Seòmar agus comataidhean

Thank you, convener. I know about Mr O’Kane’s concerns in that regard, which have also been raised by the SLCC. I am happy to discuss with him how we can move forward on the issue before stage 3, although I cannot commit to specifics at this stage.

Amendment 319 agreed to.

Section 55—Regulatory complaints against authorised legal businesses

Amendment 320 moved—[Siobhian Brown]—and agreed to.

Amendment 573 not moved.

The first selection of my amendments in this group will amend section 35, new section 36A and section 40 of the 2007 act. New section 36A, as inserted by the bill, allows the SLCC to issue guidance to relevant professional organisations about how they are to investigate and determine conduct and regulatory complaints.

Amendment 397 introduces a requirement on the SLCC to consult the Lord President, relevant professional organisations, practitioners regulated by each organisation and any other persons whom the SLCC believes are appropriate before producing guidance that sets minimum standards. That responds to legal stakeholders’ views.

Amendment 396 amends section 35 of the 2007 act to enable the SLCC to notify the relevant professional organisation of a concern, if, in the course of exercising its functions, such as monitoring practices and trends, it identifies a matter of concern relating to how practitioners or a practitioner’s firm or employing practitioners deal with complaints.

Amendment 400 places an additional duty on the SLCC in respect of publishing any guidance that sets minimum standards by requiring them to publish a document summarising the consultation, any representations received and any changes made to the minimum standards as a result of the consultation, and the reasons for including the minimum standards in the guidance.

Taken together, amendments 401 and 403 allow the SLCC to issue guidance to relevant professional organisations relating to the standards that such organisations must set for practitioners in rules relating to how to deal with complaints. That replaces the current provision to set minimum standards directly for practitioners. Those changes address the Law Society’s concerns and will require oversight by the Lord President, as the Lord President’s approval of any rules for practitioners is required before they can take effect.

Amendment 416 expands the range of consultees that the SLCC must consult in relation to any initial proposals for minimum standards to be set out in guidance, mirroring the requirements in respect of the proposed guidance on dealing with complaints.

Amendment 420 inserts new subsections into proposed new section 40A of the 2007 act, which relates to the enforcement of minimum standards. The new subsections (10A) and (10B) will enable the court to provide that the relevant professional organisation is not required to comply with some of the steps that are specified in the direction where the court considers that taking those steps would have a detrimental effect on the ability of the relevant professional organisation to comply with its regulatory objectives.

Amendment 421 removes provision on enforcement of minimum standards in relation to practitioners because other amendments have removed the power of the commission to be able to set minimum standards directly on legal practitioners.

Amendment 422 will provide the SLCC with the powers to request additional details from legal professionals to aid with monitoring trends and practices in the profession by enabling them to request information from the practitioner about complaints that they received during the three-year period before the request was made. The information requested must be for the purpose of monitoring practice and identifying trends or the issuing of guidance. The provision lists examples of the type of information that can be sought.

Amendment 419 expands on the publishing requirement that requires the commission to, at the time of publishing any guidance that creates minimum standards in relation to the client protection fund, publish a document summarising the consultation carried out, any representations received in response to the consultation, any changes made to the commission’s initial proposals for the minimum standards as a result of the consultation and the commission’s reasons for including the minimum standards in the guidance.

Amendments 395, 398, 399, 402, 404 to 411, 414, 415, 417, 418 and 537 are consequential to the substantive amendments in the group or are minor technical and tidying-up amendments.

I urge members to support the amendments in this group.

I move amendment 395.

Amendment 395 agreed to.

Amendments 396 to 411 moved—[Siobhian Brown]—and agreed to.

Section 69, as amended, agreed to.

Section 70—Compensation funds: setting of minimum standards by the Commission

Amendments 412 to 419 moved—[Siobhian Brown]—and agreed to.

Section 70, as amended, agreed to.

Section 71—Enforcement of minimum standards

Amendments 420 and 421 moved—[Siobhian Brown]—and agreed to.

Section 71, as amended, agreed to.

After section 71

Amendment 422 moved—[Siobhian Brown]—and agreed to.

Amendments 533 and 534 moved—[Marie McNair]—and agreed to.

Amendment 535 moved—[Siobhian Brown]—and agreed to.

Amendment 536 moved—[Siobhian Brown].

Good morning, convener and committee members. The first set of amendments in the group relates to the Scottish Legal Complaints Commission and is the outcome of extensive engagement with the SLCC, with the content of the amendments having been agreed.

Amendment 312 and consequential amendments 438, 467, 499 and 523 remove the provisions in the bill that would have removed the word “Complaints” from the name of the Scottish Legal Complaints Commission. Following engagement with stakeholders, including the SLCC, and reflecting the committee’s recommendations, we acknowledge that our original intention to refer to the “Scottish Legal Services Commission” could be misleading for members of the public seeking to make a complaint about the legal profession.

Amendments 335 and 336 seek to make improvements to the complaints process by setting out what decision-making and delegation powers will be available to the Scottish Legal Complaints Commission. They are also the outcome of extensive engagement with the commission, with their content having been agreed.

Amendment 335 allows the commission to delegate a decision under new section 2A(1) of the Legal Profession and Legal Aid (Scotland) Act 2007, as inserted by amendment 315, to initiate a complaint in its own name only to one of its committees or to one of the commission’s members.?

Amendment 336 allows any member of the commission to take a decision on the disclosure of information under section 41A, which is the power for the SLCC to disclose information relating to complaints, where authorised to do so by the SLCC, which—if agreed to—will be introduced by amendment 533, in the name of Stuart McMillan, in group 18.

Amendment 339 reflects discussions with the SLCC and removes the ability to review a decision that a complaint is eligible to be progressed by the SLCC. There will be other opportunities for a complaints decision to be reviewed, and complaints that are deemed ineligible will remain eligible for review following the decision. ?Amendment 339 seeks to find a balance between allowing important decisions to be reviewed while also streamlining the complaints process. Amendment 345 is consequential to that change.

???Amendment 341 allows for a decision by the SLCC not to initiate the investigation of a services complaint or to close a case following a reasonable settlement offer from the practitioner to be a decision that is capable of being reviewed under new section 20A of the 2007 act. Amendment 346 is a consequential change.

Amendments 337, 340 and 342 to 344 are minor technical amendments.

Amendments 439 to 441 introduce flexibility into the membership of the SLCC board by allowing a minimum number of both lay and legal members, following concerns from the SLCC that it would be difficult for the board to maintain the non-lawyer majority if equal numbers of lay and legal members were required and the absence of a single non-lawyer member could make the board inquorate.??These amendments set out the minimum number of lay and legal members rather than requiring a set number for each.

Amendment 439 sets out that the membership of the SLCC’s board must be made up of at least eight but no more than 20 members in addition to the chair. Amendment 440 requires that the chair and at least four other members must be lay members. Amendment 441 provides that there must be at least three lawyer members.

Amendment 538 removes the requirement that the lawyer members of the SLCC’s board must have at least 10 years’ experience in any of the specified legal categories. Following discussions with the SLCC, that requirement was considered to be overly restrictive, preventing good candidates from being appointed. Therefore, amendment 538 provides additional flexibility regarding board appointments. Members are appointed only after consultation with the Lord President, in accordance with paragraph 2 of schedule 1 to the 2007 act. ?In addition, amendment 538 provides that there must be more non-lawyer members than lawyer members, but that difference must be no more than three.

Amendments 443 and 444 set out that each member of the SLCC board can be appointed for a period of not less than five years and not exceeding eight years, in keeping with the “Code of Practice for Ministerial Appointments to Public Bodies in Scotland”, which allows for a maximum period of appointment, including reappointment, of eight years.

Amendment 446 adds the consumer panel to the list of mandatory consultees where the Scottish ministers propose to make regulations to amend the powers or duties of the commission. Amendment 448 will expand the functions of the panel to include making recommendations to the Lord President regarding any of the Lord President’s functions under the bill. Amendments 445 and 447 are consequential.

I am happy to have worked with Maggie Chapman on amendments 539 and 540, which require the consumer panel to be adequately funded and resourced in order to effectively discharge its functions. The Scottish Government’s expectation is for the SLCC to have the capacity to fund the consumer panel’s extended remit as it deems appropriate, including the possibility of implementing an additional levy on the regulated profession. I therefore ask members to support all the amendments in the group.

I move amendment 312.

The amendments in this group seek to amend the Solicitors (Scotland) Act 1980 to bring clarity to the Law Society’s role in the investigation of conduct and regulatory complaints.

Amendment 468, which relates to conduct complaints, will do a number of things. It makes the necessary consequential and procedural changes following the bill’s introduction of a new power to allow the Law Society to initiate conduct complaints and investigate them without being required to first remit them to the SLCC. It will provide the Law Society with powers when investigating and determining conduct complaints, such as the ability to propose or accept a settlement in respect of a complaint and the ability to discontinue an investigation or reinstate a discontinued investigation. The amendment will provide avenues of appeal to the SSDT and, subsequently, to the court on those decisions.

The amendment will provide measures that may be taken by the Law Society if it makes a determination upholding a conduct complaint. Those measures include censure and the imposition of a fine or of conditions on a solicitor’s practising certificate.

The amendment will also make the system for conduct complaints more efficient, saving time and resources. The Law Society currently investigates complaints about “unsatisfactory professional conduct”, while the most serious complaints of?“professional misconduct” are prosecuted before the SSDT. In cases?where the SSDT?is satisfied that the solicitor is not guilty of misconduct, it can decide that the solicitor is, however, guilty of the lesser matter of unsatisfactory professional conduct. In such cases, it is required to refer the complaint about UPC to the Law Society.? Amendment 468 will give the SSDT a new power to deal with complaints about unsatisfactory professional conduct that arise from an initial complaint of?professional misconduct.

Amendment 469 makes provision in respect of regulatory complaints and mirrors the conduct complaints provisions in amendment 468. It will introduce the ability for an authorised legal business or a licensed provider to appeal to the tribunal against a decision by the Law Society to uphold a regulatory complaint. The decision of the SSDT will also be appealable to the court.

It is important that the Law Society, in its role as a category 1 regulator, can consider and determine regulatory complaints without being overly prescriptive about how such complaints will be processed, and that should be provided for in the practice rules. Amendment 470 will therefore require the?Law Society to make rules about the procedures for making decisions in relation to complaints. Those rules must have the approval of the Law Society and they will not have effect unless they are approved by the Lord President.

Amendment 472 will make related modifications to the 1980 act, including requiring the Law Society to consult the commission before making any rule relating to the society’s functions under the 2007 act.

Amendment 478 will make consequential changes relating to conduct complaints to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Those changes mirror the changes that will be made to the 1980 act by amendment 468, in so far as they relate to conveyancing and executry practitioners.

I ask members to support the amendments in the group. I move amendment 468.

On page 32 of the bill, section 41 sets out that, in order for the SLCC to apply the eligibility test, it will need to consult the Lord President, Scottish ministers, all the regulators and the consumer panels with regard to making those decisions. I appreciate that we do not yet have the exact detail to give to Mr O’Kane, but, as the process moves forward, there will be a consultation with all stakeholders.

Moving on, the improvements that are proposed in the bill and in the amendments in my name allow the SLCC to operate a flexible, agile complaints process that allows a proportionate approach to different types of complaints. The amendments in my name have been developed with the SLCC, which has 15 years’ experience of dealing with more than 18,000 complaints. It understands where delays or blockages occur and where improvements could be made to the process.

The bill provides a proportionate and agile approach. Unfortunately, Mr O’Kane’s amendments in this group propose to reintroduce prescriptive provisions to the legislation, which would risk the improvements in the bill that would deliver efficiencies. Those efficiencies would be achieved through a streamlined triage process in particular, which would allow complaints that required further investigation to proceed swiftly either to resolution or to the relevant regulator, and complaints that were not eligible for investigation to be closed. That is in everybody’s best interests.

In its letter of 17 January to the committee, the Law Society said:

“The Bill as lodged contains many important steps to speed up and improve the complaints system. The eligibility process overseen by the SLCC is improved, meaning conduct complaints reach us more quickly”

I am concerned that Paul O’Kane’s amendments would cut across those improvements.

It is important to note that the committee raised concerns in its stage 1 report that we must

“ensure a system is in place to efficiently deal with complaints without merit to avoid clogging up the system and causing unnecessary delay.”

That is still a key component of the proposed system, as the bill requires the SLCC to make rules about its practices and procedures, including with regard to decisions that a complaint does not merit investigation.

In making and varying these rules, the SLCC will be required to consult with the Lord President, the professional bodies, the consumer panels, other consumer groups and groups that represent the interests of the legal profession, as I mentioned to Paul O’Kane. The SLCC will also need to publish the rules. I consider that that provides sufficient checks to ensure that the committee’s concerns will be addressed.

The bill also provides an opportunity to remove some of the, at best, legalistic and, at worst, offensive language, such as “frivolous” and “totally without merit”, that the SLCC is required to use with complainers when it tells them that aspects of their complaint are not eligible for investigation. Rosemary Agnew, the Scottish Public Services Ombudsman, touched on that at stage 1. She noted:

“There are things in the bill that will help, such as the flexibility to make rules. That will enable some of the language issues to be addressed, because we can represent things in ways that are perhaps more accessible to everyday folk.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 14 November 2023; c 10.]

Paul O’Kane’s amendments serve to add back the complexity and prescription and would increase inefficiency and delay. If his amendments are supported, it would raise significant concerns over the financial assumptions about efficiency improvements that will arise from the bill. I therefore ask Mr O’Kane not to press his amendments in this group. If he does press them, I urge members to oppose them. I ask members to support my amendment 316.

Amendment 572 seeks to reinstate the express provision contained in section 12 of the Legal Profession and Legal Aid (Scotland) Act 2007 on how the SLCC must notify the complainer and practitioner of a decision to uphold or not to uphold a service complaint. The removal of section 12 is one of a number of changes that are made by the bill to enable the SLCC to deal with complaints with greater flexibility. The intention is that service complaints will not all be required to be dealt with by the committee members, but by SLCC committee members and members of staff as appropriate and as laid down in the SLCC’s practice and procedure rules.

The bill at section 66 provides a proportionate and agile approach, which makes provision for the SLCC to produce such practice and procedure rules for dealing with service complaints. It is intended that requirements that are broadly equivalent to those set out in section 12 will instead be set out in the rules. There will be no lessening of the SLCC’s responsibility in that respect.

I thank Mr O’Kane for his comments. As I have always said, my door is open as we move to stage 3. I acknowledge what he said about the chicken-and-egg situation. I reiterate that section 67(3) will allow the Law Society or any other legal regulator to raise a complaint in its own name if it wishes something to be investigated, but I am happy to work with Mr O’Kane.

Amendment 347 agreed to.

Amendments 348 to 352 moved—[Siobhian Brown]—and agreed to.

Amendments 644 and 645 not moved.

Amendments 353 to 355 moved—[Siobhian Brown]—and agreed to.

Section 60, as amended, agreed to.

Section 61—Power of Commission to request practitioner’s details in connection with complaints

Amendments 356 to 361 moved—[Siobhian Brown]—and agreed to.

Section 61, as amended, agreed to.

Section 62—Services complaints: special provision for complaints against unregulated persons

Amendment 527 moved—[Marie McNair]—and agreed to.

Section 62, as amended, agreed to.

Section 63—Handling complaints

Amendments 362 to 369 moved—[Siobhian Brown]—and agreed to.

Section 63, as amended, agreed to.

Section 64—Annual general levy and complaints levy

Amendments 370 and 371 moved—[Siobhian Brown]—and agreed to.

Section 64, as amended, agreed to.

Section 65—Unregulated providers of legal services: voluntary register, annual contributions and complaints contributions

The amendments in this group relate to and have been shared with the Scottish Legal Complaints Commission. They also align with the committee’s stage 1 recommendations.?

Amendment 319 will allow the SLCC to close a services complaint when a practitioner accepts a settlement proposed by the SLCC but the complainer does not.

The SLCC will also be able to decide either not to initiate the investigation of a services complaint or to close a complaint, when it considers that the practitioner has offered the complainer a settlement that the SLCC considers to be fair and reasonable and when the SLCC is satisfied that the proposed settlement will remain available?for 28 days after the?decision not to initiate an investigation.??

It is intended that the SLCC may close the case where it learns that the practitioner has made a reasonable offer prior to the complaint being lodged with the SLCC, but which the complainer has refused. The amendment is intended to speed up the redress process. The intention is for the power to be used where the practitioner has made an offer that is unlikely to be exceeded by a full determination of the complaint.

Amendment 481 is a consequential change.

Amendment 331 will apply where the SLCC upholds a services complaint against a practitioner. Where the practitioner was a partner of a firm at the time when the service was provided, it will allow the SLCC, when upholding a services complaint, to give direction to take steps to redress the complaint to the practitioner’s firm instead of to the practitioner. Amendments 332, 333 and 334 are all consequential to that.

Amendment 450 seeks to increase the transparency and amount of information that is contained in the SLCC’s annual report. It will ensure that the annual report contains details of the work of each review committee and of the steps taken to ensure that each review committee is able to act independently of the SLCC when considering and determining each application for review. In addition, when preparing the annual report, the SLCC will be required to consult with the Lord President, the independent advisory panel of the SLCC and each category 1 and 2 regulator.

I ask members to support all the amendments in the group, and I move amendment 319.

Amendment 503 provides that, where a solicitor holds a practising certificate subject to conditions, they must give the Law Society six weeks’ notice of their intention to apply for a practising certificate. The Law Society will then have discretion to grant or refuse the application, or to issue a certificate subject to conditions. Those conditions can be varied or removed, or further conditions imposed, after giving the solicitor the opportunity to make representations. Failure to comply with a condition may be treated as professional misconduct or unsatisfactory professional conduct on the part of the solicitor.

In addition, amendment 503 will insert proposed new section 15A into the 1980 act to give the Law Society similar discretion at any time to vary, remove or impose any conditions in relation to a practising certificate in other cases where they consider it to be in the public interest to do so, or for the protection of the public. Similarly, failure to comply may result in a finding of professional misconduct or unsatisfactory professional conduct. The changes will also help to protect those who use legal services by strengthening the Law Society’s ability to suspend a solicitor’s practising certificate in cases where it considers it necessary to do so in the public interest, or for the protection of the public.

Amendment 504 will introduce a new power for the Law Society, where a solicitor has been suspended for charging excessive fees, to terminate their suspension on its own initiative, and amendment 505 will introduce a similar new power where a solicitor has been suspended for failure to comply with accounts rules.

As we come to the end of stage 2, I want to thank members for their consideration and engagement thus far. I want to move swiftly to stage 3, so my door remains open to members who wish to discuss the bill ahead of the final stage.

I ask members to support the amendments in the group.

I move amendment 503.

Amendment 503 agreed to.

Amendments 504 to 507 moved—[Siobhian Brown]—and agreed to.

Amendment 508 not moved.

Amendments 509 to 520 moved—[Siobhian Brown]—and agreed to.

Schedule 3, as amended, agreed to.

Sections 88 and 89 agreed to.

Section 90—Ancillary provision

Amendment 521 moved—[Siobhian Brown]—and agreed to.

Section 90, as amended, agreed to.

Section 91—Interpretation

Amendments 522 and 523 moved—[Siobhian Brown]—and agreed to.

Amendment 641 not moved.

Section 91, as amended, agreed to.

Sections 92 and 93 agreed to.

Long title agreed to.

The policy intention behind my amendments in this group is to create clear rules for the SLCC when investigating a handling complaint. The rules will be available to relevant professional organisations and consumers, which will increase the transparency of the complaints process.

Amendments 376 to 378, 380, 383 and 384 all make changes relating to the rules about the SLCC’s practice and procedure in dealing with complaints, including altering what such rules must include provision about.

Amendments 375, 385 and 528 are minor and technical tidying-up amendments, and amendments 379 and 382 are consequential.

The SLCC supports the amendments in the group. I therefore urge the committee to support the amendments.

I move amendment 528.

Amendment 528 agreed to.

Amendments 375 to 385 moved—[Siobhian Brown]—and agreed to.

Section 66, as amended, agreed to.

Section 67—Conduct or regulatory complaint raised by relevant professional organisation

Amendments 386 to 390 and 529 moved—[Siobhian Brown]—and agreed to.

Section 67, as amended, agreed to.

After section 67

Amendment 530 moved—[Siobhian Brown]—and agreed to.

Section 68—Conduct complaints: consideration by relevant professional organisations

Amendments 531, 392 to 394 and 532 moved—[Siobhian Brown]—and agreed to.

Section 68, as amended, agreed to.