Seòmar agus comataidhean

I will briefly speak to my amendments in the group, which are amendments 644, 645 and 650. The amendments would give powers to relevant professional organisations that were considering initiating a complaint to compel practitioners, firms or authorised legal businesses to provide information and documents relating to a matter that was under consideration for a complaint.

At present, regulators can require information only once a complaint has been received, which means that they are unable to require practitioners and authorised legal businesses to provide them with information in circumstances in which they might wish to consider initiating their own complaint.

Members will be well aware of instances in which regulators have been urged to be more proactive in safeguarding consumers and addressing concerns that have been raised. Many of us will have had casework in that regard. Currently, there is an immediate stumbling block, in that regulators cannot access documents until a complaint has been initiated. Without having access to information that shows the need for a complaint, it can be a waste of time or a wasted opportunity to initiate a complaint.

There is an opportunity to allow regulators to function properly as regulators by finding out whether there is a complaint to be pursued. That could lead to enhanced consumer protections by allowing regulators to discover instances of concern earlier, to initiate complaints based on more evidence earlier and, thus, to intervene on behalf of consumers at a much earlier stage. Without my amendments, regulators might still be seen as being too reactive and not proactive enough in protecting the interests of consumers and dealing with instances of poor conduct.

It has been interesting to hear what the Government has to say on the principle. I accept that the minister recognises the principle and intent of my amendments and this discussion, and that she is keen that there be the opportunity for a more proactive approach in relation to compelling the provision of information, as we have debated.

I suppose that it might be a chicken-and-egg situation. If we give regulators the power to make their own complaints, how will they know whether to pursue a complaint without the information that they require? Therefore, I think that the issue should be further explored and discussed in advance of stage 3. On that basis, I am keen to continue to engage with the minister, if she is willing, in order to fully understand the impact of her amendments, where there might be gaps and whether we could do something in advance of stage 3.

I thank the minister for her engagement on the issue of disclosure of information to the public, specifically on amendment 536 in her name.

The improvements that we are making to the bill and legal complaints processes, such that information will finally go out into the public domain on on-going complaints, are welcome, both to protect potential consumers looking to engage services and to increase transparency around on-going issues.

The minister will be aware of my engagement on amendment 536 and of my early decision not to lodge similar amendments while I took advice and engaged with stakeholders on the question of whether that amendment would be sufficient to meet everyone’s desired intent. I believe that amendment 536 provides an assurance relating to disclosure of information, which is, as I have said, important.

However, I have lodged amendment 536A in order to make it absolutely clear that information may be disclosed under the new section 51A that would be created by amendment 535. The stakeholders that I have engaged with believe that a small addition to the Government’s amendment would provide sufficient cover for the disclosure of information about complainants and would ensure that that is absolutely clear. That fix would mean that some of the existing restrictions on the disclosure of information, which are found in section 52 of the 2007 act, would not apply when information is being disclosed under the public interest test, as set out by the minister’s amendment 535. The last thing that we would want to do would be to create a power to disclose information when that is in the public interest, only for that power to be constrained and made potentially meaningless by restrictions in section 52 of the 2007 act. I hope that members will see the value in supporting a technical fix to ensure that the public interest disclosure power works well to improve the transparency that we all want to see.

I am grateful for the opportunity to speak on the group and on my amendment 639 in particular. I thank the minister for her comments and for accepting the amendment. It essentially does what everyone’s amendments in the group intend to do, which is to ensure that there is fair recovery of costs and a polluter pays principle in regard to the approach taken when additional costs are incurred in pursuit of regulatory objectives. Obviously, the issue relates to the behaviour of certain individuals and the way that the Government can legislate to support the reclamation of costs.

It is clear that Tess White’s amendment and a number of amendments in this group merit further discussion when we progress to stage 3, but agreeing to my amendment at this stage would begin that process.

Before we move into lengthy consideration of the amendments that are before us, I thought that it would be helpful to put on the record some general comments about this section and the ministerial powers that apply to the amendments in this group, so that I will not have to repeat my comments in any of the subsequent groupings.

For those of us on the committee who heard the stage 1 evidence, it was clear that the bill did not start out in a place of consensus. There was much concern about the warnings that came from respected organisations, including the Law Society, the Faculty of Advocates and the senior judiciary, that were in many ways unprecedented. Such was the level of concern about the threat to the independence of the judiciary from the imposition of ministerial powers that it seemed that the bill was, at points, quite significantly flawed and that it would require subsequent amendments, such as those that are before us. In saying that, credit should be given to the minister and the team of officials for the work that they have done on the amendments over many months, and for their work with stakeholders to sufficiently address risk.

I also thank the minister for her constructive engagement with me in listening to many of the concerns about those aspects of the bill and, more widely, for offering a collegiate way of working to address some of the issues. I hope that we will continue with that collegiate approach throughout stage 2 consideration and into stage 3.

I still have some areas of concern in the bill more widely but it would not be appropriate for me expand on those now. To avoid dragging on for too long, I just confirm my support for amendments in the group and say that I am keen to continue the debate as we move through the remaining amendments. I am grateful to you, convener.

I put on the record my thanks to the many stakeholders who provided briefings in advance, some of which were referenced by Tess White, including the Law Society of Scotland, the SLCC, the Faculty of Advocates and others. I also thank them for producing their briefings quickly since last week’s lodging deadline.

I do not support Tess White’s amendments in this group, although I appreciate that they are probing in nature. They allow us a useful opportunity to discuss and debate why the Government alighted on maintaining the current divisions for regulatory duties, rather than establishing a new regulator. However, I do not support the proposals in the amendments to shift all complaints proceedings to the SLCC, for many of the same reasons why the committee arrived at its view in considering the evidence that was presented to us at stage 1.

We recognise that there are significant challenges in the complaints system. I think that everyone acknowledges that it is complex and that it can be inefficient and slow, which can create a bad experience for consumers of legal services who wish to raise complaints. Through its genesis, the bill tries to go some way in addressing some of those issues. I and many other stakeholders that I have spoken to want change to be effected sooner rather than later. However, to go through a lengthy process that would last for many years and be at public expense in order to transition the functions that are currently conducted by the Law Society of Scotland and the Faculty of Advocates to a single body could result in significant delays for consumers, who need improvements right now.

Even if we had chosen to consider what is proposed in the amendments at an earlier stage of the bill’s conception, we would not have got some of the noticeable benefits that are now coming through. As I said, putting new structures in place and placing new duties on the SLCC would require a breadth and depth of reform and change to the SLCC, not least to its resource and staffing.

I am interested in the fundamental principle that membership organisations should have an obligation to monitor, investigate and, if necessary, take action on their members’ conduct. That is, in essence, what we are debating today. We should ensure that organisations such as the Law Society feel that they can exercise their duty to look after and ensure the highest conduct standards of their members, in much the same way as we would expect regulation of members of other bodies in public life. I posit that political parties are an example of where the regulation of members is ceded to the party.

I do not want to go on at length, because many of these issues have been debated already and covered in the stage 1 report. However, there are many reasons why the broad solutions to the challenges that are faced in legal services regulation right now, which are alighted on in the bill, are preferable to the ones that are outlined in Tess White’s amendments.

I do not want to go over old ground, so I will leave my comments there. However, if we return to the issue at stage 3, it will be important to continue to recognise the things that I have outlined.

I make just a brief comment to thank the minister for her amendments in this group. She will be aware that this is one area that exercised many witnesses at stage 1, and I raised concerns about the need to strengthen and alter the provisions contained in these sections throughout the stage 1 process, as other colleagues did; I also did so in my meeting with the minister.

It is important that consumer protection is at the forefront of our minds in ensuring that unscrupulous individuals who seek to misrepresent themselves as lawyers or solicitors, or as holding the public office of advocate, are held to account, and that we ensure that there is a safeguard against their doing so. I believe that the Government’s amendments in the group will provide a solution to that and, indeed, to the concerns that we heard in evidence. I will support the amendments in the group.

My principal amendments in this group deal with the issue of registered foreign lawyers and the regulation of legal businesses therein. Much of the content and purpose of my amendments is similar to what Pam Gosal has outlined and relates to how we ensure that there is no detriment to businesses that are trying to operate in Scotland. For the benefit of the committee and the minister, I do not intend to repeat too much of that.

However, the issue of registered foreign lawyers more generally has been raised with me throughout the process. Although many come from qualifying jurisdictions within and beyond Europe, we must reflect jurisdictions in which relevant law firms provide legal services internationally and where many of their solicitors are in the UK, either in England and Wales or Northern Ireland. Evidently, there will be much cross-border work with Scotland, so we want to avoid a situation in which that would not be possible because of the definition of a registered foreign lawyer. It is important that we recognise that, and that safeguards are in place in relation to some of the issues that have been raised.

A foreign lawyer can be registered only if they are to be an owner of a practice where at least one other qualified lawyer is able to practise in Scotland. They cannot practise as sole practitioners or provide legal services that are reserved to those who are qualified in Scotland. I heard what the minister said about guidance. It would be useful to have those definitions in statute and to be clear about what we are trying to achieve.

As I said, Pam Gosal’s amendments are similar to mine but, on the basis of the advice that I have taken, I think that mine will move forward in the way that we are trying to advance. However, I appreciate that there is some duplication.

On the other amendments in the group, I recognise the minister’s offer to try to work together to look at how we might broaden the scope of regulation. I am happy to meet her on those issues ahead of stage 3 to see how we might further develop the bill, as we discussed earlier this morning.

More broadly, the minister has done important work through the amendments. I believe that the majority of the amendments in the group make good improvements to the bill, so I will support them. However, we need to be clear on the issue of registered foreign lawyers to ensure that there is no detriment, particularly on cross-border issues.

My amendments 543, 544 and 545 all seek to deal with the issue of waivers by leaving out the relevant sections of the bill. The powers contained within sections 21, 22 and 24 seek to provide for powers that already exist and are conferred under the 1980 act, with the ability to waive most of the existing practice rules. That is currently in force and is deemed to work well.

I have listened to what the minister has said and I am looking at the motivation behind the Government’s desire to make changes to the powers for special rules, but there is a lack of clarity in relation to concerns or issues that have been raised about waivers and how the system works at the moment.

Regulators that currently operate a waiver system go through numerous checks before a waiver is granted. Practice has been built up over many years of experience and is overseen by dedicated committees conducting due diligence on applications for waivers.

In understanding the concerns about the system that the Government is creating in the relevant sections, it is important to understand that waivers are requested and granted most often when that is of benefit to clients and there is a need to move quickly, which is the theme that has emerged from our desire that the bill help to speed things up for people who seek support and redress.

The bill might create a lengthy process that has to run through other bodies, including the Lord President and Scottish ministers, before a waiver can be granted. That might add to the system inefficiency and complexity that do not exist at present. I have not heard compelling arguments for introducing that system. Processes can add time and cost, and can be to the detriment of the consumer, who will bear the consequences.

There are further issues with the system that the Government envisages. In most cases, the system might not work if waivers are time limited, because a rule must either apply to situation and transaction, or it must not.

Additionally, waiver decisions often refer to an applicant’s personal information, which can be commercially confidential, such as information about operations or practice and what is going on in a business. It would therefore be difficult, at best, to publish waiver decisions, as is envisaged by the Government. At worst, having to redact them before they are published might consume significant time and resource. I come back to the argument about the length of time that it might take, when we are seeking a quicker process.

I am not convinced that there has been much evidence that the current system is broken or that it is being misused. Perhaps we should not seek to fix problems that do not exist. I hear what the minister has said and I hear her challenge to me, but I wonder whether, in summing up, she might say more about her position on special rules and consider what more we might do in that area.

That is what I was keen to explore next. The Cabinet Secretary for Social Justice spoke last week about moving from the discovery phase of the programme to day-to-day business. We know that policy innovations come along—for example, the announcement in the budget about the two-child limit and the delivery of a payment with regard to that. You are closing one programme and that has come along, so how do you intend to prepare for that? What do you think the challenges will be in trying to move to the business as usual space?

On building the system, we know that there has been a lot of debate and conversation in the past few weeks about the need for DWP to transfer data and the interaction between the two Governments. What is your role in that and what do you require to be prepared to build the system that will ultimately deliver whatever the policy intent is?