Chamber and committees

In my contribution I have outlined, and will continue outlining, the concerns that are being raised, which are those that Mr Whitfield has outlined.

In particular, there is a sense that many established and well-known law firms, particularly trade union lawyers and those that support people with personal injury claims, may have issues with operations in Scotland because the bill has not clarified structures.

The minister is well aware of those issues and the potential implications for the legal services market if we do not get that right. As I said, those issues were raised during previous stages of the bill process and in correspondence from the Law Society, which has neatly explained why the bill, as drafted, should be remedied. The Law Society said:

“As a result, the provisions of Section 39 of the Bill as they stand conflict with the provisions of the 1980 Act. If RFLs”—

registered foreign lawyers—

“are included in the definition of ‘qualifying individual’, then Section 39(2) at the very least implies that one or more RFLs may form a legal business owned exclusively by RFLs, without any Scottish solicitor ownership, and that business would require and be capable of authorisation under the Bill, when that is not correct.

Conversely, if RFLs are not included in the definition of ‘qualifying individual’ and no separate provision is made for them, then Section 39 does not permit existing MNPs”—

multinational practices—

“to be authorised, which would prejudice the continuation of some of Scotland’s largest and most successful law firms, many of which are MNPs.”

In an attempt to tidy up the matter, the minister has indicated her intention to alter the explanatory notes on the definition of qualifying individuals. I am also aware of her correspondence with the Law Society only yesterday, in which she confirmed that she intends to adopt its draft text of a revision to the explanatory notes. It would be helpful to have on the record, without equivocation, that it is, indeed, the minister’s intention to adopt the Law Society’s text for a revision to the explanatory notes.

However, we are dealing with a central issue that has been a focus of concern since the bill was introduced, two years ago, so I am concerned that that letter of last night was the first time since stage 2 that the Government has directly laid out its position to the Law Society, which would be responsible for regulating all these matters and has repeatedly raised the issue.

As I have outlined, the matter is critical for the legal services market in Scotland, and so, despite that last-minute adjustment to the Government’s position, I will press my amendments to ensure that the matter is beyond doubt and to take what might be called a belt-and-braces approach. As things stand, I will move the amendments when they are called and I urge members to support them.

I move amendment 117.

Will Tess White give way?

I will deal with the more minor amendments in the group first, before dealing with the important issue of registered foreign lawyers.

Amendment 123 will make changes to section 42 to allow category 1 regulators to make rules about the effect of an authorisation of a legal business that is a partnership or another unincorporated body where the membership of the legal business changes or another legal business succeeds to the whole, or substantially the whole, of its business. It deals with an ambiguity in Scots law regarding traditional partnerships to ensure that, where there are changes to membership, there is a swift transfer of authorisation of interests of the business. I am grateful to the minister for her indication that the Government is willing to support amendment 123, which will be important in delivering justice and support to those who require it when there is such a change, as I have outlined.

Amendment 126 will remove section 44(2)(a)(ii), which currently requires practice rules of authorised legal businesses to have regard to “regulatory objectives”. Overarching regulatory objectives are applicable to regulators, and it is regulators who must adhere to them. Instead, legal providers must adhere to professional principles, which are already covered elsewhere in the bill, so the subparagraph is an incorrect reference that has to be removed from the bill. I am grateful to the minister, again, for indicating that she is minded to support amendment 126, which seeks to clarify and clear up the bill as drafted—and, subsequently, if it is agreed to, the legislation.

Amendments 124 and 125 would remove from section 44 a paragraph and a subparagraph that require practice rules to include the process for the making and handling of complaints. Given that complaints processes are currently set out in statute, there has been concern among stakeholders that the current provisions in section 44 might not be appropriate or, indeed, legally competent. However, the minister’s written explanation to me about the necessity of the powers that are provided to the SLCC to direct minimum standards has been very helpful for my understanding of the purpose of the subsections. If the minister will provide detail of that on the record in her contribution, I would be most grateful and, subsequently, minded not to move those two amendments.

I turn to my remaining amendments in the group, which are amendments 117 to 122 and 138, regarding qualifying individuals and the status of registered foreign lawyers. The issue is critical to the functioning of the legal services market in Scotland; it was debated extensively at stage 2 and we heard evidence on it at stage 1.

If we do not get definitions of the status of registered foreign lawyers correct, in order to provide legal certainty that they are permitted to part-own authorised legal businesses as part of multinational practices, that could have a particularly concerning impact on the legal services market in Scotland. The ownership structures of some of our largest and best-known law firms could be threatened by the implementation and interpretation of the statute.

It is difficult to overstate the level of concern that that has caused within the legal profession, because it is a significant issue that many lawyers feel has been left in the balance for the past two years. We are talking about the ability of some of the UK’s largest law firms to operate here in Scotland, which concerns thousands of jobs and tens of thousands of clients.

I recognise what the minister is outlining, but does she recognise the letter that came from the Lord President and his view that his office should be the final port of recourse before a complaint potentially has to go to judicial review? Does she share my concern that judicial review can be costly and slow things up even more?

I thank the minister for her co-operation and, indeed, collaboration on amendments 11, 22, 23 and 90, in my name.

Amendments 11 and 90 would provide relevant professional organisations that are considering initiating a complaint against a practitioner or an authorised legal business with the power to give notice to the practitioner, or the practitioner’s firm, or the authorised legal business, requiring production or delivery of the document specified in the notice relating to the complaint. Those amendments would allow lawyers who work for the Crown Office and Procurator Fiscal Service to be exempted from any requirement placed on them to provide information, to prevent interference with their prosecutorial functions and independence.

Amendments 22 and 23 would expressly provide the Law Society of Scotland with discretionary powers to disclose information where it was in the public interest to do so.

I believe that all my amendments would be extremely important for ensuring the swift resolution and advancement of complaints and also for ensuring that there is strong transparency around their resolution. I believe that they would represent good news for achieving transparency and proactive regulation.

Also in this group is my amendment 135, which would permit relevant professional organisations to appeal SLCC directions on minimum standards to the Lord President, for his determination. I whole-heartedly agree with the minister that the SLCC’s ability to direct minimum standards would provide for a strengthening of the consumer voice and, it is to be hoped, would lead to improved practices within the complaints process. I note that members of the profession have widely accepted that view.

However, I think it reasonable to consider that, like any person or organisation, the SLCC is not infallible and therefore might issue guidance that did not account for certain circumstances. Such guidance could be impractical or simply wrong. Even if the processes that include consultation with affected stakeholders were observed, wrong or impractical conclusions could be drawn and evidence could simply be ignored.

In those instances it would seem fair to give the profession a mechanism to voice its concerns to a third party. My amendment 135 would require that it be put before the Lord President for final consideration, at which point he could uphold the direction, either in part or in full, or vary it.

The Lord President has indicated his agreement with that position, in principle, in a letter that he sent to the Equalities, Human Rights and Civil Justice Committee ahead of stage 3. In it, he stated that the senior judiciary’s view was that the bill should be amended so that the Lord President is given a power to approve the SLCC guidance, which sets minimum standards before they are imposed on a regulatory body. The Lord President approves the practice and disciplinary rules of the Law Society and the Faculty of Advocates. If minimum standards from the SLCC are to be included in rules which the Lord President approves and the Lord President does not agree with these rule changes because the SLCC minimum standards are not workable or appropriate, the senior judiciary thought it would be unlikely that the Lord President would approve those rules.

I note that, without my proposed mechanism, in particularly egregious examples, the only avenue that would be available to relevant organisations would be to seek judicial review. That would be significantly more costly and more time consuming than any costs or delays that might result from the ability to refer guidance to the Lord President for a final direction.

It appears that the minister and I are at odds on that point. However, it seems to me that amendment 11, in my name, would provide a reasonable safeguard.

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 absolutely agree. I was coming to the point that Mr Sweeney alludes to, which is that people who live in poverty often die a poor death. Regardless of the outcome of this evening’s vote and this process, it is incumbent on all of us in the Parliament to continue to have a serious discussion about the provision of palliative care and access to palliative care and dignity at the end of life. In particular, we are collectively failing to properly support our hospices.

At all times in this debate, my approach has been to listen and engage and to respect that there are many deeply held views in favour of changing the law and against doing so. Fundamentally, I have tried to come to my own conclusion by interrogating the evidence that has been provided to me, not least by this Parliament’s Health, Social Care and Sport Committee in its stage 1 report. I am very grateful to colleagues for their work in that regard. My conclusions recognise not only the end-of-life experiences that I have heard about, but the concerns that have been raised with me about the bill—principally, the need to protect the rights of disabled people in society, the risk of coercion and, indeed, the potential for extending, via the courts, the scope of assisted dying.

In the time that is left to me, I will focus on only one of those points—the value that we place on disabled people in our society. Pam Duncan-Glancy outlined her concerns about what the bill will mean in reality for disabled people far more eloquently than I could. However, in my mind at all times in this process there has been an acute sense that we are not debating these measures in an equal society. There is not a level playing field for disabled people, who too often are still seen as—and feel like—a burden. They are too often vulnerable to coercion, even by the very institutions that exist to protect them and all of us.

That was brought to my mind all too acutely during the pandemic. For seven years prior to being elected to this Parliament, I worked for a learning disability charity. With people who have a learning disability, I campaigned for their rights and for the rights of their family carers. I know how important it was to them to have independence and be valued as a member of society. Yet, in the pandemic, in the darkest medical emergency of this generation, people who have a learning disability told me about the do not resuscitate orders that were signed on their behalf, without their knowledge and without the knowledge of their family. That brought home to me very clearly the fact that people who have a disability are not treated the same as other people in our society. We still do not have answers to why that happened.

Without that level playing field and a more equal society, despite all our debates, all the proposed safeguards in the bill, my deep respect for the member in charge and his intentions, and my deep respect for my constituents who, fundamentally, do not share my view about the need for a change in the law, I cannot support the bill tonight.

I am grateful for the opportunity to contribute to the debate. At this stage of the evening, I am pleased to be following so many considered, passionate and powerful speeches by colleagues from all parts of the chamber.

This is a serious bill and a serious debate. In many ways, it is one of the most serious issues that we will deal with in this session of Parliament. It is the culmination of four years of debate in this session and of a wider debate long before that. We have heard much of that debate rehearsed this evening.

Like colleagues, I pay tribute to Liam McArthur. The manner in which he has steered the passage of the bill has been thoroughly decent, collegiate and patient. His contribution in opening the debate today continued in that vein.

Everyone in the Parliament and, indeed, across the nation approaches this debate with their own experience of and encounter with death, because death comes to us all and touches us all, no matter who we are. Seamus Heaney wrote:

“death is not easily
escaped from by anyone:
all of us, with souls, earth-dwellers
and children of men, must make our way
to a destination already ordained”.

The question, and the debate that we are having, is about how we die. I have sought to encounter and listen to my constituents and their stories. I think particularly of people such as Caroline, who came to see me and made me stop in my tracks as she spoke with passion and emotion about the death that her loved one experienced. It was a difficult death, in which pain was present, and she felt that the option of assisted dying would have made that process far better not only for her loved one, but for her.

I recognise the work of Marie Curie. Last year, I was very pleased to bring to the chamber a debate on “Dying in the Margins”. That exhibition, which we have heard about before this evening, sought to show to the world the conditions in which people come to the end of life in our society. It struck me that, in many ways, even in hospice care, we are already failing to allow people to have a good death. There is a failure to support people by adapting their properties so that they can die well, to allow people to access social services and to provide that wider end-of-life support.

Today, on the 80th anniversary of VE day, we paused to reflect on all those from our communities who gave their lives in the course of the second world war, for the freedom and liberation of Europe and for the peace and security of us all.

The war memorials in our towns and villages are etched with the names of those who fell—on land, at sea and in the air—and who made the ultimate sacrifice for the things that we value so much.

Today, I am also thinking of those who suffered so much and who lost their lives here in Scotland and in the communities that I represent across West Scotland. I am thinking of the terrible toll that the blitz took on communities in Clydebank, Greenock and so many other industrial towns across the west coast. The scars run deep in those communities, even to this day—whether they be scars in the minds of people who survived, physical scars or the scars that were inflicted on the landscape, which would never look the same again.

Many of us have brought personal stories and we have heard very eloquent ones. Those stories are important. Many of us have loved ones who lived through and perhaps served in the war.

I have been thinking a lot about my grandmother, who would have been 95 if she were still alive. She did not live to see me be elected to the Scottish Parliament. When she passed, she left me a painting of Craighead in Barrhead, where she was born and where she grew up. It sits in my office upstairs. I was thinking about that painting today, because it shows the house from which my grandmother experienced the second world war. She would tell us stories frequently about the blackout, rationing, carrying your gas mask to school, and the work that she did for the local co-operative society in her teenage years during the war. I was also thinking about how she would have left that close in Craighead on VE day to join the celebrations in the community of Barrhead. I remember the sense of relief and joy that she expressed that war in Europe had finally come to an end.

There is something else important that I have been thinking today about my gran and her generation. We have heard it articulated already in speeches. My gran’s generation—the generation who lived through the war—not only gifted us freedom and security but went on to gift us so much more of the things that we value in this country today. They are the generation who rebuilt this country from the ashes and rubble of war. They are the generation who turned their shoulder to the wheel, having faced the storm. Under the reforming Labour Government of Clement Attlee, they gifted us institutions such as the NHS and the welfare state, new towns and access to education.

They did it in their own ways, washing floors or putting bricks and mortar together. They fed children and helped the ill and disabled. In doing that, they also gave us something more fundamental. They gave us values that endure to this day: the values of standing with and helping our neighbours, of hard work and dedication, of keeping calm and carrying on and of never giving in.

This evening, I will join people in my community of Neilston as we light a beacon for peace. When we do so, I will think of all those who gave their lives and those who gave so much of the life that they had after the war to building this country. I will think of my gran and all those people who stood with her, whom we remember today, on VE day.

He has done it again!