Chamber and committees

I am conscious that my colleagues have questions, so I will stop there.

Good morning. The committee is particularly interested in the matter of access to legal aid, and work is being done on that across the Parliament, certainly in committees such as the Equalities, Human Rights and Civil Justice Committee. It would be useful to get the minister’s view, first, on work that the Government is undertaking to reform legal aid. There is a short-term piece of work on that, but it is not as broad as people had hoped would be achieved in the Parliament. However, there is a commitment to a longer-term piece of work, which might involve legislative change. The consultation documents that the Government has produced do not seem to cover the issues that we are discussing around financial abuse and domestic abuse more widely. Does the minister see that as a priority, and how is she working to influence a wider review with her justice colleagues?

I appreciate that, and I have had sight of that paper. Does the minister appreciate, however, that we are in the final furlong of the current session of Parliament and meaningful change will be difficult, and that there is frustration from both the legal profession and people seeking support about the lack of reform? Would she recognise that, in the paper that was published in February, issues in relation to people leaving an abusive relationship and requiring support are not mentioned? Would she recognise her role in ensuring that we do something on those issues as quickly as we can, given the evidence that we are hearing?

I have nothing further to add, and I press the amendment.

Amendment 127 agreed to.

Amendment 128 moved—[Paul O’Kane]—and agreed to.

Section 54—Commission process relating to complaints

I, too, press the minister on the concerns that have been expressed by the Law Society and others regarding amendments 34, 38 and 42. Throughout the bill process, the Government and members across the Parliament have been trying to strike the right balance between effective and efficient regulation and the interests of consumers and their protections.

I am concerned that introducing the appeal mechanism that is provided for in amendment 34, on top of existing and other court actions, for situations in which a regulator has intervened in a failed firm and given directions to safeguard client interests, could delay the ability to act at speed. Tess White gave the example of a client filing to complete an urgent conveyancing transaction when it might be impossible to complete that transaction. That is a serious issue. I am sure that many of us are familiar with the circumstances of being in a chain and needing speed when involved in conveyancing. Has the minister weighed the potential consequences for consumers? Why does she feel that the proposed additional right of appeal is so critical?

On amendment 38, I ask what consideration the minister has given to the unintended consequences of the catch-all mechanism that she has created for triggering safeguarding mechanisms under proposed new section 46A of the 1980 act, given that there are reasons for cessation of practice, such as retirement, that do not necessitate safeguarding mechanisms being triggered.

Similarly, on amendment 42, I worry about the practicality of requiring all sole practitioners who cease practising to prepare and submit interim accounts and to notify all clients within 21 days, when a date for cessation is often not determined until well after the fact.

Regarding the appeal rights and directions from the regulator for which amendment 42 provides, I refer members to the arguments that I outlined earlier in relation to amendment 34.

As they stand, I am concerned that the amendments, both individually and together, are unnecessary. I think that they are impractical and contrary to the interests of consumers, and members on this side of the chamber are minded to oppose them.

The minister discussed the Law Society’s view and the exchange of letters that happened yesterday. She mentioned unintended consequences a number of times, but it is not clear from my discussions with the Law Society what those would be. It is concerned that it does not have clarity on what the minister has referred to. Indeed, it is keen that we take what I have described as a belt-and-braces approach by putting the issue at the forefront of the bill.

Although I intend still to move forward in that regard, I understand and respect what the minister said about her revision to the explanatory notes and her willingness to accept the Law Society’s wording on the issue, which will go some way to finding the compromise that we are looking for. However, given the significant concerns that have been raised by the Law Society in its correspondence, I will press amendment 117.

I am pleased to speak in the debate on behalf of Scottish Labour and confirm that we will support the bill at decision time this evening.

As we have heard already in contributions, the process has been long for all involved—not merely this afternoon, although I appreciate that for colleagues it might have felt like two years when, in fact, it has been only two hours. We have been at the bill for two years, and it has been more than a decade since some stakeholders who have been calling for reform of the regulatory system began working for it. On that point, I thank all the organisations and individuals who have engaged on the bill, not least the Law Society of Scotland, the Faculty of Advocates, the Scottish Legal Complaints Commission and many others, including people who have experience of complaints against solicitors in Scotland. Their time and efforts have certainly moved the bill into a much better place than where it started.

It would be remiss of me not to reflect on why the bill has taken so long to come to its conclusion. As we have heard, the bill was controversial when it was introduced, as the Scottish Government attempted to take control of legal services regulation through ministerial powers. Such was the significance of the threat to the independence of the judiciary and the legal profession, which is a fundamental tenet of a well-functioning democracy, the senior judiciary was left in the unprecedented position of speaking out on the proposals. It might be the first time in the Parliament’s history that the senior senators of the College of Justice have come to give evidence on a piece of legislation that directly related to their functions and the function of legal services in Scotland.

I am sure that many, in and outwith the chamber, were baffled that a policy could be formed and a bill introduced that so fundamentally threatened the profession’s independence, when there were no calls or recommendations for such a position to be taken.

I recognise that the minister listened to the depth and breadth of concern about the proposals and lodged significant amendments at stage 2 to reverse that position. However, I think that serious learning remains to be done by the Government about how it took that position in the first place.

I pay tribute, though, to the minister. She came into office part way through the bill process and inherited the bill in the condition that it was in. She has sought to listen and engage and has been constructive and co-operative through the stages of the bill—certainly with me. I genuinely appreciate her time and engagement and that of her officials and the wider bill team.

I continue to have some concerns about the stage 3 consideration process that we have just completed. The fact that an issue as significant as the status of registered foreign lawyers and multinational practices was left to the final day of the bill’s passage to be resolved is quite concerning and shocking. We are talking about the ability of some of the biggest law firms in the United Kingdom to operate in Scotland and about—as I said in my remarks on the amendments—thousands of jobs and tens of thousands of clients. The Law Society and others have been highlighting those issues for the two years since the bill was introduced. It is my understanding that, although the Law Society is the regulator and the body responsible for administering the legislation, there have not been detailed discussions with it on those matters preceding the correspondence that was issued last night, which I referred to earlier.

I believe that, ultimately, over the course of stages 2 and 3, the bill has been brought to a better place. It will provide tangible improvements to the legal system and legal services and much-needed additional protections to consumers and the public.

I am disappointed that the Conservatives will not join us in supporting the bill this evening, although I appreciate that they are speaking of their concerns about what it means for consumers. I point out to Tess White and others that an independent regulator is not being widely called for by people involved in the process, particularly the Faculty of Advocates, which I referred to earlier, but also the Law Society and others. If an independent regulator were answerable to the Lord President, I do not think that it would be an independent regulator. There is a challenge in the position that the Conservatives have arrived at. I believe that their previous position was to support the tenets of the bill and not to support an independent regulator.

I welcome the powers that I have worked on with the minister that have now been included in the bill. I highlight to the minister, however, that amendment 42 not passing and the related subsequent or previous amendments passing might cause some challenges in the legislation. It would be useful if, in a return to Parliament or in her summing up, she clarified how she intends to take that forward, given that it will be a challenge in the statute book. The post-legislative scrutiny would be a helpful vehicle to seek to deal with those issues. We need to understand what issues will remain in that space, and I hope that she will use the post-legislative scrutiny to do that.

I think that the bill will provide major, overdue regulatory changes for the benefit of consumers and practitioners alike. It will simplify a system that is too complex and will make proactive a system that is too reactive. Consequently, we will support the bill, as amended, this evening.

Colleagues might have been missing the sound of my voice. I am very grateful to the minister for her indication that she will not move her amendment 91 and is instead minded to support my amendments 127, 128 and 136.

My amendments deal with the issue of cost recovery by regulators when collecting a financial penalty that has been imposed on a business. Although the penalty is payable to the Scottish ministers, it is the regulators that collect it, so they will incur costs. It does not seem reasonable or fair for the rest of the legal profession—and, by extension, the consumers who consume legal products—to cover the costs of that process.

My amendments would allow regulators to recover reasonable costs and build in flexibility to discontinue or resume collection where it becomes unreasonable or unfeasible to collect the financial penalty.

I believe that, by collaborating on these amendments, we have put together a set of provisions that would bring more natural justice to the process for both lawyers and consumers.

I move amendment 127.

Tess White spoke about the challenges that the bill presents, particularly with regard to the independence of the judiciary. However, I am not sure whether she is supportive of having an independent regulator, so it would be useful if she could clarify that. Does she recognise what the Faculty of Advocates said in its evidence to the committee, which was that it considers that to be

“a hare that was ... shot long ago”?

I think that our exchange of views on the issues raised by this section of the bill has been useful, and I am grateful to Maggie Chapman and the minister for their comments. Given the minister’s assurances, I choose to withdraw amendment 116.

Amendment 116, by agreement, withdrawn.

Section 18—Professional indemnity insurance