The next item of business is a debate on motion S6M-12248, in the name of Siobhian Brown, on the Regulation of Legal Services (Scotland) Bill at stage 1. I invite members who wish to speak in the debate to press their request-to-speak buttons now.
14:55
I welcome the opportunity to open the debate on the general principles of the Regulation of Legal Services (Scotland) Bill.
I thank the Equalities, Human Rights and Civil Justice Committee, the Delegated Powers and Law Reform Committee and the Finance and Public Administration Committee for their careful and considered scrutiny of the bill, and I thank all those who submitted views and gave evidence at stage 1. I very much welcome the lead committee’s stage 1 report, in which the majority of members agreed with the general principles of the bill.
The current legislative framework that underpins regulation of legal services and complaints handling is complex and dated. The bill presents a modern regulatory framework that is designed to promote competition and innovation, while improving the transparency and public accountability of legal regulation and the legal complaints system, and placing the public and consumer interests at its heart.
The bill sets out the regulatory objectives that must be complied with as legal regulators exercise their functions, including consideration of consumer principles, better-regulation principles and human rights principles. It is a highly technical bill that builds on existing legislation from 1980, 1990, 2007 and 2010.
The bill proposes a number of significant and positive changes to the legal services regulatory framework in Scotland, so I will take the opportunity to outline the many benefits that it will bring. It will streamline the legal complaints system, which many stakeholders have called for, thereby making the process faster and simpler for the consumers and the legal practitioners who find themselves involved in it. That includes introducing a new ability to make complaints against unregulated legal services providers, which will increase consumer protection.
The new regulatory framework will introduce greater transparency and accountability for our legal services regulators, in order to deliver a framework that maintains public trust and ensures that regulators are operating their regulatory functions independently of any other function.
I am sorry to interrupt, minister. Could you possibly move your microphone?
I apologise, Presiding Officer.
There will, for the first time, be a power to review the regulator’s performance and ensure their compliance with their statutory duties and the regulatory objectives. Regulators will be required to submit annual reports on their performance, as category 1 regulators.
To be up front in this afternoon’s debate, I declare an interest as a practising solicitor who is regulated by the Law Society of Scotland.
The bill will introduce new powers for Scottish ministers to intervene directly in regulation of legal services. Clearly, the minister thinks that the powers that are set out in section 19 are needed. Can she give me an example of any previous occasion on which the Government would have used those powers, had it had them?
I will come to that further on in my speech, if I may.
A regulator will also be required to create a register of all its members that is “free” and “accessible” to the public, thereby enabling consumers to access useful information about legal service providers. A total of 94 per cent of respondents to our consultation on the bill agreed that it was “important” that the regulatory framework should
“Enable access to justice including choice and diversity”.
The bill includes proposals to increase access to justice by removing restrictions on third sector organisations directly employing solicitors to support their clients in court proceedings. Scottish Women’s Aid welcomed that measure, advising that it
“will assist ... in securing dedicated and innovative provision of domestic-abuse competent legal services for women, children and young people experiencing domestic abuse.”
Through the bill, we are introducing regulation of legal businesses, which will provide greater powers of oversight for regulators and additional protections and consistency for consumers. In addition, the bill will ease ownership requirements for alternative business structures and allow innovation, such as community ownership of legal businesses, which will benefit the legal sector in attracting investment and in succession planning. Those measures are intended to support and promote sustainable legal services that benefit citizens. Some 93 per cent of respondents to our consultation supported those principles.
The bill will also protect members of the public against wrongful use of the title “lawyer” by people who seek to deceive consumers and imply that they are fully regulated, with the protection that regulation affords.
The bill will expand the remit of the statutory consumer panel and give it a role in undertaking research to provide good-quality evidence-based advice to the sector in order to ensure that decisions are shaped around the needs of the various consumers of legal services.
I acknowledge that the bill has attracted differing views from stakeholders, as did the consultation ahead of the bill. We have had to strike a balance with those differing views as we aim to modernise the regulatory system.
I understand the different and competing views that have been expressed about the Government’s proposals, but I will convey to the minister a word of advice from somebody who has been around the Parliament for a long time. Every time there is an attempt to reform regulation of the legal profession, it is vigorously resisted by the legal profession. The minister should retain her resolve in taking the steps that she is taking.
I thank John Swinney for his intervention.
Following the introduction of the bill, and having carefully considered the responses to the committee’s call for views, I acknowledge the concerns that have been raised about the role that was placed on the Scottish ministers, and I have committed to addressing those at stage 2. The provisions are only one part of the bill and are based on existing legislation. Nonetheless, I have sought to address those concerns, and my officials have been working closely and collaboratively with stakeholders and, in particular, the Lord President’s office and the Law Society of Scotland.
The bill was linked to the Esther Roberton report, but it appears that the Government has not accepted the recommendations of that report. It does not look as if the bill has united anybody, whether they be consumers or the legal profession. How can the Government progress to stage 2 when we have not even completed stage 1 and are not in a position to do so?
As I have said, there were polarised views going back to 2015 and from the Scottish Government’s consultation. Members will note from the briefings about stage 1 that have been sent to MSPs in the past few days that the Scottish Legal Complaints Commission, Citizens Advice Scotland, Consumer Scotland, the Competition and Markets Authority and the Law Society of Scotland all welcome stage 1 and urge the Parliament to agree to the general principles of the bill. I think that there will be collaborative agreement on aspects of the bill, moving forward.
Following the introduction of the bill, and having carefully considered the responses to the committee’s call for views—
I am sorry; I have read that paragraph.
The provisions are only one part of the bill and are based on existing legislation. Nonetheless, I have sought to address those concerns, and my officials have been working closely and collaboratively with stakeholders and, in particular, the Lord President’s office and the Law Society of Scotland.
The bill has received much support during stage 1, and I would like to note some of that support, for members in the chamber today. Consumer Scotland welcomed the fact that the bill will require legal regulators to exercise their regulatory functions in a manner that is compatible with consumer principles. I was also pleased to read the Law Society of Scotland’s comments to the Equalities, Human Rights and Civil Justice Committee: it has said that the bill contains many important reforms.
The committee also heard broad support for proposals in the bill that will reform the legal complaints system. The Scottish Public Services Ombudsman, Rosemary Agnew, said of measures in the bill that they enable
“the development of best practice.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 14 November 2023; c 23.]
As I said, in developing the bill, the Scottish Government sought to ensure that it strikes the right balance between the various interests of stakeholders. The committee’s stage 1 report recognised that and raised a number of important points. I have addressed those in my written response, and I will continue to update the committee after further consideration of the recommendations, ahead of stage 2.
The bill will provide a modern and forward-looking regulatory framework for Scotland that will best promote competition, innovation and public consumer interest in an efficient, effective and independent legal sector, while placing the consumer public interest at heart.
Will the minister take an intervention?
I think that the minister is bringing her remarks to a close.
I move,
That the Parliament agrees to the general principles of the Regulation of Legal Services (Scotland) Bill.
I call on Karen Adam to speak on behalf of the Equalities, Human Rights and Civil Justice Committee.
15:05
Before I begin, I thank Kaukab Stewart for her time as convener and congratulate her on her new role.
I thank all those who provided evidence to the committee. We are grateful for all the views that were expressed to us by representatives of consumer groups and the legal sector, including the senior judiciary. I also thank the clerks, the Scottish Parliament information centre and the wider team who supported us through stage 1 scrutiny of the bill and our report.
Reform of the regulation of the legal profession in Scotland has long been called for. Although it is not perfect, the bill seeks
“to introduce a modern set of regulatory objectives and professional principles, incorporating key aspects of the Better Regulation Principles and Consumer Principles.”
There was much discussion about the approach that is being taken to build on the existing regulatory framework rather than introducing an independent regulator, as was proposed in the Roberton report. As we note in our report, there is a sense that the framework that is proposed does not satisfy consumer groups or the legal profession. However, our role is to scrutinise the bill that is before us, so I will cover areas that are included in the bill.
Anyone who has been following our scrutiny of the bill closely will be aware that concern has been expressed by the Law Society, the Faculty of Advocates and the senior judiciary that some of the delegated powers that are proposed in the bill will have a significant detrimental impact on the independence of the judicial system.
The Delegated Powers and Law Reform Committee reported that it
“found it challenging to meaningfully report on a number of delegated powers in the bill”.
Its report reflected much of what we heard in evidence.
Although the minister indicated that the Scottish Government is engaging with the Lord President and others to lodge amendments at stage 2 to address the concerns, when it came to considering the general principles, it was unclear how different the bill might look subject to those amendments. On balance, however, and in light of the reassurance that the minister offered, a majority in the committee were content to agree the general principles.
We welcome the Scottish Government’s prompt response to our stage 1 report. We note that it contains a summary of the Government’s position on the DPLR Committee’s recommendations. However, should the Parliament agree to the general principles of the bill, we are likely to require an extended deadline at stage 2 to be confident that the amendments are sufficient to allay the concerns that have been expressed.
I am listening carefully to what has been said. The Law Society has also said that many of the powers that it had requested from the reforms have been left out. Does the committee know why they were left out in the initial drafting of the bill and whether they will be included at stage 2?
The bill is very technical and detailed. The committee did its job by scrutinising what was before us at the time, and it is not for us to say what will be presented at stage 2.
I turn to other parts of the bill. There was a view among witnesses that the current complaints system is “slow” and “overly complex”. The bill seeks to simplify the complaints process, but the creation of two categories of regulators with different regimes might mean that a lot of complexity will remain. We recognise that it will be for the Scottish Legal Complaints Commission to establish its own rules on how complaints are analysed to determine whether they relate to conduct issues, service issues or both. That highlights the importance of annual reporting to help understand whether the operational mechanisms are robust.
The bill proposes changing the name of the Scottish Legal Complaints Commission to “Scottish Legal Services Commission”. We welcome the fact that the Scottish Government has listened to the concerns that were expressed about how that might cause unnecessary confusion and it has indicated that it will amend the bill at stage 2 to retain the SLCC’s current name.
We heard broad support for proposals to update the rules on alternative business structures to increase the number of businesses and other bodies operating as such and to encourage innovation.
There were queries about how the ownership threshold figure of 10 per cent was reached, and the committee was not quite convinced by the rationale provided by the minister. The Government’s indication that it
“will bring forward amendments to remove the ownership requirement”
and that it
“will liaise with the Law Society to develop a greater risk based and proportionate system to the fitness test”
is therefore welcome.
We heard conflicting views on the proposal to change the route of appeal in relation to service complaints from the Court of Session to an internal review committee of the SLCC. The Law Society and the Faculty of Advocates considered that the right to appeal to court should be automatic, whereas the SLCC supported the introduction of an internal review committee. On balance, we were content that the proposed internal review committee process should provide a more proportionate approach and resolution that will benefit consumers and those who are the subject of a complaint.
The committee agreed that there is a perception that the term “lawyer” is interchangeable with the term “solicitor”. It is important that consumers are absolutely clear about what service they are being offered and by whom. We therefore support the proposal in the bill to regulate the term “lawyer”.
The introduction of entity regulation to regulate legal businesses as well as individual solicitors received broad support. The committee welcomes the potential benefits that that will bring for regulators and consumers as part of a modern regulatory framework. Concerns were raised by the Law Society about the special rule exemptions, and we welcome the fact that the Government is engaging with the Law Society to address those concerns.
This is a very technical bill, with a lot of detail to be considered. We acknowledge that parts and sections of the bill will need to be amended at stage 2. That could leave us with a different bill as we move on from stage 2 to stage 3, but many aspects of the bill are welcome and will help us to move towards a more modern and accessible regulatory framework.
Does the member recognise the commentary that part of the reason why we ended up where we are is that previous attempts to change things resulted in quite a muddle? Does she share my concern that, in effect, we could end up in the same position at the end of stage 3 as a multitude of amendments are lodged?
I am quite confident in the committee’s ability to work on that as it takes the bill through the different stages of the process.
Many aspects of the bill are welcome as they will help us to move towards a more modern and accessible regulatory framework. That is why the majority of the committee agreed to the general principles. Should the Parliament agree to the general principles, we will scrutinise the amendments fully at stage 2 and, if we consider it necessary, we might invite additional evidence before formally commencing stage 2 proceedings.
15:12
My party has long supported changes to the regulation of legal services in order to improve the system. We believe that improvements are necessary for victims and ordinary people who can be let down by a legal services system that is often complex, difficult to understand and outdated. We hope to see simple and effective legislative changes to tidy up the system, smooth the complaints process and modernise elements that need changing. Unfortunately, the bill that is before us is not the answer.
Before I address the issues that we have with the proposed legislation, I will outline where we can agree. We support many of the changes that the bill proposes. We agree with the new rules to increase transparency, we are behind updating the rules on business structures and we support the updating of legislation and professional principles. We believe that it is right to create an offence to prevent people calling themselves “lawyers” in order to deceive the public. On all those points, we are behind the principle of what the Government is trying to achieve, although we believe that some of the proposed changes could be improved with reasonable amendments.
However, we are disappointed by many of the elements of the bill. It does not provide many solutions. It leaves untreated too many problems that have been clearly identified. It fails to overhaul the system for the public.
The Government seems to have lost its way during the creation of the bill. It ended up rejecting the central recommendation of the Roberton review, which the Government commissioned: my colleague Russell Findlay will go into that in more detail in his contribution. That meant that many parts of the draft legislation were left until the very last minute, which provoked a lot of valid criticism from the judiciary and legal experts. The original stated aims for the bill have not been achieved, and the lack of progress with improvements to the complaints process represents a huge missed opportunity.
The bill is not ambitious enough at tackling the issues around the complaints process, which should have been one of its top priorities. It does not seem to make things much faster or easier for ordinary people, and it does not give much extra help or support to victims of crime and people who have been failed by the justice system.
There seem to be concerns across the Parliament, including in the Scottish National Party. Michelle Thomson recently asked in the chamber whether the bill would
“meet the original objectives of the Roberton review regarding consumer complaints.”
She went on to point out:
“There is a clear and fundamental conflict of interest in having consumer complaints processed by bodies that exist to protect the interests of their profession.”—[Official Report, 15 November 2023; c 15-16.]
Ministers have not yet done enough to address those concerns.
Moving on to other issues that we have with the bill, we share the concerns of the senators of the College of Justice, the Law Society of Scotland, the Faculty of Advocates and the International Bar Association about the proposed new powers for Scottish Government ministers. Those powers are ripe for political abuse, and they could be misused by politicians of any party in government. The prospect of any Government having a lot of power to interfere in the judicial process is troubling, and the bill looks like a power grab that could have worrying consequences for free and fair justice in Scotland. It goes too far and risks the independence of the judiciary, which must be protected.
In summary, the bill sought to strike a balance between retaining elements of the current system and overhauling it completely. The Government has not got that balance right. Instead of real progress, we have a bill that nobody really wants—it has barely been welcomed by anyone. In short, our objections to the bill are that it goes too far on powers for SNP ministers and not far enough on powers for the public. On powers for the SNP Government, it leaves too many grey areas where ministers could choose to intervene, and it opens the door for political abuse.
Would the member acknowledge that I have recognised the point about the ministerial powers and am engaging to remove them from the bill? I have written to the committee about that.
I recognise that, but we have not yet seen that, and we do not know whether the Government will actually do the right thing to get the bill to the place where it should be.
On the matter of powers to victims and the public, my party believes that the bill falls short of what was anticipated regarding the complaints process. It does not achieve the Government’s original ambitions, and it barely changes the system for the better. It does not deliver a faster and easier process for victims and the public.
Will Annie Wells take a brief intervention?
I am just coming to a conclusion—sorry.
For those reasons, we cannot get behind the bill at this stage. We hope that it can be improved by amendments at later stages, but the flaws are substantial and the missed opportunities are vast. It will take a lot to improve the bill.
15:18
I am pleased to open for Scottish Labour in the debate. We recognise the importance of the bill, the debate and the issues contained therein. Listening to the speeches so far, we have already started to see the emerging issues that have been debated in committee, which I think will be a feature as the bill continues its progress.
I wish to start from a position of some consensus. There are things in the bill that are to be welcomed and encouraged regarding the improvement and delivery of legal services. It is clear from all the evidence that was heard in committee that many people feel that the complaints system, as it currently exists, is in need of reform and is not fit for purpose, and that work needs to be done in that regard. It is clear that there is support for reforms on regulating legal businesses, providing more protections to safeguard consumers—and, indeed, the public—and ensuring that access to justice is easier for people in the full knowledge that there will be a right of recourse where there are issues.
As we have heard in the debate, there are clearly areas that need further development. Of course, everyone would want to engage fully in the process to ensure that, at stages 2 and 3, we look in great detail at where changes can be made to the bill to make it better.
In saying that, it is clear to me that there is work to be done to the bill at quite a fundamental level, specifically around the current drafting, which grants significant power to ministers, which could compromise the independence of the judiciary and the judicial system.
I am well aware of the stooshie around that, but I am sure that I recall Esther Roberton saying that it would be relatively easy for a role to be maintained for the Lord President and, therefore, for us to forgo that issue. Is that the member’s recollection from all the evidence sessions? In other words, the situation is not impossible with goodwill on all sides.
The committee heard a variety of evidence on either side of the argument. I acknowledge what the member is saying. What was clear to me was the significant concerns that were raised by not just the judiciary but by the Faculty of Advocates, the Law Society of Scotland and many other bodies in the legal profession. I have significant concern about the wider issue of ensuring that the independence of the judiciary is protected. We heard that quite clearly in our consideration of the evidence. That is part of the reason why I advocated that the committee should not take a position on stage 1 of the bill and should not recommend whether to support it. I do not think that we have had enough clarity on what amendments might be brought forward by the Government on that issue. I asked the Government, because I do not think that it is unheard of to bring forward amendments in draft form so that they can be considered in more detail.
The convener made an important point about the requirement for further scrutiny. If the Government is to lodge substantive amendments that will change the core of the bill in that regard, there will have to be a level of scrutiny of those, and people will have to give evidence and give their view on either side of the debate. The Government has given a commitment in writing to the committee, and the minister made that commitment when she gave evidence, but we could have been further along if we had been able to discuss the amendments in draft form before we got to the stage 1 debate.
I am really enjoying listening to the member’s contribution—he makes important points. Did the minister give the committee any indication as to when the draft amendments might be lodged, so that we can scrutinise them?
That point came up in the committee. The timescale was given that it would happen in the course of stage 2, but I do not think that we had any further clarity at that point, and I was concerned by that. The minister has said clearly that she will lodge the amendments and that she is in dialogue with the Lord President on a variety of issues. However, for me, the issue was the lack of certainty. I do not doubt the minister’s intent, but I would like to see the detail of those amendments.
Does the member acknowledge that I have been advised that it would be inappropriate to share the amendments ahead of stage 2? Does he agree that I have committed that, at stage 2, I will share the amendments with the committee?
I absolutely accept the minister’s commitment. It is not unheard of to have amendments shared ahead of stage 2. Indeed, in bill consultations in Parliament, draft sections have been shared ahead of the drafting of a bill. It is possible to do that, particularly in order to build the consensus that we would seek.
The Government has recognised the challenge of trying to bring people together on the issue and that the bill has not commanded a huge degree of enthusiasm from all sides. There are significant challenges from those who want stronger representation for consumers and from those who want to ensure that we protect the independence of the profession.
It remains my view, as it has been the view in committee, that we must build as much consensus as possible. If the bill passes stage 1 this afternoon—which I imagine that it will, given the support that the Government has for it—there will be opportunity through the stage 2 process, and we must ensure that the process is robust, allows amendments to be lodged and allows sufficient evidence on amendments to be acquired and given to the committee to ensure that we move forward with the best bill possible.
I am very conscious of the time, Presiding Officer, so, rather than take the opportunity to sum up, I will leave my remarks there. We look forward to the rest of the debate and to ensuring that these points are made and that assurance by the minister is given once again in the chamber so that it is on the record.
15:25
I thank the Equalities, Human Rights and Civil Justice Committee for its work. I welcome Karen Adam to her new role and congratulate her predecessor, Kaukab Stewart, on her promotion to ministerial office.
The committee’s stage 1 report is considered. Producing it has not been an easy task, particularly given the divisions in the committee. As a former member of the Justice Committee who was on that committee when the Roberton review was published, I met representatives of the legal profession and of consumer groups and Esther Roberton herself. It comes as no surprise that views remain polarised, as any decision or compromise was likely to prove unpopular on both sides.
I probably disagree with Meghan Gallacher on the idea that unity has not been achieved, because it has—in relation to the unpopularity of needless ministerial overreach, about which outrage has been inevitably and, I think, quite rightly expressed across the board. That issue, which I will come back to shortly, has come to dominate the consideration of a bill that has many other aspects to it.
It is worth reminding ourselves that reform is long overdue. The current framework for legal services complaints is outdated and confusing, and it does not meet the needs of either the public or the profession. For members of the public, the complexity makes it difficult for them to engage. It creates doubt and suspicion, and, as a result, there is often reluctance to submit a complaint. For practitioners, the delays affect confidence and can cause frustration, and there is even the potential for reputational risk as well as for an impact on other work that they might be undertaking. The case for reform is compelling and the bill is, therefore, desperately needed.
It is true to say that there are many welcome measures in the bill, which have been recognised across the board. A more streamlined, flexible and less legalistic process is undoubtedly in the interests of everybody concerned. The checks and balances to protect consumers and promote transparency are welcome. The more robust requirements around the use of the term “lawyer” have probably come as a surprise to many people, but they certainly need to be addressed. On those areas, greater clarity and more detail will be needed, but they are at least in the bill.
Liam Kerr was right to point to concerns that have been raised by the Law Society and others about the absence of certain provisions that were expected to be in the bill. That goes to the nub of the problem that we now see. In its rush to introduce the bill, the Government has found itself in a mess of its own making, with a bill that was not ready to be introduced.
The burden now falls largely on the committee at stage 2, although the risk will still be there at stage 3, as Michelle Thomson rightly said. It is not impossible to resolve, but it puts a lot of pressure on the committee and, subsequently, on the Parliament at stage 3. I do not hold the minister responsible for that. Clearly, she has inherited the bill, and some of the undertakings that she has made to address the concerns are welcome.
However, the ministerial overreach and the unprecedented powers to regulate legal services have set alarm bells ringing. It is not often—despite what Mr Swinney suggested earlier—that the Lord Justice Clerk intervenes in a debate to suggest that, in a sense, the rule of law is under attack.
I take very seriously the point that Mr McArthur makes and the comments that the Lord Justice Clerk put on the record—and, indeed, what the Lord President has said. I will say something about that if the Presiding Officer calls me to speak in the debate. However, there has to be a responsibility on the leaders of the judiciary and the legal system to accept that, if there is public dissatisfaction about the system over which they preside, they must act to resolve some of those questions into the bargain.
I would not disagree with Mr Swinney at all. Michelle Thomson said that there needs to be good will on all sides in reaching a compromise, but it is fairly clear to see that we are not where we should be at the end of the stage 1 process.
The lack of consultation on that specific proposal is all the more surprising given that the process has been on-going for the best part of a decade. The minister’s commitment that she will lodge amendments at stage 2 is very welcome. We have not yet seen the detail of those, as Paul O’Kane pointed out, but I think that there is precedent here. I well remember the now First Minister giving an undertaking to the Justice Committee to lodge amendments to the Hate Crime and Public Order (Scotland) Bill on intent, so such a commitment is not wholly unprecedented.
However, Parliament is now engaged in a high-wire act. As things stand, Scottish Liberal Democrats could not support the bill at stage 3—we would vote against it at stage 3—and we will find it difficult to support it at stage 1, although it will be agreed to at stage 1 this evening, as Paul O’Kane acknowledged. I commit to working with the minister and others to ensure that this much-needed bill provides proportionate and effective protections and improvements that support the public and those in the legal profession.
We move to the open debate. I advise members that, at this point, there is some time in hand for interventions, should members wish to take them.
15:31
On 2 May 1997, the day after my election as the member of the United Kingdom Parliament for North Tayside, my campaign office took my first call from a constituent, who sought an urgent meeting with me as his newly elected member of Parliament. My constituent had been working for some years with my predecessor, the Conservative MP Bill Walker, to resolve difficulties that he had experienced with the legal profession. My involvement with that case lasted for more than a decade. During that time, I observed my constituent assiduously and tenaciously pursue his concerns, with my active support, but in a way that consumed a huge part of his life.
That case, and others like it with which I have dealt, led me to take an active part in the proceedings on the Legal Profession and Legal Aid (Scotland) Bill, which this Parliament passed in December 2006. That bill was designed to improve the system for regulating the legal profession and to make it easier for complaints about poor conduct and service to be handled effectively. Eighteen years later, we find ourselves having to revisit those issues because significant concerns remain about the conduct of some elements of the legal profession and there is a lack of confidence in the current arrangements to adequately protect the consumer interest.
That is not where the historical comparisons end. During the passage of the Legal Profession and Legal Aid (Scotland) Act 2007, the legal profession pushed back against some of the reforms. That is exactly what Parliament faces in today’s consideration of the Regulation of Legal Services (Scotland) Bill. I believe that the Scottish Government is absolutely correct and absolutely justified to confront the issues in question and to propose reforms to the way in which the system operates.
Many strong words have been used to express opposition to the bill—we have heard some today. The most significant of the accusations is that the bill is a threat to the independence of the legal profession. I have no desire for the independence of the judiciary or the legal profession to be compromised in any way, and I believe that the minister has given assurances that such concerns will be adequately addressed in the later stages of the bill. However, concern about that point cannot be used as a reason for refusing to proceed with the reform agenda.
I note that, in the debate thus far, with the exception of Mr Swinney’s speech, all the airtime seems to have been given to complaints of the Law Society of Scotland, rather than to recognising the real voice of consumers. Does Mr Swinney agree?
I could not agree more with my colleague Michelle Thomson. In all of this, it is the voice of the consumer that I am concerned about. It was the voice of the consumer that I was concerned about in 2006, when I sought a number of reforms and changes that would have strengthened the process then. Unfortunately, I was unsuccessful on that occasion. On this occasion, I might be more successful in addressing the consumer interest issues that Michelle Thomson has correctly put to me.
It is absolutely right that consumer interests should be taken on board, but is there not a danger that, by not recognising the concerns of the legal profession, one might put undue weight on one side, which might mean that reaching the compromise position that Michelle Thomson referred to earlier could become more difficult as a result?
I am going to burst into violent agreement with Mr McArthur today, although it is not particularly new for Mr McArthur and me to agree on many things. There is a sensitive balance to be struck. However, the point that I am making in my speech—if I can cut to the chase—is that some of us here are not going to allow the consumer voice to be emasculated, as has happened in the past.
I am not going to raise specific cases of poor conduct: several have been well rehearsed in the public domain and we all know who they involve. What is clear is that the current arrangements have not adequately addressed those cases.
In their submission to the Scottish Government’s consultation, the senators of the College of Justice say:
“At present the legal profession is regulated by the Lord President. He is a regulator who is independent from government and parliament, and independent from those whom he regulates.”
I accept that that is the case, but what flows from that statement is that the Lord President must understand and address the fact that many of us deal with members of the public who are fundamentally dissatisfied with the effectiveness of the arrangements over which he presides.
The Government has introduced the bill to address the concerns of the consumers of legal services, who are our constituents and whom we represent. Those reforms are unpopular with some parts of the legal profession. The Government has indicated that it will lodge amendments after dialogue with the Lord President. Parliament is yet to see those amendments, although we have seen a letter from the minister that sets out the territory in which they will be set out.
That sums up the uncomfortable spot in which Parliament finds itself today. As the Government tries to reach agreement with the Lord President about how to reform the regulation of the legal profession while maintaining its independence, I encourage it to hold fast to the necessity of delivering measures that will effectively address the genuine and legitimate concerns that previous reforms have failed to address. Many of us will engage in the debate to ensure that we deliver reforms that do exactly that.
15:36
In my old life, members of the public would turn up at the front desk of my newspaper office and ask to speak to a journalist. I never knew what I would get: sometimes it would be a front-page story; more often than not, it would be a poor soul in need of help. Many had experienced problems at the hands of lawyers, just as John Swinney describes. They had folders stuffed with carefully indexed documents, were desperate for help and had nowhere left to turn.
Once a journalist writes about a particular subject, that generates much more of the same. I ended up investigating the antics of lawyers across Scotland. Some were utterly incompetent, some were completely criminal and others managed to be both useless and crooked. To the broken clients, the impact was often life changing and usually came at a devastating financial cost. To attempt to negotiate Scotland’s byzantine and bewildering complaints process was daunting. To help members to understand what I mean, in one hand I am holding up page 8 of Esther Roberton’s report “Fit for the Future”, which shows a diagram of the regulatory system, and in the other, I am holding a map of Tokyo subway stations, which, frankly, is easier to follow.
Simple injustices that should have resulted in a quick and easy fix became bogged down in a quagmire of endless process, tainted by bad faith. Lawyers who committed fraud were not always treated in the same way as everyday criminals. Instead of being put in the dock, they were subject to glacially slow and painfully weak regulatory action, controlled by their lawyer colleagues. Far too often, the crooked and useless got away with devastating people’s lives. Put simply, there was either no meaningful redress, or it was too little, too late. Lawyers were protected by a system that should have protected the public.
There is little that is more corrosive than suffering an injustice and it is even worse when that injustice is caused by the justice system. Victims felt hopeless and I felt helpless on their behalf. I became passionate about that regulatory scandal, as well as puzzled by it. How could it be allowed to destroy lives and effectively get away with it? Why would the vast majority of decent and diligent lawyers tolerate the protection of rotten practitioners?
Fundamental to that issue is the role played by the Law Society of Scotland. Its primary function is to represent the interests of its 13,000 solicitor members across Scotland. It is very good at that, but it has another role, which is to regulate the misconduct of its members. That is a glaring conflict of interest, no matter how it is spun.
Will the member take an intervention?
Is there time?
I can give a brief amount of time back.
I will be very brief. Having gone through all the evidence sessions, I was surprised that nobody on the committee had asked the Law Society how much revenue is embedded in its role as regulator and what percentage that represents of its overall revenue. Does Russell Findlay think that that might be significant?
That is an interesting point, which, not being a member of the committee, I did not have an opportunity to explore.
The Roberton review, which was, of course, commissioned by none other than the Deputy Presiding Officer, for the SNP Government—
Mr Findlay, please resume your seat for a wee second. That is, of course, a matter of fact, but I am in the chair in my role as the Presiding Officer. That is my role here today.
I do not say that as any form of criticism or anything of that nature. It is just a matter of fact that you were the minister at the time and responsible for ordering the review.
Esther Roberton found the system to be not fit for purpose. She made 40 recommendations, with the main one being to create a single regulator for all providers of legal services in Scotland, and that it should be independent of both Government and those whom it regulates. That was more than five years ago, but the SNP Government rejected her key recommendation. Somehow, it has managed to make the situation even worse by seeking to exert inappropriate ministerial power over legal regulation.
Will the member take an intervention?
If I have time.
Please be brief, minister.
Would the member acknowledge that ministers have had a role in legal regulation in Scotland since 1990? In 2007 and 2010, Parliament placed further functions on Scottish ministers in respect of legal services regulation. Having said that, I understand the concerns that have been raised and I will be lodging amendments. I simply note that there have been ministerial powers previously.
I appreciate that there have been historical ministerial powers, but what is being proposed goes well beyond that. I look forward to hearing what the suggested amendments will be.
Esther Roberton’s recent evidence to Parliament was absolutely scathing. She said:
“there is no compromise. Either you believe in independent regulation, as I do, or you do not.”
She went on to say that the SNP’s bill makes the complaints process
“much more complex”.—[Official Report, Equalities, Human Rights and Civil Justice Committee, 28 November 2023; c 20, 26.]
How could it get any more complex than what is shown in the diagram that I am holding? The bill has been a massive waste of time, a missed opportunity and, frankly, a disservice to the people of Scotland.
15:43
Today, I intend to speak on just one element of the bill—the process of complaints. I am probably the only member who has been through the entire process, which took more than six years after I submitted a complaint about a solicitor some years back. I have had dealings with all the bodies involved—the Scottish Legal Complaints Commission, the Law Society of Scotland and the Scottish Solicitors’ Discipline Tribunal.
I regard myself as pretty resilient, yet I found the process extraordinarily complex, opaque, time consuming, traumatic and lacking in justice. It takes no account of the impact on the complainant and is, frankly, biased in favour of the solicitor and the legal profession. When, at the outset, I asked about the process, little further detail was given; however, it was made clear in the response that I received, and from which I quote, that:
“We normally take the solicitor’s word at face value.”
I was told to gather evidence, but no advice was given on what was meant by evidence. I recruited a KC, who is now a judge, but his evidence on my behalf was given scant attention when compared with the solicitor about whom I had complained. The Law Society gave no consideration to the retraumatisation that I suffered as a result of its process, despite my making it aware of that, and my confidence in the committee to whom case decisions go for final sign-off was fatally compromised when a lay member told me:
“We don’t have time to read all the case work. We simply sign off on what the investigator says.”
I do not intend to give any more detail today but I thank the minister and Ash Regan, when she was in post, for meeting me, and I undertake to speak individually with any MSP, member of the Equalities, Human Rights and Civil Justice Committee and, indeed, the minister again. I extend that invitation to the Lord President, too, who is merely accountable, not responsible, for what goes on under his watch and who I feel sure would be shocked by the details that I can articulate.
I am interested in Michelle Thomson’s point about the accountability of the Lord President. I believe that there has to be some degree of accountability, but I am unclear about the mechanism in that respect. Can Michelle Thomson enlighten me as to what that is in the current environment?
I must admit that I am not entirely sure. We understand the meaning of the term “accountability” and how it is differentiated from “responsibility”, but I would ask the Lord President about the active interest that he takes in the multitude of situations that we as MSPs have all come across as well as the situation that I have described.
This is not really about process; it is about power and the lack of independence. Undue power is given to the legal profession, while far too little is given to our fellow citizens who have genuine complaints. Like most people, I am not trained in the process of weighing evidence or in being able to assess the bar for the “beyond reasonable doubt” standard required for the SSDT or the “balance of probabilities” standard required for the SLCC. The lawyer about whom I made my complaints held many of the cards, not least of which was the fact that this was not the first time that he had been through the process. Meanwhile, the lawyers who assessed my complaints held the rest.
I have thought a great deal about the original situation. The only way in which I could have protected myself from the original solicitor would have been to record every meeting, ask for everything in writing and seek independent verification of any claim that they had made or advice that they had proffered. The only way in which I could have protected myself from the complaints process would have been not to bother, and to go straight to legal action. However, as somebody who holds her society dear, I thought that I would do the right thing—and I thought that the legal profession would do the right thing, too. What I actually experienced is hardly a ringing endorsement.
The experience led me to recognise the need for independent regulation. If it is good enough for multiple other professions, such as architects, dentists, doctors and teachers, why is it not good enough for the legal profession? Other countries recognise its benefits—why not Scotland? Why should our consumers be expected to settle for second best?
Despite recognising the minister’s efforts, which we have discussed, I have to say that I believe the proposed legislation to be inadequate. I agree with the comments of Professor Stephen Mayson, who noted:
“The Government has boxed itself into a corner. It has said that we cannot have independent regulation and can no longer sustain self-regulation. We have to fudge something in whatever the mix is and I am afraid that the fudge will not work.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 7 November; c 17.]
Given that the bill’s principles do not place our citizens at the heart of the complaints process, I urge the minister to be bold, but today, for the reasons that I have set out, I shall be abstaining.
15:48
I declare that I am a former member of the Law Society of Scotland and the Law Society of England and Wales and that I have worked as a solicitor in both jurisdictions. However, I agree with much that has been said.
I believe that there is widespread consensus in society that the reform of legal services is required and that it is often the case that many who use such services or who try to get legal help have concerns about the quality of the service that they receive, the transparency of the feeing process and the inability to complain in any meaningful way. Although most people who use legal services will no doubt be very pleased with what they receive and will, on many occasions, feel that solicitors and indeed advocates offer excellent services at a very reasonable cost—on occasion, pro bono—we have to focus on what happens when things go wrong.
I have sympathy with some of the bill’s general principles. It is unfortunate that there are still ministerial powers on the face of the bill as we have today’s discussion, as that has distorted the nature of the debate.
In its briefing for MSPs, Citizens Advice Scotland, which provides advice on legal processes to thousands of people every year, gives details of the YouGov public opinion poll that it commissioned in late 2022 and in which it found that two thirds of those who responded would prefer an independent regulator to oversee the legal profession, compared with one in eight who would support the status quo. Of the respondents to that survey, 74 per cent felt that an independent regulator would increase public confidence. As I have said, there is widespread support for some of the bill’s general principles, but I hope that, once amendments come forward, we will be able to focus on some of those challenges.
As outlined in the committee’s report, there are strongly held views on whether the decision to adopt the principal recommendations of the review for independent regulation was correct. I would have hoped that that would have been the focus today. It is also significant that the committee report noted the broad and significant opposition to the initial proposals to give powers to Scottish ministers in certain parts of the bill. The bill is potentially a great opportunity to strengthen consumer rights, but unfortunately, as it stands, I do not believe that that can be the focus.
The current complaints process clearly needs urgent and drastic reform, and the bill’s provisions simply do not go far enough. Scottish Labour shares the concerns expressed by the Law Society of Scotland and others about the new powers in the bill to intervene directly in the regulation of legal services. We agree with Esther Roberton, who led the independent review into the reform of regulation of legal services in Scotland, that Government involvement is not in the interests of the Government itself, the legal profession or, most important, the public. We believe that the independence of the legal profession from the state lies at the heart of the rule of law and, indeed, of public trust.
I am very interested in the fact that the minister will be lodging amendments. I am not a member of the committee that scrutinised the bill, so I am not clear how substantive those amendments will be. The sections that seem to present a great deal of concern—that is, sections 19 and 20, schedule 2, section 41 and section 49—do give extensive powers to ministers. I hope that the Scottish Government will be able to give a clearer position as to whether it will be proceeding with those powers when we get to the bill’s next stages.
15:53
As others have said, reform in this area is overdue. Proposals to change the current regulation of legal services began nearly a decade ago in 2015, when the Law Society of Scotland’s case for change paper was submitted.
What followed was an independent review of the regulation of legal services in Scotland, which made 40 recommendations that sought to modernise the current regulatory framework in order to ensure that a proportionate approach was taken that supported growth and competitive provision in the legal services sector while placing consumer interests at its heart. Following that, a public consultation on the recommendations was launched, and I thank all of those who engaged with and responded to it. Those invaluable contributions shaped the early stages of the bill, which seeks to implement a number of the recommendations from the independent review.
As a committee member, I thank all stakeholders who gave evidence to the committee at stage 1. Consumer Scotland, in particular, was right to point out that those in need of legal services often use them while dealing with challenging and potentially traumatic experiences. Indeed, we have heard a wee bit about that in the chamber today, and understandably it can cause stress and confusion for those engaging with the system. That stress and confusion can be compounded if there is any difficulty in understanding legal terms or jargon or laws themselves, all of which can be extremely daunting for anyone outwith the sector, never mind those who have experienced grim personal circumstances.
Consumer Scotland also noted:
“48% of adults in Scotland ... had experienced”
events
“in the last two years that indicated they may have needed legal support.”
That statistic alone underlines the need for a modernised and accessible regulatory framework for legal services in Scotland.
Although there are further discussions to come, I note that Citizens Advice Scotland articulated the current problems well when it acknowledged that the current system is
“too rigid and ... unsuitable for supporting and engendering a thriving and dynamic legal services landscape”
as well as being
“too complex and difficult”
for the public to understand. I would note, though, that evidence from stakeholders such as the senators of the College of Justice, the Faculty of Advocates and the Law Society of Scotland suggested that the current model of regulation was already effective and independent.
In our committee sessions, we stressed the importance of resolving concerns as efficiently as possible, as any delays could risk undermining the independence and efficacy of Scotland’s legal system. I therefore welcome the Scottish Government’s assurance that, although it is perhaps a bit of an unorthodox step, it will lodge at stage 2 amendments to address such issues and ensure that the reforms will not be delayed. Given the large body of evidence that we heard, and the Scottish Government’s assurances and commitment to addressing any concerns fairly, as well as the undeniable need for reform, I believe that the bill’s broad provisions have strong benefits, which the committee has scrutinised.
Although the majority of committee members voted to support the general principles as they relate to the improvements that would be made to legal regulation in Scotland, that was not, as we have heard, achieved without great difficulty. There were polarised views on the proposal for an independent regulator, with those against it expressing strong views. Moreover, as other members have mentioned, there were concerns about the initial proposals on ministerial powers and the fact that the minister had committed to coming back with amendments at stage 2, which is an unusual approach. We took all of that into account in our committee report.
There was also a fear that the bill might try to strike a balance that, in the end, would please no one. Indeed, it was a common theme in our committee evidence sessions, and perhaps in some contributions to the debate, too. For example, Annie Wells said that the proposals went too far, while other members, including Katy Clark, said that they did not go far enough. Perhaps that will give members who were not on the committee a wee indication of what we regularly faced in our evidence sessions, where the bill’s proposals appeared not to please anyone.
Will Fulton MacGregor take an intervention on that point?
The member is about to conclude.
I urge members to agree the bill’s general principles. There is much work to do to get the bill to where we want it to be at stage 2, and the minister has committed to doing that. I hope that, today, we will agree to those principles, as that will allow us to move forward.
15:58
The bill has been a long time coming. For more than a decade, consumer groups and members of the legal profession, in various forms, have called for reviews, updates or changes to the regulation of legal services, the associated complaints systems and the mechanisms for ensuring that consumers—our citizens—get the services and support that they need. I will therefore be pleased to support the general principles of the bill. That is not to say that I am content with everything in it, as it stands—far from it—but the bill matters for the citizens of today.
I record my sincere thanks to everyone who has contributed to the committee’s work on this important bill over the past six months. The detailed evidence that we received, and the care and commitment that witnesses have shown towards some pretty technical aspects, are very much appreciated.
I am grateful, too, to Esther Roberton for laying the groundwork for the bill, and to my committee colleagues, our clerks and the Scottish Parliament information centre team for guiding us through stage 1.
Some aspects of the bill are very much needed if we are to make things better and fairer for the citizens whom we represent. Indeed, Consumer Scotland told the committee that reform of the current system is necessary and long overdue.
As Fulton MacGregor outlined, when people engage with legal services, they are often going through stressful or difficult situations. They might be vulnerable, experiencing personal tragedy or trauma, or have specific issues relating to illness or disability that require care and compassion. Their having to deal with technical legal language and formal structures can exacerbate their stresses and anxieties. It is only right that those citizens have confidence in the legal system that they need at times of stress and difficulty.
Strong checks and balances clearly need to be in place, and the system must be transparent, accountable, easy to understand and the subject of appropriate oversight. I look forward to discussions during forthcoming stages to ensure that the legislation gets all that right.
I warmly welcome the proposal that regulatory bodies must take into account consumer principles. We know that principles linked to public interest, access to justice, quality and innovation are understood and widely accepted. The need for effective communication across the system is also clear, but the explicit inclusion of the principles of access, choice, equality, safety, representation, fairness, information and redress will, I hope, deliver tangible benefits and improvements in consumer outcomes. We must ensure that there is appropriate monitoring and evaluation to provide evidence of those improvements.
I welcome the widening of the consumer panel’s remit. We all share the responsibility for ensuring that the panel has the resources that it needs to do its job well. Providing clarity for consumers on what they will get when they engage a lawyer is also very welcome.
Others have highlighted the complexity of the current complaints system. I do not have time to go into that just now, but we must work on further simplification, in the coming stages.
In the chamber this afternoon and elsewhere, there has been much discussion of ministerial powers and concerns about the genuine independence of the judiciary. I look forward to working with colleagues in subsequent stages on the amendments that the minister has promised, and I remain—as committee colleagues will know—keen to ensure that we achieve effective and appropriate oversight of the overseer.
I am heartened by Marsha Scott’s recognition that the bill is
“an opportunity ... to pivot the system away from ... the imbalances of power and the privilege ... inimical to human rights for women and children”.—[Official Report, Equalities, Human Rights and Civil Justice Committee, 3 October 2023; c 21.]
There is much for us to do at stage 2, including addressing some things that are not currently included in the bill. I look forward to working with our new committee convener and others on that important work over the coming months.
16:02
I am speaking today not as the convener of the Delegated Powers and Law Reform Committee, but as a back-bench MSP. I am delighted to be speaking in the debate and I thank colleagues from the Equalities, Human Rights and Civil Justice Committee for their helpful report.
The Scottish Women’s Aid briefing that we all received was tremendously helpful. I will read out two of the bullet points that it highlighted. The first is:
“The current process fails to recognise the barriers vulnerable people face when engaging with systems where there is a power imbalance. This is very specifically in relation to women experiencing domestic abuse who are reluctant to complain in the first instance.”
The second is:
“The professional bodies’ role in complaint handling carried out in tandem with their role as representative bodies for their respective professions has not instilled confidence in consumers around the independence of the process.”
Those two points, particularly the second one, are related to the backdrop to my consideration of the bill, which is the situation with McClure Solicitors and its collapse in 2021. Members will know that I have highlighted the issue in the chamber before. My comments today will be focused, because I have a members’ business debate on the issue next Tuesday, when I will say more.
Ultimately, I have never before had a single issue that has taken up so much of my time and the time of my staff. More than 300 constituents have been in touch with me, and other people from across Scotland and England have been in touch with my office. My staff have referred them to their MSP or MP.
Two public meetings that I have hosted had more than 260 people in attendance. I record my thanks to the Scottish Legal Complaints Commission for supporting both the events and for having direct engagement with my constituents.
Under the current legal framework, the SLCC is limited in what it can do, as was clear from answers that Neil Stevenson, the chief executive officer of the SLCC, provided. However, the bill is an opportunity to improve the process.
Currently, the SLCC can be only responsive—not proactive. It is also limited in respect of taking on group issues. I appreciate that that would always be hugely complicated, because every case is different. However, there will undoubtedly be some common issues that would, if taken as group complaints, allow the SLCC to deal with more complaints in a shorter timeframe.
The SLCC’s briefing highlights why the bill is needed and why it is hugely important. The briefing says that
“The proposals in the Bill to reform the complaints system seek to reduce complexity and prescription and to increase flexibility. This will help to drive efficiency and proportionality as far as possible within the current model.”
The briefing goes on to say that the SLCC believes
“that this Bill will create a complaints system closer to the public, the profession and the Parliament’s expectations of an appropriate system for delivering consumer redress and administrative justice.”
I welcome those comments and I hope that they will be considered by colleagues from across the chamber.
However, if someone needs to make a complaint to the SLCC, that indicates to me that there might have been a problem with the legal process beforehand—which Mr Swinney and Michelle Thomson touched on—so it is right to consider the overarching question of legal regulation of the whole system.
I know from my constituents that there is a great deal of frustration and anger with the Law Society of Scotland because of the events that I articulated earlier. The question of industry regulation certainly has not convinced many people, irrespective of what happens with the bill. I know that there will be considerable interest in the bill, and that proposed changes and amendments will be lodged at stage 2.
However, I welcome the Law Society of Scotland’s description of the bill as
“an important opportunity to introduce major and long overdue regulatory changes in the public interest, for the benefit of consumers and those working within the sector.”
The minister is aware that I have called for an inquiry into what happened at McClure Solicitors. I do not believe that an inquiry now would be of any assistance at all, but would, in fact, only delay and hinder people from getting legal paperwork amended. In the two public meetings that I hosted and discussions that I have had with constituents and lawyers, a unanimous view has been taken of my position.
The reason why a future inquiry will be important is clear. I am under no illusion: whatever legislation we pass—I hope—after the bill’s passage through Parliament, an independent inquiry would, no doubt, provide suggestions for further regulatory changes.
I hope that we can all agree across the chamber that we want the legal profession and the complaints process to be of the highest quality, with consumer protection at their heart. The bill makes progress on that journey, but I am under no illusion that it will be the end of the journey.
I will support the bill at stage 1, and I certainly look forward to it making its way through the parliamentary process.
16:07
I am pleased to speak in the debate.
Several decades ago, I was a member of the Law Society of Scotland and, in fact, my late father was a fiscal for the society’s disciplinary tribunal for many years. It is interesting to hear the various comments that have been made. I also thank all the organisations that have provided submissions over the past number of days.
I will focus my brief remarks on my reflections as a member of the Delegated Powers and Law Reform Committee. I am grateful for the evidence that the minister gave us, and for that of others who gave written and oral evidence. There is no doubt that we all agree that there needs to be change from what is happening at the moment.
It is not clear, however, whether the change that we will be making will make things any better. One of the criticisms—my remark is not aimed at the minister, because this was before she was appointed—is that there was, perhaps, a lack of consultation of some key stakeholders before the bill was published and brought to Parliament. The committee heard in evidence that some of the pitfalls that we are facing could have been avoided if the Government had engaged more constructively with the Law Society of Scotland, the Faculty of Advocates and the judiciary.
We have ended up in an interesting place. Senior judges, advocates, lawyers and consumer groups are all critical of the bill. It is interesting that, in her evidence to the Delegated Powers and Law Reform Committee, Esther Roberton felt very let down that the Government had not listened about her work. She felt that that was a missed opportunity.
With regard to the more controversial areas, the minister will be aware that many of those will be covered in the delegated powers that will come after the bill is passed, if it is passed. I am grateful that the minister wrote on three occasions to the lead committee to at least acknowledge that there were problems, and to say that she and the Government would address them. However, we still have not seen amendments, and we do not know the detail of how they will work.
I welcome Karen Adam to her new role. I am interested in her comment that the lead committee might take evidence on some amendments before it decides to vote on them. My concern is that the Delegated Powers and Law Reform Committee will not have the opportunity to take evidence on amendments that the minister lodges. Perhaps she, along with others who are above my pay grade, can give some thought to whether the DPLR Committee should have an opportunity to take evidence once amendments have been lodged, so that some of the concerns that the whole committee holds could be addressed before the lead committee comes to vote on the amendments.
I hear what Mr Swinney and others have said with regard to the judiciary, but I think that it is important that the Lord President and the whole judiciary are independent. Yes—we have to work together, and I absolutely accept what Mr Swinney and others have said, but it is nonetheless important that, whatever we hear today, we future proof the bill not for the current Government but for future Governments, so that no Government can overreach into the judiciary.
Will the member give way?
Yes.
Be brief, Mr Swinney.
I am grateful, Presiding Officer.
I very much associate myself with how Mr Balfour has put that particular point. We must maintain the independence of the legal profession, but the consumer interest must also be strengthened. That is an objective that Mr Balfour and I perhaps share at this point in the debate.
Absolutely—for once, I agree with Mr Swinney. My slight concern, however, is that we are not doing either: we might reach in and take power from the judiciary while not strengthening consumer rights. That is why we need to see what amendments the Government will lodge at stage 2, and why the Delegated Powers and Law Reform Committee should—I appreciate that this does not happen often—take more evidence after the amendments have been lodged.
I would have preferred the Government to have stopped the bill process, then gone away and developed a bill that would have had far more support—not only from members, but from people outside Parliament. That is not the case, however, so if the motion on the bill is passed today, I hope that scrutiny by the lead committee and other committees will continue so that we can get this area of law right for every consumer in Scotland.
Before we move to closing speeches, I advise members that we have, in fact, used up all the time in hand. I ask members who are making closing speeches to keep to their agreed allocated speaking times. Any interventions should, therefore, be absorbed.
With that, I call Paul O’Kane to speak for up to five minutes.
16:13
The debate has been constructive in terms of the interactions with and interventions from members, which have been helpful. In concluding, I will reflect on three points: why we are where we are, how we got here and where we are going next.
We have heard eloquently from a number of members about the importance of access to justice, to a complaints system that works and to a robust system when someone has been wronged at the hands of a solicitor or lawyer. We heard eloquently from John Swinney and Stuart McMillan about what is going on with McClure’s, which is known to many of us.
We also heard from many other members, including Russell Findlay, about the challenges that people face when they are in such a situation, which may have had a huge impact on their life. They may have been given bad or wrong advice, and they feel that they have no recourse in the process, or that the process is too slow or does not act to hear all that they have to say and what they feel.
Michelle Thomson’s explanation of some of that, and of her own experience, was helpful. In committee, I was keen that the contributions that she made in parliamentary questions were recorded in the committee’s report, because it is important that we capture that aspect.
Many members have reflected on how we have ended up here, with the current bill. Liam McArthur outlined that the minister has inherited the bill, in many ways, and that it has come out of different processes of consulting on the principle of reform that have never managed to get to the point at which there has been a wider consensus.
Many concerns have been raised about how we can balance the need for an independent judiciary with the need for better reform of the legal services sector. Katy Clark laid out some of the thinking among Labour members about how we can look at the bill that is before us, acknowledge how we got here, and find a way, in amending the bill, to make it better.
I very much welcome the comment that Mr O’Kane has just made. Notwithstanding how people vote at 5 o’clock, there is a willingness to engage. As he has acknowledged, the debate has helpfully aired where members of the Scottish Parliament wish to get to. Nobody wants to undermine the independence of the judiciary and the legal system, but we need to strengthen the position of the consumer interest. I look forward to engaging with Mr O’Kane on that point.
Given that we do not have much time in hand, Mr Swinney has very helpfully moved me to my final point, which is about where we go next and how we can create the consensus that we all want to see. For Labour members, it is about the amendments in respect of the ministerial powers, and ensuring that we see the details of those amendments; that we, as a committee, have time to scrutinise them; and that we can scrutinise them in the chamber. It is also about looking at all the other aspects that have been raised in the debate and where further amendments might be made to support the many good contributions from organisations such as Citizens Advice Scotland and Women’s Aid and those who have a view in this space. The Law Society of Scotland, of course, also wishes to see other amendments to the bill.
Although we will abstain on the general principles of the bill today, that is with the view of trying to make the bill better at stage 2, so that we can all support it by stage 3. I would be keen to hear an undertaking from the Government in that regard when it comes to its summation.
16:17
Every party in the chamber believes that we need to reform our legal services. Access to those services must be simplified but, for the bill to be good law, we need to ensure that all stakeholders are on board with the proposed changes.
Rape Crisis Scotland has condemned the current legal complaints system, as have members in the chamber today. To provide reassurance, I say that there are no disagreements on that position.
As a serving member of the Equalities, Human Rights and Civil Justice Committee, I feel that we have been through the mill with the bill. During the scrutiny process, we had an unprecedented intervention from two of the most senior legal figures in Scotland. Then there was the backlash from those in the legal profession who are still concerned about the Scottish Government’s handling of the bill, especially in relation to the additional powers that could, as the bill stands, be given to Scottish Government ministers, which could threaten the independence of our legal sector.
I want to take Meghan Gallacher back to a comment that she made a little while ago, on our needing to get to a position where everybody agrees on this. Does she accept—this is, in a sense, a hypothetical question—that it is sometimes difficult to get all stakeholders to agree on something? Does she see it as a necessity that everybody has to agree on everything? Alternatively, do we need to apply some of the judgments that Mr Findlay and Mr Balfour have put on the record today about addressing the consumer interest while taking account of legitimate issues on which we might not get universal agreement?
The bill had so much potential to bring everybody together, but what we heard—certainly what I heard—in the evidence sessions was that it has not brought everybody together. Everyone seems to see something wrong with the bill, which is why I have made the points that I have made. There was an opportunity but, in my view, it has, unfortunately, been a huge missed opportunity for the Scottish Government.
Will the member take an intervention?
I will make some more progress, because I know that time is tight.
In its current draft, the bill repeatedly seeks to draw the Lord President into administrative collaboration with Scottish ministers. The fact that that was drafted in the bill to begin with shows that, somewhere, someone misunderstands the concept of the separation of powers and the respective roles in the spheres of the Executive and the judiciary.
We heard from Esther Roberton, who conducted the review on which the bill was structured, only to be told that her central recommendation of the introduction of a single regulator had not been included in the bill. What was the point of the review and what was all that hard work for? Esther Roberton’s review was essential to the reform of legal services in Scotland.
The committee was informed that the Scottish Government would lodge amendments at stage 2, but the committee has not seen those amendments and we do not yet have an exact timescale for them. As far as I am aware—unless the minister can update us otherwise today—the Lord President has not seen those amendments in full either. We are in the dark about what the bill will look like moving forward, and we will not know more until we hit stage 2.
It has been said many times today that the minister has inherited the bill, but the bill has not united consumers or the legal profession—it has managed to disappoint both sides. That point was raised by Jeremy Balfour during his speech. I do not buy the argument that it would be inappropriate for amendments to be shared. Exceptions could be made, which could have provided reassurance to those who are scrutinising the bill and to those whom the bill will directly impact. It is fair to say that the bill has created division instead of bringing all stakeholders together to create good, solid legislation.
In her opening speech, the minister moved that the Parliament accepts the principles of the bill at stage 1, but my question to her is: how can she ask the Parliament to support a bill when we do not know how far it will be amended? We do not know whether the amendments will address all the issues that were raised by stakeholders during our evidence sessions. I raised that issue time and again during the committee sessions. I asked questions about having to rescrutinise the bill and going over previous work because the Government has not managed to get its act together when introducing the bill at stage 1.
I congratulate Karen Adam on her appointment as convener, but I am less than enthused that we will have to revisit some of the scrutiny and evidence sessions. As Jeremy Balfour pointed out, it does not look as though the Delegated Powers and Law Reform Committee will be afforded the same opportunities to scrutinise amendments that we on the Equalities, Human Rights and Civil Justice Committee will have. That does not make for good overall scrutiny.
I am not prepared to vote for a bill that stands as open to political abuse—
Will the member take an intervention?
Ms Gallacher must begin to conclude.
Apologies—I am beginning to conclude.
There is a lot that I would like to say, but time is moving on. The complaints system is costly, complex, outdated and needs to be simplified. However, that does not mean that we need to vote for a bill on a whim, in the hope that the Scottish Government gets its act together and gets it right at stage 2. That will not help consumers who need a simplified process and protection when making a complaint, and it will not bring the legal sector on board to make sure that the legislation works and works well.
16:23
I will draw the debate to a close by thanking all the members for their views today. Of course, I will consider carefully everything that has been said in the debate.
Once again, I thank the committee that has considered the bill, and I thank all those who provided and gave evidence at stage 1 for their careful consideration and views. It is fair to say today that there has been a wide-ranging debate, and the different views and opinions among members have been very well expressed.
Esther Roberton said in her report:
“I believe that professional bodies providing both regulatory and representative functions can lead to the perception that the two roles are in conflict. It is this perception that risks compromising public trust.”
Legal regulators view that there is no genuinely true conflict of interest, nor any risk of the perception of one, once one properly understands the regulatory process. However, perception has a powerful influence over opinion, and the approach that is outlined in the bill will do much to deliver the priorities of maintaining the independence of the legal profession and strengthening the regulatory duty to work in the public interest. I want to ensure that the bill strikes the right balance between the various interests.
It will be to everyone’s benefit if greater trust can be developed in the integrity of the regulatory framework for those providing legal services. The bill seeks to address concerns from consumer groups that legal regulation does not offer sufficient accountability to protect the public and consumer interests by improving the transparency and accountability of legal services regulations in Scotland.
I have a few things to address in reflection of today’s debate. A few members have reflected on how we got here today. This issue has a history in Parliament of nearly 10 years. Many members have not been here for the entirety of that time and are quite new to the Parliament, so it is important to give a bit of context and history.
Back in 2015, there were calls for reform from stakeholders. The Law Society of Scotland set out reform proposals, as did the Scottish Legal Complaints Commission. The Scottish Government then established an independent review to develop views on potential reforms, which was carried out by an independent panel led by Esther Roberton. “Fit for the Future: Report of the Independent Review of Legal Services Regulation in Scotland” was published in October 2018 and made 40 recommendations. Its primary recommendation was that
“There should be a single independent regulator for all providers of legal services in Scotland”.
In June 2019, the Scottish Government published its response to the Roberton report. The Government’s analysis established that, although many of the report’s recommendations were widely supported, views from the legal and consumer landscape on the primary recommendation that there should be an independent regulator were very polarised.
As a result, the Scottish Government made a commitment to hold a public consultation based on the Roberton report’s recommendations, with the intention of seeking to build consensus on the way forward for the much-needed reform. The Scottish Government worked collaboratively with stakeholders from the legal and consumer perspectives to design the consultation. In seeking to build agreement around the proposals for reform, the consultation contained two alternative, viable models of regulation in addition to the Roberton report’s primary recommendation.
The analysis of the consultation showed that views were evenly split between support for and opposition to an independent regulator. However, in many other areas there was broad agreement. The analysis highlighted that all respondents, regardless of affiliation, shared a common aspiration for any future model to be transparent, open to public scrutiny and efficient to ensure that justice remains accessible to all. The bill will allow a proportionate approach that seeks to balance and deliver the key priorities of the stakeholders and the much-needed reform.
I appreciate Jeremy Balfour’s comments about the engagement prior to the bill being published. I assure him that I am keen to engage with all members and stakeholders. I am happy to look into the possibility of the DPLR Committee being involved in an evidence session when the stage 2 amendments are lodged.
Will the minister take an intervention?
I have a lot to get through, so I will come back to the member if I have time.
Regarding the complexity of the Scottish legal complaints system, it is important that we highlight what the Scottish Legal Complaints Commission has said in the briefing that it sent to all members:
“the Bill is a very welcome and significant step forward in a number of areas, and we now want to see it delivered and implemented to realise those benefits for consumers and lawyers alike”.
I turn to Katy Clark’s comments regarding the sections where ministerial powers will be removed from the bill—they are sections 5, 8, 20, 29, 41, 35 and 49. In recognition of the comments from the senior judiciary, we intend to lodge amendments that will transfer the powers in sections 19 and 20 to the Lord President and to continue to explore with the office of the Lord President what further adjustments will be made.
Stuart McMillan has done a lot of work on the topic of McClure Solicitors. I am aware of the issues that a number of families are facing as a result of that firm going into administration. Although I cannot comment on individual cases, the Scottish Government has taken proactive steps to strengthen the legislation in respect of legal regulation, which will help to mitigate the effect of such situations in the future. If a client is dissatisfied with the service or conduct of a Scottish solicitor, they have the right to complain through the Scottish Legal Complaints Commission.
I return to a few points that Liam Kerr raised during the debate regarding the Law Society, I think in an intervention on Karen Adam regarding some of the powers that it thought had been left out of the bill. I can confirm that we will be introducing amendments at stage 2 that will make many of the changes that the Law Society has been seeking, especially regarding the conduct complaint process. We are working very closely with the Law Society on that.
Liam Kerr was also asking for examples of how the powers in sections 19 and 20 of the bill might have been used previously. The current lack of transparency in relation to legal services regulation makes it difficult to say when such powers may have been used previously. It may be helpful to reflect on the comments that were made to the committee by Tracey Reilly of Consumer Scotland. She highlighted that, if the powers were removed entirely, primary legislation would be the only recourse if the system was not delivering the regulatory objectives.
For my part, I will continue to engage with stakeholders and members to address any concerns that are raised with me as we go through the parliamentary process. I am committed to working constructively with the committee and members ahead of stage 2, and my door is always open to anyone who would like to discuss the bill.
Will the minister take an intervention?
The minister must conclude.
I know that some of the provisions in the bill have led to differing views, including within the committee, and it is that balance that the Parliament needs to consider if we are to deliver the significant improvements to the regulation of legal services that are really needed.
Minister, you must conclude.
I believe that, if we all work constructively across the chamber, we will end up with a bill that is appropriate, proportionate and effective. I therefore urge the Parliament to agree to the principles of the bill.
That concludes the debate on the Regulation of Legal Services (Scotland) Bill at stage 1.
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