Chamber and committees

With less than 18 months of parliamentary time left in this session, it sounds to me that that is another promise made by the Scottish National Party in its manifesto that will not be met. Broken promises have consequences, particularly for people in many local authorities across Scotland who are looking at having to introduce care charges for the first time for people who have physical and learning disabilities.

It also sits on the back of a litany of promises that were made to disabled people, including access to a changing places toilet fund; annual health checks for people with learning disabilities; the proposed learning disabilities, autism and neurodivergence bill; the human rights bill; and the ditched national care service. We have also learned today that £20 million of the community living change fund has been wasted or is unaccounted for. When will the minister and her Government finally deliver on the pledge to end non-residential care charges and rectify a long list of broken promises to Scotland’s disabled community?

I thank Jackson Carlaw for securing this annual debate, and for the partnership working that he has undertaken with me in helping to organise Holocaust memorial day commemorations in the Parliament this week. I urge members to attend the commemoration event on Thursday evening.

I know that it is important to many people across Scotland that we mark Holocaust memorial day, but, in particular, I know how important it is to the Jewish community, the majority of whom live in East Renfrewshire—as I do and as Jackson Carlaw does. It really is an honour to represent them, along with Jackson Carlaw.

As we have heard, this year, we mark 80 years since the liberation of Auschwitz-Birkenau. It was the largest of the Nazi death camps, where murder was carried out on an industrial scale simply because people were different. Millions of Jewish people, Roma and Sinti people, LGBT people, disabled people and others were murdered. As we have also heard this evening, when you stand in the watchtower at Birkenau, it is hard not to be absolutely horrified by the sheer scale of a place that was designed by human beings for the systematic murder of other human beings.

Over many years, I have had the great honour of meeting people who are survivors of Auschwitz-Birkenau and survivors of the Holocaust. As Jackson Carlaw alluded to, many of them came to Scotland after the horrors of the war ended and lived their lives just down the road from where I am sitting this evening. They went about their lives and made a huge contribution to post-war Britain. Many of them gave themselves in public service and helped to build up our communities. For a long time, many of them did not speak of their experiences in the Holocaust, but, later in life, many of them chose to do that. They chose to tell their story, as they have told me, so that future generations would know about the horrors and the inhumanity but also about the amazing stories of the resilience, the resistance and the righteousness of others.

I pay tribute to the many organisations that support and have supported survivors to keep those stories alive and to ensure that education continues. Those organisations include the Holocaust Memorial Day Trust, the Holocaust Educational Trust, Gathering the Voices, vision schools Scotland, the Anne Frank Trust and many others; I know that many colleagues will speak of their work this evening.

Tonight, we also remember the subsequent genocides that have occurred in Cambodia, Rwanda, Bosnia and Darfur and all those who give testimony and who support the commemoration of those genocides. Tonight, we reflect on the 30th anniversary of the genocide in Bosnia, and I want to pay particular tribute to Beyond Srebrenica, the organisation that does so much work to educate people about what happened in Bosnia, what happened in Srebrenica and how we learn from that and move forward.

As we have heard, and as I am sure that we will hear in further contributions from members this evening, all this work is vital, particularly as survivors of the Holocaust pass away and it falls to all of us to help to tell those stories. Antisemitism, Holocaust denial and the distortion of fact are on the rise. That has been brought into sharp focus recently by many research studies that show that too many young people in our country cannot name Auschwitz or any other death camp and do not have a grasp of what happened in the Holocaust.

The theme for this year’s Holocaust memorial day is “take action for a better future”. For me and for many others, that must be a future in which the horrors of the Holocaust and subsequent genocides are taught and are known by all, so that the words “never again” have a chance of having meaning. I agree with Jackson Carlaw about paying tribute to the work that is done across Parliaments and Governments to ensure that that happens.

The future must be guided by us but it must be in the hands of young people, so, in closing my speech, I will give space to words that I heard at the Glasgow reform synagogue on Saturday from a young man called Ben Bland, who I think summed up the challenge of the present age but also the hope for a better future. He said:

“The future nowadays seems bleak, the news and social media are playing an important part in this, creating division and sowing the seeds of hatred, directed at those least deserving of it whilst lauding praise to those who deserve it even less. So, here today, I want to make the effort to turn away from it, looking inward for my vision, my hope for the future. In it, I see barriers of prejudice built between themselves and taken down, with olive branches extended. Walls of prejudice like homophobia, racism, sectarianism, xenophobia should be cast aside. I see people in the future being more kind and understanding to each other, understanding of themselves and what they can do to help those around them. I want the people around me to have a better understanding of what it means to be open-minded. I hope that people can display more empathy and sympathy for each other. I hope that people can begin to understand that, with a little bit more consideration of others, we can start to make our collective experience of life a little bit easier and more pleasant.”

My amendments in this group seek to retain the current preliminary steps that the commission must take in respect of a complaint, specifically to determine whether it is

“frivolous, vexatious or without merit”,

and to reject it if so.

I will be clear at the outset that at this stage my amendments are largely probing, although I reserve the right to press them, depending on how our debate proceeds this morning. It is important that we have this debate, and I thank the SLCC and the Law Society of Scotland for their engagement on the issues and on my amendments.

The rationale behind my amendments relates to the efficiency of the complaints process and the system, in which, I think that we would all agree, we do not want there to be complaints that are not going to go anywhere. To speak plainly, complaints that are, by definition, vexatious or frivolous will jam up the system. Members will be aware that many complaints that are submitted fit that definition, and many of us would recognise that, from time to time, so are some of the messages in our inboxes.

It is important that such complaints are dealt with as early as possible and, if they meet the criteria, that they are disregarded to avoid causing an unnecessary backlog, additional work and bottlenecks downstream in the complaints process. That means that such complaints should be dealt with when they first hit the desk of the SLCC, rather than making their way through a longer process. I believe that it would be fairer to complainers and all parties involved in the complaints process to dismiss a complaint that is frivolous, vexatious or without merit at an earlier stage, rather than dragging it through a further onerous process, only for it to be dismissed for those reasons later.

If we accept the premise that we should keep the system efficient and deal with such complaints, the question becomes what test we should use to do that. I note the SLCC’s intent to achieve that aim by bringing forward its own criteria through the powers that it will be granted under the bill. However, I have some concerns that we have not seen the proposed rules and criteria, although I understand that they would largely replicate the current tests for establishing whether a complaint is frivolous, vexatious or without merit.

I have heard concerns about the legalistic nature of the terms that are used in the amendments, and have also heard that some people may find them offensive. I will deal with those criticisms in turn.

That the terms used are legalistic nature in nature can be a benefit, because they are well established and understood, backed up by case law and clear examples. Any new set of rules that used different terminology may not be backed up by case law and could be subject to legal challenge and, indeed, judicial review. That could be unnecessarily onerous on the commission and those who are involved in complaints.

I understand the concern that the terms are offensive. I also understand that, through the bill, we are trying to make the process more user friendly and to support the administration of natural justice. However, I suggest that individuals who are upset when they hear that their complaint has been determined to be without merit are likely to be upset anyway, regardless of what terminology is used at that point in the process, because their case has been dismissed. I again point to the well-established meanings of those terms. We should perhaps try to expand and explain those meanings rather than change them at the first stage.

From my engagement with the SLCC, it appears that it understands that argument and is leaning towards using the test for its own rules, for many of the reasons that I have outlined, although I am happy to stand corrected on that if I have misunderstood. If that is the case, it would be beneficial to keep the current rules in statute to give them backing in law as part of the complaints process.

I welcome the contributions of other committee members and the minister on the issue. As I said, depending on whether there are assurances and commitments to examine the issue further prior to stage 3, I might not press my amendments. However, changing the preliminary steps in the manner that is set out in the bill could have significant risks and unintended consequences, so there might be merit in keeping much of the preliminary tests as they are.

I move amendment 557.

I thank the minister for her engagement on the issue of disclosure of information to the public, specifically on amendment 536 in her name.

The improvements that we are making to the bill and legal complaints processes, such that information will finally go out into the public domain on on-going complaints, are welcome, both to protect potential consumers looking to engage services and to increase transparency around on-going issues.

The minister will be aware of my engagement on amendment 536 and of my early decision not to lodge similar amendments while I took advice and engaged with stakeholders on the question of whether that amendment would be sufficient to meet everyone’s desired intent. I believe that amendment 536 provides an assurance relating to disclosure of information, which is, as I have said, important.

However, I have lodged amendment 536A in order to make it absolutely clear that information may be disclosed under the new section 51A that would be created by amendment 535. The stakeholders that I have engaged with believe that a small addition to the Government’s amendment would provide sufficient cover for the disclosure of information about complainants and would ensure that that is absolutely clear. That fix would mean that some of the existing restrictions on the disclosure of information, which are found in section 52 of the 2007 act, would not apply when information is being disclosed under the public interest test, as set out by the minister’s amendment 535. The last thing that we would want to do would be to create a power to disclose information when that is in the public interest, only for that power to be constrained and made potentially meaningless by restrictions in section 52 of the 2007 act. I hope that members will see the value in supporting a technical fix to ensure that the public interest disclosure power works well to improve the transparency that we all want to see.

My amendments in this group seek to retain the current preliminary steps that the commission must take in respect of a complaint, specifically to determine whether it is

“frivolous, vexatious or without merit”,

and to reject it if so.

I will be clear at the outset that at this stage my amendments are largely probing, although I reserve the right to press them, depending on how our debate proceeds this morning. It is important that we have this debate, and I thank the SLCC and the Law Society of Scotland for their engagement on the issues and on my amendments.

The rationale behind my amendments relates to the efficiency of the complaints process and the system, in which, I think that we would all agree, we do not want there to be complaints that are not going to go anywhere. To speak plainly, complaints that are, by definition, vexatious or frivolous will jam up the system. Members will be aware that many complaints that are submitted fit that definition, and many of us would recognise that, from time to time, so are some of the messages in our inboxes.

It is important that such complaints are dealt with as early as possible and, if they meet the criteria, that they are disregarded to avoid causing an unnecessary backlog, additional work and bottlenecks downstream in the complaints process. That means that such complaints should be dealt with when they first hit the desk of the SLCC, rather than making their way through a longer process. I believe that it would be fairer to complainers and all parties involved in the complaints process to dismiss a complaint that is frivolous, vexatious or without merit at an earlier stage, rather than dragging it through a further onerous process, only for it to be dismissed for those reasons later.

If we accept the premise that we should keep the system efficient and deal with such complaints, the question becomes what test we should use to do that. I note the SLCC’s intent to achieve that aim by bringing forward its own criteria through the powers that it will be granted under the bill. However, I have some concerns that we have not seen the proposed rules and criteria, although I understand that they would largely replicate the current tests for establishing whether a complaint is frivolous, vexatious or without merit.

I have heard concerns about the legalistic nature of the terms that are used in the amendments, and have also heard that some people may find them offensive. I will deal with those criticisms in turn.

That the terms used are legalistic in nature can be a benefit, because they are well established and understood, backed up by case law and clear examples. Any new set of rules that used different terminology may not be backed up by case law and could be subject to legal challenge and, indeed, judicial review. That could be unnecessarily onerous on the commission and those who are involved in complaints.

I understand the concern that the terms are offensive. I also understand that, through the bill, we are trying to make the process more user friendly and to support the administration of natural justice. However, I suggest that individuals who are upset when they hear that their complaint has been determined to be without merit are likely to be upset anyway, regardless of what terminology is used at that point in the process, because their case has been dismissed. I again point to the well-established meanings of those terms. We should perhaps try to expand and explain those meanings rather than change them at the first stage.

From my engagement with the SLCC, it appears that it understands that argument and is leaning towards using the test for its own rules, for many of the reasons that I have outlined, although I am happy to stand corrected on that if I have misunderstood. If that is the case, it would be beneficial to keep the current rules in statute to give them backing in law as part of the complaints process.

I welcome the contributions of other committee members and the minister on the issue. As I said, depending on whether there are assurances and commitments to examine the issue further prior to stage 3, I might not press my amendments. However, changing the preliminary steps in the manner that is set out in the bill could have significant risks and unintended consequences, so there might be merit in keeping much of the preliminary tests as they are.

I move amendment 557.

I am grateful, convener; folk might be glad to know that this may well be the last time that the committee will hear from me this morning.

I will speak briefly to Tess White’s amendments, which I support in principle. I welcome many of the amendments in the group, in particular the minister’s amendments, and specifically amendment 372, which requires the SLCC to establish the register. However, I agree with some of what we have heard, in particular that it is odd to have an opt-in form of regulation, given that signing up to the register that is created will not be mandatory. The risk is that that could expose clients who have no further recourse. In addition, I am unclear as to what the incentive would be in that regard. I appreciate some of what the minister has said, but where is the incentive for firms to sign up to the register in order to ensure that it is a meaningful tool with a purpose?

I note, and recognise, the SLCC’s concerns about how the register might work in practice if it was mandatory, and the scope of what it would have to capture. However, as Tess White said, the committee made it clear in our stage 1 report that we wanted the Government to consider creating a mandatory, rather than voluntary, register. I add my voice to that call, in respect of what we might consider for further discussion in advance of stage 3.

On the basis of further discussion, I will not be moving amendment 536A.

Amendment 536A not moved.

Amendment 536 agreed to.

Section 72—Conduct complaints: power to impose unlimited fine and removal of power to award compensation

Amendments 423 to 437 moved—[Siobhian Brown]—and agreed to.

Section 72, as amended, agreed to.

Section 73—Faculty of Advocates: complaint of professional misconduct and publication of decision

Amendment 438 moved—[Siobhian Brown]—and agreed to.

Section 73, as amended, agreed to.

Section 74—Commission membership

Amendments 439 to 441, 538, 443 and 444 moved—[Siobhian Brown]—and agreed to.

Section 74, as amended, agreed to.

Section 75—Role of the independent advisory panel

Amendments 445 to 447 moved—[Siobhian Brown]—and agreed to.

Amendment 539 moved—[Maggie Chapman]—and agreed to.

Amendment 448 moved—[Siobhian Brown]—and agreed to.

Amendment 540 moved—[Maggie Chapman]—and agreed to.

Section 75, as amended, agreed to.

Section 76—Commission reports

Amendments 449, 537 and 450 moved—[Siobhian Brown].

The minister might well be coming to these points. I appreciate what she said about the flexibility that will be afforded to the SLCC in relation to its rules, but does she recognise my concern about the body of law around the specific terms? Is she concerned that, if the SLCC determined not to use those terms, that might cause significant challenges and further slow up the process? How does she intend to deal with that issue, given that the terms will not be in statute?

[Inaudible.]

Will the minister take an intervention?