Chamber and committees

The judiciary are raising important constitutional principles about the separation of powers between the Executive, the legislature and the judiciary, and we recognise the absolute necessity of those principles. It is important to be clear about what the bill does: it does not impinge on the independence of the legal profession or the judiciary. I wrote to the committee on 29 November to make clear my intention to amend the bill to address the issues.

The bill builds on the existing legislative framework, which provides a role for ministers to act in the public interest to ensure that regulation is being carried out effectively and transparently. The bill adopts existing checks and balances that require the Lord President’s consent and parliamentary scrutiny of use of delegated powers to ensure that any action is in the interests of legal practitioners and the public.

Ministers have had a role in legal regulation in Scotland since 1990. In 2007 and in 2010, Parliament placed further functions on the Scottish ministers in respect of legal services regulation. Having said that, we understand the concerns that have been raised, which is why we have committed to lodging amendments at stage 2, because we want the bill to strike the right balance for the various stakeholders.

When we made the decision back in August, officials did start to engage with stakeholders and with the Lord President’s office about the sections that were highlighted and about where to make amendments and come to an agreement.

I appreciate what Ms Gallacher says, but when the bill was introduced, I felt that there was strong opposition to the ministerial powers in the bill and, when Esther Roberton gave evidence to the Delegated Powers and Law Reform Committee, she did not believe that ministers should have a role. I did not want that to detract from the general principles of the bill—although, in a way, it has done that. The general framework of the bill, which will renew the Scottish legal complaints system and make it easier for consumers, is all good and we can move forward and focus on that. I was just trying to take away the part about Scottish ministerial powers. As I said, we will update the committee about any progress on that as soon as we can.

I saw the evidence from Bill Alexander, who said that it was challenging and sometimes traumatic for the Association of Commercial Attorneys to become a regulator. I think that that is the only organisation to have become a regulator since 1980. I also saw that Lady Dorrian said that it should be challenging to go through that process, so I think that we are striking a balance.

I do not believe that it does so. As the committee heard in evidence last week, the Lord President already has a significant role in the oversight and regulation of legal services, which is not the same as directly regulating the provision of legal services. The Lord President is not involved in the day-to-day regulation of legal services: he has oversight of some aspects of the Scottish Legal Complaints Commission but does not consider determining complaints, so I do not believe that that alters the general principles of the bill.

Absolutely.

Yes, I recognise that, and that is why I will be eager and keen to share where we are with each of the sections that will be amended, as my letter of last week said. As we make progress and come to agreement with our stakeholders and the Lord President, I will be happy to keep the committee updated on all progress, so that you can take a view on that for your stage 1 report.

Yes—absolutely. My officials are having discussions with the Lord President’s office. Any such amendments will affect other parts of the bill, which is why we have to engage on all aspects of moving forward with the amendments. There is not a straight cut to remove one function and give it to the Lord President; we have to consider the whole bill while we are drafting the amendments.

The bill tries to find a compromise in the middle. It is not trying to upset both sides. The Scottish Government carefully considered the Roberton report following its publication and had an extensive discussion with stakeholders. Although the recommendations were supported, there were polarised views from the legal sector as well.

We have heard from stakeholders that there is a lot of support for the bill. For example, Dr Marsha Scott from Scottish Women’s Aid said:

“I welcome many aspects of the bill.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 3 October 2023; c 10.]

The removal of practising restrictions on charities directly employing a solicitor has been welcomed. That will be transformational for charities’ ability to support vulnerable people.

There are lots of positive things in the bill. I would not say that it is making both sides unhappy.

I am happy to address that, and I might get my officials to contribute, as they have been liaising with the Lord President’s office. I agree: the devil is in the detail, but there has been agreement in the discussions with the Lord President’s office and other stakeholders as to what that detail will be when we proceed with the stage 2 amendments.

Leanna MacLarty or Jamie Wilhelm may wish to add something about engagement with the Lord President’s office.

At the moment, officials are working with all stakeholders, including the Law Society of Scotland and the Lord President’s office, and engagement is continuing. We hope to have agreement on most amendments at the beginning of the new year, and I am willing to keep the committee updated on all progress.