Chamber and committees

I have to agree to disagree with Mr. Mundell. There are no people feeling uncomfortable here. I have been listening since before the bill was introduced. That is the reason why officials are engaging with sector stakeholders and the judiciary on how we move forward with the bill and bring a balance to the issues that have been raised thus far. The Scottish Government is considering the options for amendments and reflecting the views of stakeholders, including the senior judiciary, with the intention of building a consensus around the reform.

We have indicated an intention to make amendments and we are working on developing them in the meantime. We are aware of the importance of the stage 1 parliamentary process in drawing out all stakeholders’ views and of the committee’s consideration of the bill. We have had constructive engagement with the senior judiciary and their officials to build consensus around the best approach to the detailed provisions. The planned changes to the bill will take time to work through. However, as we go through the different sections I will provide the committee with information on what our current proposals are.

There has been on-going engagement with stakeholders and the legal sector. I bring in Jamie Wilhelm to give an update on that.

Yes.

I would just like to thank the committee for its time, and I look forward to receiving your report.

We are working on the detail of that now; we are in discussion about that.

The bill seeks to take a risk-based and proportionate approach. The categorisation of the regulator has implications in respect of the operation of its regulatory functions. For example, a category 1 regulator must delegate its regulatory functions to an independent regulatory committee and establish a client protection fund, whereas category 2 regulators would not have such duties.

It is considered important that the bill contains a mechanism to alter the category of an existing or new regulator, should there be a significant change in how a regulator meets the relevant criteria under section 8(6). In order to strengthen the safeguards there, we intend to introduce amendments whereby the Lord President’s consent would be required before any changes are made to the regulatory category of a regulator.

We are also considering amendments that would limit the scope of how such changes may be sought by limiting that to being done at the request of certain bodies such as the regulators or the consumer panel.

In addition, there may be scope for a new regulator to enter the market, which may require consideration of its categorisation or a change to that categorisation in respect of changing circumstances. For example, the Association of Construction Attorneys has only six people in it, so we do not feel that it would be appropriate for it to be in category 1, given all the duties that are put on category 1 compared with category 2.

The power allows for changes to a regulator’s functions. Where that relates to a regulator whose regulatory scheme was approved by virtue of the 1990 act, or for future regulators that achieve accreditation by virtue of the bill, that may be done via direction. That is not considered possible for existing regulators whose regulatory functions are set out in primary legislation, such as the Law Society and the Faculty of Advocates. It is considered, in such a case, that regulations are the most appropriate way to make changes. I will give an example. If it was considered that the Law Society had failed to properly regulate conveyancing or executry practitioners, that function could be used.

The power is also designed to be applied when a category 1 or category 2 regulator has not observed the regulatory objectives. Having considered stakeholders’ feedback, we intend to lodge amendments at stage 2 to transfer the responsibilities in sections 19 and 20 to the Lord President. We are also giving consideration to amending the sections so that regulations may be introduced only on the recommendation of the Lord President. As an additional safeguard, we are also considering whether the Lord President should have to give consent to any draft regulations before they can be laid in Parliament.

I have listened carefully to the concerns of the legal sector. Even though Esther Roberton, who appeared before the committee last week or the week before, wanted an independent regulator, she did not consider it appropriate to have any ministerial interference. I am listening carefully to such views, which is why we are considering those amendments.

Yes, the matter has been raised with me. As you know, it is not possible for the Scottish ministers or the Scottish Government to intervene in or comment on individual legal matters. However, I will be happy to meet you to discuss the issue.

Since the bill has been introduced, there have been on-going discussions with stakeholders, the Lord President and the judiciary about that. We are still at stage 1, so we have a bit to go, but as we move forward through the parliamentary process, we will be happy to provide further detail. At the moment, we are still working on the detail.

I do not. I will bring in my officials, but since the introduction of the bill, we have shown a willingness and an openness to work with the judiciary and stakeholders and to consider amendments prior to stage 2, so I do not agree with you.