Seòmar agus comataidhean

I agree with Ms White that post-legislative scrutiny is vital. On amendment 637, I am happy to continue to engage on a review mechanism. However, as Ms White stated, I retain concerns that the time period refers to royal assent rather than commencement. I will, of course, seek to swiftly commence the legislation if it is agreed by the Parliament, but the Scottish Government wishes to work collaboratively with stakeholders, as it has done throughout the progression of the reforms, to ensure that all the prerequisites are in place. To ensure that any review provides an accurate reflection and is more meaningful, I consider that basing the time period on commencement would present a stronger, more developed position. I urge Ms White not to press her amendment in the group. If she presses it, I urge members not to support it.

Amendments 452 and 453 are minor technical amendments to section 32 of the 1980 act. The effect of amendment 454 will be that section 33 of the 1980 act, which is entitled “Unqualified persons not entitled to fees, etc”, will continue to apply to law centres, citizens advice bodies and charities. I ask members to support the amendments in the group.

I move amendment 452.

Amendment 452 agreed to.

Amendments 453 and 454 moved—[Siobhian Brown]—and agreed to.

Section 81, as amended, agreed to.

Section 82—Offence of taking or using the title of lawyer

Amendment 455 moved—[Siobhian Brown]—and agreed to.

Section 82, as amended, agreed to.

Section 83—Offence of pretending to be a regulated legal services provider

Amendment 456 moved—[Siobhian Brown]—and agreed to.

Section 83, as amended, agreed to.

Section 84—Offence of pretending to be a member of Faculty of Advocates

Amendment 457 moved—[Siobhian Brown]—and agreed to.

Section 84, as amended, agreed to.

Section 85 agreed to.

Section 86—Power of the Scottish Ministers to adjust restricted legal services

Amendment 458 moved—[Siobhian Brown]—and agreed to.

Section 86, as amended, agreed to.

After section 86

Amendment 459 moved—[Siobhian Brown]—and agreed to.

I reaffirm what I said when amendment 638 was debated last week. Following engagement with Tess White, I am content to support the provisions in the amendment. We might have to revisit it at stage 3 to ensure that the revised provisions will work fully with the wider legislation, and I look forward to engaging with Tess White further on that. The Government is willing to support her amendment 638. Accordingly, I will withdraw amendment 508.

Amendment 638 agreed to.

Amendment 639 moved—[Paul O’Kane]—and agreed to.

Section 87—Modification of other enactments

Amendment 460 moved—[Siobhian Brown]—and agreed to.

Section 87, as amended, agreed to.

Schedule 3—Minor and consequential modifications of enactments

Amendments 461 to 467 moved—[Siobhian Brown]—and agreed to.

I assure Ms Chapman that I will be very happy to discuss that further in advance of stage 3.

Amendment 468 agreed to.

Amendments 469 to 472 moved—[Siobhian Brown]—and agreed to.

Paul O’Kane’s amendments in the group would place back in statute a requirement for the SLCC to determine whether a complaint was

“frivolous, vexatious or without merit”

before it could investigate a complaint. Placing in statute the eligibility process can make the process more time consuming for both the complainer and the legal practitioner, and it can have the effect of delaying a clearly serious complaint from being investigated swiftly, as the SLCC must proceed through the initial statutory stages or tests of assessing the complaint before an investigation can commence.

All that takes place simply to assess whether a case can be accepted by the SLCC as a complaint to be looked at—something that, in many complaints bodies, is a low-level administrative decision. As a comparison, in England and Wales, under the Legal Services Act 2007, the legal ombudsman is simply required, in relation to a complaint, to determine

“in the opinion of the ombudsman making the determination”

what is

“fair and reasonable in all the circumstances of the case.”

The bill retains categorisation of conduct and service complaints, as that determines who will investigate the matter. The bill will also allow the SLCC to consider whether a complaint is not eligible, according to rules that it sets, or has been made prematurely, and it will provide greater flexibility to the SLCC to make rules about complaints that are considered to be frivolous, vexatious or without merit. That approach is supported by the SLCC, and it will allow for a more proportionate and swifter consideration of legal complaints, including whether they are frivolous, vexatious or without merit. Ensuring that eligibility decisions involve a quick sift is essential in providing a prompt resolution that benefits both consumers and practitioners.

Amendment 316, in my name, is a consequential amendment in the light of other changes being made to the bill. It removes section 4(4)(b) of the 2007 act as a consequence of the removal of section 2(4) of that act, which prescribes the preliminary steps to be taken by the SLCC in making an eligibility decision.

The improvements that are proposed in the bill and in my amendments would allow the SLCC to operate a flexible and agile complaints process that allowed a proportionate approach to be taken to different types of complaint.

Yes.

I will come to that further along, but as I said when we debated the previous group, the SLCC will have to go to consultation with the Lord President, Scottish ministers and consumer panels on the process that will be set up.

One of the main points is that the provision will also give the SLCC flexibility in future. As we saw at last week’s meeting, a lot of amendments and groups were about strengthening the legal process, but as the committee has acknowledged in its recommendations, we must also ensure that the voice of the consumer is not lost, and we need to simplify the process for their access to justice. Therefore, there will be no lessening of the SLCC’s requirements in that respect. Furthermore, the SLCC has a duty to exercise its decision-making functions, in accordance with administrative law principles, including around the notification of decisions.

In making or varying these rules, the SLCC will be required to consult the Lord President, the professional bodies, the consumer panel, other consumer groups and groups that represent the interests of the legal profession. The SLCC will also need to publish the rules. I note Mr O’Kane’s concerns that, in the future, the SLCC could decide not to publish the reasoning behind its decisions. That would have to go to consultation with the Lord President and all the legal professional bodies as well, and I consider that that provides sufficient checks to ensure that the committee’s concerns would be addressed.

Amendment 572 proposes to reintroduce prescriptive provision into the legislation, which risks the improvements in the bill that would deliver efficiencies. The SLCC is supportive of the Scottish Government’s approach. I therefore ask members not to support Mr O’Kane’s amendment 572.

I thank Maggie Chapman, and I acknowledge the concerns that the consumer panel has raised. We would not be able to get involved in the SLCC process—it will be up to its independent process to look at how the panel should be funded—but I am happy to work with the SLCC on that as we move forward.

Amendment 312 agreed to.

Section 52—Receipt of complaints: preliminary steps

I am pleased to have worked with Stuart McMillan on his amendments in this group, which amend the Legal Profession and Legal Aid (Scotland) Act 2007 to provide a more flexible power than currently exists for the SLCC to disclose information for the purpose of confirming receipt of a complaint, allowing the SLCC to proactively release information and providing the SLCC the ability to disclose the outcome of a complaint where it is in the public interest to do so. I support Stuart McMillan’s amendments 524, 526, 527, 533 and 534.

I turn to my amendments in this group. Amendment 535 will provide the power for the Law Society of Scotland and other legal services regulators—relevant professional organisations—to disclose information about complaints that they are investigating, but only if they consider it to be in the public interest. The information may identify a practitioner or a firm to whom the complaint relates, but it may identify the complainer only with the complainer’s consent.

Amendment 536 will amend section 52 of the 2007 act to allow information to be disclosed for the purpose of enabling or assisting any regulatory body that is specified for this purpose in regulations.

Mr O’Kane’s amendment 536A seeks to amend my amendment 536. The Law Society has referred only to paragraph (b) of section 52(3) of the 2007 act. We agree that that allows disclosure in cases where the body is compelled to disclose it. However, paragraph (a) of section 52(3) provides that information may be disclosed

“for the purpose of enabling or assisting the relevant professional organisation to exercise any of its functions in relation to such a complaint”.

The reference to functions includes duties and powers and therefore includes the power of a regulator under new section 51A to disclose information. Amendment 536A is therefore unnecessary, and I would urge members not to support it.

Amendment 338 will remove subsection (2) from section 53 of the bill, which amends section 13 of the 2007 act, which relates to service complaint reports, in consequence of the removal of section 13 by Stuart McMillan’s amendment 524.

Amendment 484 ensures that qualified privilege applies to information that the commission may disclose about complaints in consequence of amendment 533 in the name of Stuart McMillan and amendment 535 in my name.

Amendment 494 ensures that qualified privilege applies to information that regulators may disclose about complaints in consequence of amendment 535.

I therefore ask members to support my amendments, and the amendments lodged by Mr McMillan.

I will comment on Mr O’Kane’s contribution regarding amendment 536A. I understand and appreciate his intentions. In order to clarify the position and to address the concerns that he raised, I would be happy to adjust the explanatory notes to the bill to refer to the disclosure of information under section 51A of the 2007 act as an example of regulators’ functions mentioned in section 52(3)(b) of the 2007 act. I would be happy to discuss that with the member in advance of stage 3, if that would be helpful.