerns about the provisions in amendment 450 that will require the SLCC to consult on its annual reports before they are laid. Given that annual reports are retrospective by definition, it seems slightly odd to have included that provision, which I think might add to the SLCC’s bureaucratic workload. I am not aware of similar organisations having to undertake such a requirement.

In winding up, perhaps the minister might focus on her intention for the requirement to consult on a retrospective report and on whether she agrees with concerns that have been raised on the requirement. Perhaps she might consider making a firm commitment to support amendments at stage 3 to remove the requirement, which would allow us to move forward today and make the other improvements to the annual report that are contained in wider amendments.

At present, I am minded to oppose the amendment, but that might depend on the minister’s responses on the requirement to consult.

My thoughts today are with the families whose lives can never be the same. Katie Allan grew up in East Renfrewshire, as I did, and we have all heard that she did so in a family, a school and a community where she was loved and had the fullness of her life and potential ahead of her.

The findings should make us ashamed that Katie, William and so many others were failed. The cabinet secretary knows that Katie’s family has fought for a long time for investment in safer cells, and particularly the removal of ligatures. She knows of the backward steps that they have experienced and of their battle to access information.

However, I note the clear recommendations that have been made on that issue and the cabinet secretary’s agreement in principle with them in her statement. Can she outline clearly a process for the SPS to deal with ligature risks across the estate and a timeline for doing so? What capital investment will support that work?

The cabinet secretary and I have discussed in committee our changing demographics, the demand-led nature of social security and the fact that it is vital that social security operates flexibly, with efficient systems to reduce waste. We need to be sure that spending on information technology systems, overpayments and errors is as minimal as possible in order to free up money for the funding that goes into our constituents’ pockets. Given that, how does the cabinet secretary respond to recent reports that overpayments of £1.1 million in just three months were written off as official errors by Social Security Scotland? What action is she taking alongside the agency to make sure that we focus on reducing that waste and fraud in order to protect social security claimants?

I put on the record my thanks to the many stakeholders who provided briefings in advance, some of which were referenced by Tess White, including the Law Society of Scotland, the SLCC, the Faculty of Advocates and others. I also thank them for producing their briefings quickly since last week’s lodging deadline.

I do not support Tess White’s amendments in this group, although I appreciate that they are probing in nature. They allow us a useful opportunity to discuss and debate why the Government alighted on maintaining the current divisions for regulatory duties, rather than establishing a new regulator. However, I do not support the proposals in the amendments to shift all complaints proceedings to the SLCC, for many of the same reasons why the committee arrived at its view in considering the evidence that was presented to us at stage 1.

We recognise that there are significant challenges in the complaints system. I think that everyone acknowledges that it is complex and that it can be inefficient and slow, which can create a bad experience for consumers of legal services who wish to raise complaints. Through its genesis, the bill tries to go some way in addressing some of those issues. I and many other stakeholders that I have spoken to want change to be effected sooner rather than later. However, to go through a lengthy process that would last for many years and be at public expense in order to transition the functions that are currently conducted by the Law Society of Scotland and the Faculty of Advocates to a single body could result in significant delays for consumers, who need improvements right now.

Even if we had chosen to consider what is proposed in the amendments at an earlier stage of the bill’s conception, we would not have got some of the noticeable benefits that are now coming through. As I said, putting new structures in place and placing new duties on the SLCC would require a breadth and depth of reform and change to the SLCC, not least to its resource and staffing.

I am interested in the fundamental principle that membership organisations should have an obligation to monitor, investigate and, if necessary, take action on their members’ conduct. That is, in essence, what we are debating today. We should ensure that organisations such as the Law Society feel that they can exercise their duty to look after and ensure the highest conduct standards of their members, in much the same way as we would expect regulation of members of other bodies in public life. I posit that political parties are an example of where the regulation of members is ceded to the party.

I do not want to go on at length, because many of these issues have been debated already and covered in the stage 1 report. However, there are many reasons why the broad solutions to the challenges that are faced in legal services regulation right now, which are alighted on in the bill, are preferable to the ones that are outlined in Tess White’s amendments.

I do not want to go over old ground, so I will leave my comments there. However, if we return to the issue at stage 3, it will be important to continue to recognise the things that I have outlined.

I am grateful for the opportunity to speak on the group and on my amendment 639 in particular. I thank the minister for her comments and for accepting the amendment. It essentially does what everyone’s amendments in the group intend to do, which is to ensure that there is fair recovery of costs and a polluter pays principle in regard to the approach taken when additional costs are incurred in pursuit of regulatory objectives. Obviously, the issue relates to the behaviour of certain individuals and the way that the Government can legislate to support the reclamation of costs.

It is clear that Tess White’s amendment and a number of amendments in this group merit further discussion when we progress to stage 3, but agreeing to my amendment at this stage would begin that process.

Before we move into lengthy consideration of the amendments that are before us, I thought that it would be helpful to put on the record some general comments about this section and the ministerial powers that apply to the amendments in this group, so that I will not have to repeat my comments in any of the subsequent groupings.

For those of us on the committee who heard the stage 1 evidence, it was clear that the bill did not start out in a place of consensus. There was much concern about the warnings that came from respected organisations, including the Law Society, the Faculty of Advocates and the senior judiciary, that were in many ways unprecedented. Such was the level of concern about the threat to the independence of the judiciary from the imposition of ministerial powers that it seemed that the bill was, at points, quite significantly flawed and that it would require subsequent amendments, such as those that are before us. In saying that, credit should be given to the minister and the team of officials for the work that they have done on the amendments over many months, and for their work with stakeholders to sufficiently address risk.

I also thank the minister for her constructive engagement with me in listening to many of the concerns about those aspects of the bill and, more widely, for offering a collegiate way of working to address some of the issues. I hope that we will continue with that collegiate approach throughout stage 2 consideration and into stage 3.

I still have some areas of concern in the bill more widely but it would not be appropriate for me expand on those now. To avoid dragging on for too long, I just confirm my support for amendments in the group and say that I am keen to continue the debate as we move through the remaining amendments. I am grateful to you, convener.

My amendments 543, 544 and 545 all seek to deal with the issue of waivers by leaving out the relevant sections of the bill. The powers contained within sections 21, 22 and 24 seek to provide for powers that already exist and are conferred under the 1980 act, with the ability to waive most of the existing practice rules. That is currently in force and is deemed to work well.

I have listened to what the minister has said and I am looking at the motivation behind the Government’s desire to make changes to the powers for special rules, but there is a lack of clarity in relation to concerns or issues that have been raised about waivers and how the system works at the moment.

Regulators that currently operate a waiver system go through numerous checks before a waiver is granted. Practice has been built up over many years of experience and is overseen by dedicated committees conducting due diligence on applications for waivers.

In understanding the concerns about the system that the Government is creating in the relevant sections, it is important to understand that waivers are requested and granted most often when that is of benefit to clients and there is a need to move quickly, which is the theme that has emerged from our desire that the bill help to speed things up for people who seek support and redress.

The bill might create a lengthy process that has to run through other bodies, including the Lord President and Scottish ministers, before a waiver can be granted. That might add to the system inefficiency and complexity that do not exist at present. I have not heard compelling arguments for introducing that system. Processes can add time and cost, and can be to the detriment of the consumer, who will bear the consequences.

There are further issues with the system that the Government envisages. In most cases, the system might not work if waivers are time limited, because a rule must either apply to situation and transaction, or it must not.

Additionally, waiver decisions often refer to an applicant’s personal information, which can be commercially confidential, such as information about operations or practice and what is going on in a business. It would therefore be difficult, at best, to publish waiver decisions, as is envisaged by the Government. At worst, having to redact them before they are published might consume significant time and resource. I come back to the argument about the length of time that it might take, when we are seeking a quicker process.

I am not convinced that there has been much evidence that the current system is broken or that it is being misused. Perhaps we should not seek to fix problems that do not exist. I hear what the minister has said and I hear her challenge to me, but I wonder whether, in summing up, she might say more about her position on special rules and consider what more we might do in that area.

I make just a brief comment to thank the minister for her amendments in this group. She will be aware that this is one area that exercised many witnesses at stage 1, and I raised concerns about the need to strengthen and alter the provisions contained in these sections throughout the stage 1 process, as other colleagues did; I also did so in my meeting with the minister.

It is important that consumer protection is at the forefront of our minds in ensuring that unscrupulous individuals who seek to misrepresent themselves as lawyers or solicitors, or as holding the public office of advocate, are held to account, and that we ensure that there is a safeguard against their doing so. I believe that the Government’s amendments in the group will provide a solution to that and, indeed, to the concerns that we heard in evidence. I will support the amendments in the group.

My principal amendments in this group deal with the issue of registered foreign lawyers and the regulation of legal businesses therein. Much of the content and purpose of my amendments is similar to what Pam Gosal has outlined and relates to how we ensure that there is no detriment to businesses that are trying to operate in Scotland. For the benefit of the committee and the minister, I do not intend to repeat too much of that.

However, the issue of registered foreign lawyers more generally has been raised with me throughout the process. Although many come from qualifying jurisdictions within and beyond Europe, we must reflect jurisdictions in which relevant law firms provide legal services internationally and where many of their solicitors are in the UK, either in England and Wales or Northern Ireland. Evidently, there will be much cross-border work with Scotland, so we want to avoid a situation in which that would not be possible because of the definition of a registered foreign lawyer. It is important that we recognise that, and that safeguards are in place in relation to some of the issues that have been raised.

A foreign lawyer can be registered only if they are to be an owner of a practice where at least one other qualified lawyer is able to practise in Scotland. They cannot practise as sole practitioners or provide legal services that are reserved to those who are qualified in Scotland. I heard what the minister said about guidance. It would be useful to have those definitions in statute and to be clear about what we are trying to achieve.

As I said, Pam Gosal’s amendments are similar to mine but, on the basis of the advice that I have taken, I think that mine will move forward in the way that we are trying to advance. However, I appreciate that there is some duplication.

On the other amendments in the group, I recognise the minister’s offer to try to work together to look at how we might broaden the scope of regulation. I am happy to meet her on those issues ahead of stage 3 to see how we might further develop the bill, as we discussed earlier this morning.

More broadly, the minister has done important work through the amendments. I believe that the majority of the amendments in the group make good improvements to the bill, so I will support them. However, we need to be clear on the issue of registered foreign lawyers to ensure that there is no detriment, particularly on cross-border issues.