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There has been a lot of engagement with the Lord President regarding waivers, so we would have to engage further with him if we were going to change anything, going forward. I suggest to Mr O’Kane that, as we move to stage 3, I would be happy to look at how we can strengthen the provision to make him feel more comfortable.

Amendment 179 agreed to.

Amendments 180 to 188 moved—[Siobhian Brown]—and agreed to.

Amendment 543 not moved.

Section 21, as amended, agreed to.

Section 22—Powers to amend or revoke directions

Amendments 189 and 190 moved—[Siobhian Brown]—and agreed to.

Amendment 544 not moved.

Section 22, as amended, agreed to.

Section 23—Reports on directions

Amendment 191 moved—[Siobhian Brown]—and agreed to.

Section 24—Register of directions

Amendments 192 to 199 moved—[Siobhian Brown]—and agreed to.

Amendment 545 not moved.

Section 24, as amended, agreed to.

Section 25—Right to provide legal services

Amendments 455 and 456 amend respectively the new offences of taking or using the title of lawyer, or of pretending to be a regulated legal services provider. The amendments will increase public protection with regard to the term “lawyer”, as false use of the term will now be an offence without also having to commit intent to deceive. Likewise, a person can no longer falsely advertise that they are regulated.

Public polling by the Government and the Law Society has shown support for the title of lawyer being given the same protection as solicitor. That was considered important in order to protect the consumer, who might not understand the distinction between the two when seeking legal services from a regulated professional.

The committee has also heard anecdotal evidence of solicitors being struck off and subsequently providing unregulated legal services to the public under the title of lawyer. We view that there is a public protection concern in such cases.

Amendment 457 makes changes to section 84 to make it an offence for a person who is not a member of the Faculty of Advocates to, without reasonable excuse, take or use a name, title, addition or description implying that the person is a member of the faculty. Currently, a person commits an offence only if the person pretending to be an advocate does so with intent to deceive, and the amendment means that there is no longer any need to prove intent to deceive for the offence to be committed.

Amendment 250 widens the offence of pretending to exercise acquired rights to include any false claim of authorisation without a reasonable excuse, not just those made with the intent to deceive.

Amendment 458 alters the power for the Scottish ministers to make regulations to amend section 32 of the 1980 act to make provision for, or in connection with, its being an offence for an unqualified person to draw or prepare certain documents or provide certain other legal services.

Instead of being able themselves to initiate the regulation-making power, Scottish ministers will be able to exercise such a power only following a request to do so from the Lord President, a regulator or the consumer panel. Prior to making a request, the requesting body must consult the bodies in the list other than itself and secure agreement with the Lord President. The amendment seeks to add an approval mechanism for the Lord President before the Scottish ministers can seek to make regulations in that area.

I move amendment 250 in my name and I ask that members support all amendments in the group.

Yes, after engagement, we decided that amendment 40 is the right way forward.

Amendment 1 agreed to.

Amendments 2 to 4 moved—[Siobhian Brown]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Regulatory objectives

Amendments 38 and 39 moved—[Siobhian Brown]—and agreed to.

Section 2, as amended, agreed to.

Section 3—Application of the regulatory objectives

Amendments 40 to 42 moved—[Siobhian Brown]—and agreed to.

Section 3, as amended, agreed to.

Section 4 agreed to.

Section 5—Power to amend the regulatory objectives and professional principles

Amendment 43 moved—[Siobhian Brown]—and agreed to.

Section 6—Meaning of “legal services” and “legal services provider”

Amendments 44 and 45 moved—[Siobhian Brown]—and agreed to.

Section 6, as amended, agreed to.

Section 7—Meaning of regulatory functions

Amendment 46 moved—[Siobhian Brown]—and agreed to.

Section 7, as amended, agreed to.

Section 8—Regulatory categories

Following engagement with Tess White on amendment 638, I am content to support her provision and I will not be moving my corresponding amendment 508. Similarly, I am content to support Paul O’Kane’s amendment 639. We may have to revisit the issue at stage 3 to ensure that the revised provisions work fully with the wider legislation and make any adjustment to reflect the intention.

However, I require to move amendment 27, which is consequential to the Government’s principal amendment 508, in order to allow the debate on this group to take place. I will seek members’ permission to withdraw amendment 27 at the end of the debate.

The Government is willing to support amendment 638 rather than our amendment 508, and I would urge members to support amendments 638 and 639.

I move amendment 27.

Good morning. I will make a few remarks before we turn to amendment 1. We have an extraordinarily large number of amendments before us, so I intend to keep my remarks as short as possible to provide the committee with the information that members need while ensuring that we can proceed in a timely manner to deal with them all. I am happy to answer any questions that members have.

I also want to thank all those who have engaged with the bill and supported the development of the amendments that I have lodged. I want to take the opportunity to note the constructive engagement that I have had, in considering all the amendments, with the Lord President and the senior judiciary, the Law Society of Scotland, the Faculty of Advocates, the Scottish Legal Complaints Commission, the consumer panel of the Scottish Legal Complaints Commission and the bodies that are represented on it.

Draft amendments were shared with the senior judiciary, and I have reflected carefully on their comments. I note the comments of the Lord President in his letter to the committee on 23 December, in which he notes:

“Our significant ... concerns have been addressed”

and that

“the senior judiciary are broadly content with the amendments lodged”.

I also welcome the comments of the Law Society in its letter to the committee on 10 January, in which it shares that view. I hope that the committee and stakeholders are reassured by those comments and that they can support the amendments.

I acknowledge that the bill has attracted differing views from stakeholders; we have had to balance those differing views as we aim to modernise the regulatory system. If the amendments that are proposed at stage 2 are agreed, the bill will achieve the right balance, by delivering the priorities of the stakeholders and a modern, more flexible regulatory system.

I turn to amendments 2 and 43. The Law Society of Scotland, the Faculty of Advocates and the senior judiciary raised concerns at stage 1 about the provision in the bill that conferred powers on the Scottish ministers. The Scottish Government absolutely recognises the importance of an independent legal profession and is committed to upholding that independence. The intention has been that the bill would protect the independence of the legal profession while introducing greater transparency and accountability with regard to the profession’s duty to work in the public interest.

I wrote to the committee in September 2023 to say that I would lodge amendments to remove the references to the Scottish ministers that caused concern, and I confirmed that again in my response to the stage 1 report. Amendments 2 and 43 are the first of a number of amendments that remove that provision, and the committee has been provided with a list that highlights those amendments. As this is the same change throughout the whole bill, I will not repeat the reasoning in each group.

Amendment 43 will remove section 5 of the bill, which would have conferred a delegated power on the Scottish ministers to amend the objectives of legal services regulation and the professional principles to which persons providing legal services should adhere. Amendment 2 is consequential to that change.

Amendment 3 makes a change to section 1, removing the reference to the ministerial powers in sections 19 and 20. It is consequential on amendments to those sections that have the effect of transferring the powers under those sections from the Scottish ministers to the Lord President.

Amendments 1, 4, 38 to 41 and 46 are technical amendments to clarify the language in places in part 1 of the bill. Amendment 42 adds the Scottish Solicitors Discipline Tribunal to the list in section 3(5) of named regulatory authorities to which the regulatory objectives apply. Following discussion with Scottish Mediation, amendments 44 and 45 clarify the meaning of the term “legal services” to ensure that the definition does not include alternative dispute resolution activities.

I ask members to support the amendments in this group.

I move amendment 1.

Amendment 236 is linked to amendments in group 8 that remove the role of Scottish ministers from the process of acquiring and exercising the right to provide legal services. The amendment removes the involvement of the Scottish ministers in respect of any application enabled under section 31 by an accredited regulator to surrender its acquired rights. Amendments 238, 239, 242, 243 and 244 are consequential. Applications are to be made to the Lord President alone.

Amendment 240 inserts new subsection (2A) into section 30, making particular provision where an application is to surrender all of the regulator’s acquired rights. The consultation undertaken by the regulatory body under subsection (1A) must seek the views of the body’s authorised providers about whether a majority of those providers would like another regulator to authorise them to exercise and regulate their rights or to form a body and to submit an application under section 25 to seek accreditation to authorise them to exercise and regulate their acquired rights.

Amendment 245 provides that the direction-making power under section 30 is exercisable by the Lord President acting alone, rather than together with the Scottish ministers. Amendments 246 and 247 provide that those directions can be varied or revoked by the Lord President.

Amendment 248 makes changes to the conditions and process of granting an application to surrender some or all of the acquired rights, placing publication and notification requirements on the Lord President

Amendment 249 provides that, where all a regulator’s rights are to be surrendered, the Lord President’s notice may provide that the notice takes effect either when the regulator’s legal services providers are authorised by a new regulator or when the providers form a new body and that body becomes an authorised regulator.

Section 34, on revocation of acquired rights, allows Scottish ministers to revoke the approval of an application under section 29 when it appears to them that the body that made the application had failed to comply with a direction under section 33.

Amendments 264, 265, 266 and 269 reflect the shifting of the role to the Lord President alone.

Amendments 267 and 268 set out the notification, publication and consultation steps that the Lord President must take when they wish to revoke the approval.

The bill grants ministers the power to intervene by establishing a new regulator, transferring rights to another regulator, or, if necessary, assuming direct regulatory responsibilities themselves.

Amendment 270 transfers the responsibility and authority to the Lord President. In the new section that it introduces, powers are given to the Lord President to seek appropriate arrangements where an accredited regulator is a discontinuing regulator. That will involve consulting each authorised provider to determine, in particular, whether a majority of the authorised providers would like another regulator to authorise and regulate them. If the majority is in favour of another regulator authorising and regulating the providers, the Lord President, where the new receiving regulator is an accredited regulator or a body that has had an application granted under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, can amend the regulatory functions of the receiving regulator to enable it to regulate the authorised providers of the discontinuing regulator.

In any other case, the Lord President can ask the Scottish ministers to make regulations subject to the affirmative procedure to amend the functions of the receiving regulator. As noted with the previous group, the Lord President and the Law Society have welcomed these amendments.

I move amendment 236 and ask that members support the amendments in the group.

Amendment 236 agreed to.

Amendments 237 to 249 moved—[Siobhian Brown]—and agreed to.

Section 31, as amended, agreed to.

Section 32—Offence of pretending to have acquired rights

The Scottish Government recognised the differing views on the primary recommendation in Esther Roberton’s report, so it committed to seeking a wide range of views through consultation to inform the shape and extent of the reform. The bill takes a proportionate approach that seeks to balance and deliver the key priorities of all stakeholders, and it has been shaped by the responses to the consultation. As I said in my opening statement, we have had to balance those differing views as we aim to modernise the regulatory system.

The consultation highlighted that views were evenly split between support for and opposition to the primary recommendation. However, it is important to state that there are many areas where there is broad agreement between stakeholders, such as the introduction of entity regulation, protections around the title lawyer, and improvements to the complaints system. It is agreed on both sides of the polarised debate that reform is long overdue and is needed through the bill.

The bill will require that regulators of legal services exercise regulatory functions independently of other functions and activities. By removing complaints handling from regulators, the bill reflects the position that 60 per cent of the respondents supported, retaining and improving the current position in respect of responsibility for complaints handling. It was considered important that the body that is responsible for setting the rules deals with conduct complaints in relation to failure to adhere to those rules.

The SLCC will remain the single gateway for all legal complaints against legal practitioners for consumers of legal services, with a limited exception. When a complaint is identified by a regulator, it will be able to investigate it immediately.

The bill will introduce a more efficient and flexible system to allow complaints to be dealt with more swiftly. The Scottish Government has given very careful consideration to which bodies should have responsibility for investigating conduct, services and regulatory complaints. Although there is general agreement that improvement is needed, there is again significant divergence in views on what that improvement should look like. I think that everybody appreciates the need to find a balance as the bill progresses.

The bill retains a multi-agency approach, but it introduces changes that will vastly simplify and strengthen the process to the benefit of consumers, practitioners and the bodies that are responsible for handling complaints. The bill establishes a new legislative framework that will allow the SLCC to design its own flexible and responsive complaints system. It is intended that a proportionate system will be created for processing complaints. The bill will also remove steps in the current system that slow down the investigation of complaints by allowing the Law Society and the Faculty of Advocates to raise a complaint and directly investigate it without first going through the SLCC in certain circumstances. The introduction of those new systems, as well as the new ability for the SLCC or the regulator to initiate its own complaints, will be hugely beneficial for consumers and practitioners alike.

The Scottish Legal Complaints Commission currently has a role in monitoring trends in legal complaints and making regulations with which the regulator does not have to comply. The bill will build on that in providing greater independent oversight of complaints handling by allowing the SLCC to set minimum standards in consultation with the regulators and the Lord President. That will ensure consistency and best practice in the way that complaints are handled and it will mean that consumers should receive redress as quickly as possible and that fewer complaints should reach the SLCC.

Setting minimum standards for regulators will also improve the experience for those who have a complaint to lodge and for practitioners. The committee heard evidence from Rosemary Agnew, the Scottish Public Services Ombudsman, that that approach is best practice.

I appreciate that, in this part of stage 2, we are focusing a lot on removing ministerial powers and on all the legal aspects of the bill. In future sessions, we will consider how consumer interests are strengthened and improvements to the complaints system. The voice of the consumer will be placed at the heart of legal regulation by the expansion of the consumer panel’s remit. The panel will be able to make recommendations on, for example, client relation rules and price transparency. The introduction of the consumer principles will reinforce that, as the bill will require that the views of consumers are understood and taken into account.

I note the concerns that the Law Society raised in its letter of 17 January, in which it advised that the problems in the complaints system today are not because of who regulates but stem from complex, cumbersome and confusing processes that are required by statute. I have lodged a significant number of amendments that have been developed following engagement with the bodies that are involved in the complaints system, and they will streamline and deliver a more proportionate and flexible system to better serve legal practitioners and consumers. I will speak to those amendments when they are debated in subsequent groups.

I will address one of my concerns with Tess White’s amendments. At the moment, the Court of Session is responsible for the regulation of advocates, so we would undermine that court if we agreed to her amendments. That is just one of my concerns. However, I am very happy to discuss with Tess White before stage 3 how we can strengthen the consumer’s voice, which I am trying to do with my stage 2 amendments that we will discuss further down the track.

We do not have a timescale for that at the moment, because we are still engaging with all the organisations that are involved. It is a work in progress.

Would you like me to set out what the recommendations on the victim contact team were and what it should ultimately look like, even though I do not have a timescale at the moment?

Thank you for inviting me to attend this meeting to discuss the Government’s commitment to reforming the victim notification scheme—the VNS. I am aware that the committee took evidence last week on our intention to use the Victims, Witnesses, and Justice Reform (Scotland) Bill to deliver the reforms to the VNS that require primary legislation, and I am also aware of the real interest and desire to ensure that victims’ needs are being met.

As the committee will be aware, through our engagement with the victims task force, the Government heard concerns from stakeholders that reflected the views of victims themselves that the VNS was not operating effectively, which is why we commissioned an independent review to ensure that the scheme was fit for purpose and that it could serve victims more effectively.

During the review, the chair, Alastair MacDonald, and the vice-chair, Fiona Young, undertook a considerable amount of engagement with justice partners, victim support organisations and victims. They also considered international examples of victim notification. The review report was published in May last year, and it contained 22 recommendations, some of which comprise several sub-parts, that were rooted in that substantial engagement.

The VNS is complex, and it covers three separate schemes. Two of those relate to the criminal justice system, both of which are effectively identified by the length of the offender’s sentence. The third scheme is for victims of mentally disordered offenders, which is the term that is used in the review. The review recommendations cover all three schemes.

Scottish Government officials engaged with justice partners and victim support organisations to discuss in detail the recommendations to inform and develop our response to the review, which was published in October. The Government agreed either fully or in principle with the majority of the recommendations, including the central proposal for creating a victim contact team.

Some of the review’s recommendations are aimed specifically at justice partners, some are for the Government and others are for the Government to lead in collaboration with partners. Taken together, we anticipate that the recommendations will require a mix of legislative and administrative changes.

At the time of publishing our response to the review, I made it clear that progressing the reforms is a priority for the Government, and that we would use the opportunity of the Victims, Witnesses, and Justice Reform (Scotland) Bill to ensure that the reforms that are needed to be taken forward through primary legislation could be done at pace. However, I acknowledge that that will be a new part of the bill, so I intend to limit the number of amendments to those that we consider to be essential for the legal underpinning of VNS reform.

I need to be clear that we are at the very early stages of reforming the system, building on the extensive consultation that took place with justice partners and victim support organisations after the review’s report was published, which informed our response.

Reforming the scheme is about ensuring that it works well for victims, and I am aware that the victim notification scheme can support victims only to a certain extent. It is not an absolute remedy for traumatic experiences. The concluding sentence of the independent review reflects that. It says:

“a human, trauma-informed and personalised process ... can go some way to help victims”.

Improving the VNS is part of our wider commitment to transforming how justice services are delivered, which includes putting at the heart of the system the voices of victims and a trauma-informed approach. The reforms will put the needs of the victims firmly at the heart of the notification scheme. By increasing the information that is available to victims, improving communication across justice agencies and making the system more accountable, we can ensure that the scheme continues to be as effective and trusted as possible.

Reform is about ensuring that the scheme works well for victims, which is, I think, what we all want to achieve. We share the vision in the conclusion of the review report, which, as I have already mentioned, is to have

“a human, trauma-informed and personalised process, which can go some way to help victims in their difficult situation”,

and we are committed to creating that with our partners.

Convener, I am pleased to be able to work on the bill with the committee and the Cabinet Secretary for Justice and Home Affairs. The bill will improve victims’ and witnesses’ experiences and strengthen their rights. I look forward to taking your questions.

At the moment, the VNS is formed of three schemes.

The victims of offenders who have been sentenced to more than 18 months of imprisonment have the right to receive information about the release of the offender, and some of those victims have the right to make recommendations when decisions are being made about release. That is referred to as the criminal justice VNS. As of 2 December, there are 3,057 victims on that VNS.

The second scheme involves victims of patients in the forensic mental health system who are subject to a compulsion order and restriction order. Those victims are similarly entitled to rights of information and the making of recommendations. That scheme is referred to as the CORO VNS. As of 2 December, 34 victims are registered on that.

Victims of offenders who are sentenced to fewer than 18 months are entitled, on request, to more limited information about the offender’s release. That is known as the victim information scheme—the VIS. Currently, 58 people are registered on that scheme.

A lot of organisations are involved in the VNS. It is complex, so I will give you some background: the Crown Office and Procurator Fiscal Service plays a role at the start of the process by distributing registration packs to victims; the Scottish Prison Service sends written information to victims; the Parole Board for Scotland and the Mental Health Tribunal for Scotland facilitate victim representations; and the Scottish Government sends written information to victims of mentally disordered offenders and also provides release information to the registered victims of offenders detained in secure accommodation. In addition, victim support organisations provide support and assistance to victims registered on the VNS and to victims who can request information under the VIS. Some victim support organisations also now have proxy rights to information.

I hope that that gives you some background in relation to all the organisations that are involved and with which the victim contact team will need to engage.

To go back to your original question, as we move to stage 2, we are not only considering underpinning the victim contact team. We are looking at including the CORO VNS in the standards of service, as set out in recommendation 2 of the review. We are looking at applying discretion to the list of relatives eligible to register for the scheme, as set out in recommendation 11, with that discretion applying across the three schemes. We are looking at children over the age of 12 being able to authorise an adult to receive information on their behalf, which would be done on a case-by-case basis, according to the child’s capacity and choice, as set out in recommendation 14, and that would also apply to all three schemes. We are looking at taking a power to expand the information available under the victim information scheme, as set out in recommendation 15. The power to amend the VIS would bring that scheme more generally into line with what is happening with the VNS. We are also looking at data sharing and a duty to co-operate in order to establish the victim contact team, which covers recommendations 17, 20 and 21 and would apply across all schemes.