Legal Profession and Legal Aid (Scotland) Bill: Stage 1

– in the Scottish Parliament at 2:55 pm on 7 September 2006.

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Photo of Trish Godman Trish Godman Labour 2:55, 7 September 2006

The next item of business is a debate on motion S2M-4713, in the name of Cathy Jamieson, that the Parliament agrees to the general principles of the Legal Profession and Legal Aid (Scotland) Bill.

Photo of Hugh Henry Hugh Henry Labour 2:57, 7 September 2006

We want a Scottish justice system that is fit for the 21 st century. It must meet the changing needs of families and communities in today's Scotland. We want laws that meet the needs of our society and we need to recognise the high expectations that consumers have of public services. We also need to acknowledge the demand for accountability and transparency in the delivery of those public services.

The Legal Profession and Legal Aid (Scotland) Bill is yet another part of our modernisation of the justice system. It seeks to ensure that we build on the excellence of our legal services while responding to the demands of 21st century Scotland. By doing that, we will improve access to the justice system for everyone.

The bill proposes a number of significant measures. To improve the access that I mentioned, the bill will enable the Scottish Legal Aid Board to fund non-lawyers who have expertise in specialist areas. The bill already provides for those advisers to access case-by-case funding, and I am happy to confirm that at stage we will introduce 2 proposals for the board to provide block grant funding as an additional route. I am grateful to all the representatives from advice and information services who have given evidence supporting that change and who have talked with us more informally about how it would work. We have listened and believe that the additions to the bill will bring further improvements to how we meet unmet legal needs in future.

The bill also provides for new rights of audience in court. Section 42 paves the way for commencement of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. That will open up rights of audience in courts and rights to conduct litigation to members of professional organisations other than legal professional bodies, subject to a rigorous vetting process. That will increase access to justice and increase competition.

As well as improving public access to legal services, it is right that the bill should reflect public demand for the accountability and transparency that I mentioned. We want complaints against the legal profession to be dealt with quickly and we want lawyers to deal with complaints at source wherever possible. However, when dialogue breaks down and agreement is not possible, the public must have confidence that complaints will be resolved effectively and impartially. I acknowledge the efforts that the Law Society of Scotland and the Faculty of Advocates have made in recent years to improve the complaints system, but the idea lingers in the public's mind that, in investigating complaints against lawyers, the legal profession is neither impartial nor transparent.

The bill therefore provides for the creation of the Scottish legal complaints commission to deal with consumer complaints. Its board will have a non-lawyer majority, so consumer interests will be well represented at the organisation's heart. Appointments will be made by the Scottish ministers and the appointments process will be subject to oversight by the Scottish commissioner for public appointments, which will ensure that appointments are made on merit.

Photo of Hugh Henry Hugh Henry Labour

I will give way after I finish the next section of my speech, which is on the same issue.

We believe that our proposals comply with the European convention on human rights and will allow the commission to be independent, but we recognise the concerns that have been expressed. To underline our commitment to the commission's independence, we will lodge amendments at stage 2 to remove ministers' power of general direction in relation to the commission; to create a role for the Lord President in the removal of commission members; to provide security of tenure for commission members, who will serve a fixed term of four to six years; and to restructure the commission's decision-making procedures to ensure that formal determinations of complaints are made only by commission board members.

Photo of Phil Gallie Phil Gallie Conservative

The question that I intended to ask about the ECHR has been answered, but other ECHR aspects arise, particularly in relation to the penalties that will be imposed on solicitors who have shown that they have not erred but who may have to pay a hefty price because of errant complainants. Is the minister convinced that the bill complies with every aspect of the ECHR?

Photo of Hugh Henry Hugh Henry Labour

That is a new ECHR argument that has not been raised with me before, but we are convinced that the bill is ECHR compliant. Ministers have satisfied themselves and the Presiding Officer has been satisfied that the proposals are ECHR compliant. The further measures that we have taken will provide further confidence that the bill is completely ECHR compliant.

The complaint-handling reforms that are proposed in the bill have their roots in the recommendations that were made by the Justice 1 Committee in the previous session, but some of the changes that I have mentioned and some other changes build on work that was done by the Justice 2 Committee, which I thank for the thorough job that it did and the report that it produced.

The paper "Reforming Complaints Handling, Building Consumer Confidence Regulation of the Legal Profession in Scotland Consultation" attracted more than 500 responses and our consultation paper "Advice for All: Publicly Funded Legal Assistance in Scotland—The Way Forward" also attracted a significant number of responses. From the responses that we received, it was clear that lapses from high professional standards—however rare—could have severe consequences for people. We concluded that an independent system was needed not only to resolve disputes but to achieve consumer confidence. The bill will therefore empower the commission to investigate and adjudicate on complaints about service that can include an element of negligence. The commission's services will be free of charge to complainers.

The bill will increase the financial compensation that is available when a complaint is upheld. The maximum compensation level for service complaints will rise from £5,000 to £20,000. I stress that the new level is a maximum award and not an average payout. It is intended to cover cases of significant loss that was caused by negligence.

The bill will leave the investigation of conduct complaints with the professional bodies but will give the commission some oversight powers. The bill will also introduce financial compensation of up to £5,000 for conduct complaints. That strikes a balance between recognising the professional bodies' role in regulating their members and boosting public confidence in their regulatory procedures.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I am aware that the maximum compensation level rose from £1,000 to £5,000 recently. Why did the minister choose to increase the level to £20,000? I have been asked that many times.

Photo of Hugh Henry Hugh Henry Labour

The £5,000 figure that I mentioned in my latter point is the proposed new maximum compensation for conduct complaints. The £5,000 that I mentioned earlier, which is the figure to which Mike Rumbles refers, is the current maximum compensation for service complaints. We want to achieve a situation in which the commission can deal with as many complaints as possible without having to resort to court action. That provision in the bill reflects the nature of many of the complaints that are received. The bill provides for the potential to award a significant amount to cover loss and injury, but the amount proposed is not, in today's world, out of order with what people might be expected to pay. When I consider the Financial Ombudsman Service, I am confident that the new commission will use those powers appropriately.

Returning to conduct complaints, I can also say that, in addition to the other points that I have made, we will increase the non-lawyer membership of the Scottish Solicitors Discipline Tribunal to 50 per cent.

Photo of Hugh Henry Hugh Henry Labour

I will just make this final point before giving way to Mr Swinney.

The funding for complaint handling will continue to be provided by the legal profession but with a two-levy system of funding: an annual general levy will be payable by all practitioners and a specific levy will be payable by practitioners when a complaint is made against them. Having listened to the evidence presented to the Justice 2 Committee regarding the complaints levy, we will lodge an amendment at stage 2 so that the levy will apply only to upheld complaints. That amendment will reinforce the polluter-pays principle.

Photo of John Swinney John Swinney Scottish National Party

On the handling of conduct complaints, the minister said that the commission will have a power of oversight in relation to conduct complaints that have been handled by the professional organisations. Section 16(2)(6) of the bill provides that

"the Commission may direct the professional organisation to comply with that recommendation" if the commission is dissatisfied with the way in which the professional organisation has handled a conduct complaint. Is that power greater than the power that the Scottish legal services ombudsman has had? What does the minister envisage the commission being able to do in such circumstances?

Photo of Hugh Henry Hugh Henry Labour

That is a fairly substantial question, but I do not have time to go into the details to do it justice. I will write to Mr Swinney on that issue and copy the correspondence to the Justice 2 Committee for its information.

The legal aid provisions in the bill are part of a broader programme of work to improve the delivery of publicly funded legal assistance. The Scottish Legal Aid Board has worked in partnership with local authorities and advice providers to explore different models for delivering advice. The board has also shown its willingness to explore new methods of working to improve access and to achieve better use of scarce public resources. The Public Defence Solicitors Office is an example of that. At present, I am considering proposals—this relates to a point that Jim Wallace raised earlier this afternoon—to expand the network of PDSO offices. Such an expansion could, I believe, allow the provision of advice and representation to people at a number of further locations throughout Scotland. In doing so, I will bear in mind the point that Jim Wallace made about Kirkwall.

Photo of Maureen Macmillan Maureen Macmillan Labour

As the minister knows, the public defender's role in the criminal legal aid system has been very successful in Inverness. Does he recall the correspondence that I have had with him about the difficulty of accessing civil legal aid representation by solicitors in rural courts in the Highlands? Will the minister consider piloting a service in the Highlands to provide a publicly funded civil legal aid practitioner so that we can ensure that people have representation in courts where no private firm of solicitors is available?

Photo of Hugh Henry Hugh Henry Labour

Maureen Macmillan has pre-empted the next point in my speech. I recognise the concerns that she, along with Jim Wallace and others, have raised. On a number of occasions, Maureen Macmillan has written to me about the problem that exists in remote rural areas. Today, I am pleased to announce that the Scottish Legal Aid Board will develop a similar network of publicly employed solicitors to provide extra help to the public in matters of civil law in areas where there may be unmet demand. Such a development represents a major step towards our goal of having a well-planned system in which people get the advice they need from whoever is best placed to provide it.

Photo of Murray Tosh Murray Tosh Conservative

Minister, I can give you another couple of minutes.

Photo of Hugh Henry Hugh Henry Labour

A great deal of work has also been done to improve publicly funded advice in Scotland. A number of changes have been made to the legal aid system to reflect and underpin reforms such as those dealing with High Court procedures. We are considering proposals for the extension of eligibility for civil legal aid. We have also authorised the Scottish Legal Aid Board to extend the payment period for instalments of contributions in civil cases, thereby making it easier for people on modest incomes to benefit from legal aid.

The bill proposes a package of reforms that is intended to promote high standards in legal services and to ensure access to those services for all of Scotland's people. I believe that the bill reflects the will of Parliament. More significantly, I believe that it serves the best interests of those whom we represent. I have pleasure in commending the motion to the Parliament.

I move,

That the Parliament agrees to the general principles of the Legal Profession and Legal Aid (Scotland) Bill.

Photo of Murray Tosh Murray Tosh Conservative

A number of members who wish to speak in the debate, according to my script, and who are present in the chamber have not pressed their request-to-speak buttons. I would be obliged if they would do so.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 3:11, 7 September 2006

I concur with a great deal of what the minister has said. It is important to put on record at the outset that Scotland has been well served by its legal system and its legal profession. This is the 21 st century and we need to deal with the changed society that now exists, but we must recognise that our legal system has served us well for hundreds of years. It has had its faults and it still has its quirks, but in the main it has been good for us and we should take pride in it. The legal profession is often disparaged and an influx of comedy from the United States seems to have made it the butt of all jokes, but it is a profession in which I was happy to serve for many years. The legal profession in Scotland has had a few rogues and has made mistakes on occasion, but in the main it has served us well. People in the profession do a good job, regardless of the capacity in which they are operating, and Scotland benefits from them. That should not be forgotten.

However, the minister is correct to say that we live in a changed society. People have different expectations and we must change with the times. The question of complaints, in particular, has caused a great deal of angst. Previous committees, as well as the Justice 2 Committee, which is considering the bill, have addressed that issue. At one stage, the Law Society resisted change in the handling of complaints, but it now correctly accepts that that is required. I accept that in most instances the Law Society acted fairly and that people received good treatment, but there was a perception that that was not the case. Justice not only needs to be done, it needs to be seen to be done. The general public did not believe that they were well served when making complaints against solicitors, so change had to take place, irrespective of what was happening. We should welcome the fact that the Scottish Legal Aid Board has decided to deal with the issue in conjunction with the Executive, instead of being dragged along kicking and screaming. We must work together.

I return to some points that were made yesterday about the role of the Opposition in the chamber. The Parliament is obliged to get the law right in this area. The minister is correct to say that we are trying to update the organisation of the legal profession. There are aspects of legal aid, both civil and criminal, that need to be addressed in the 21st century, and we intend to work with the Executive on those.

We support the general principles of the bill. Some matters have been raised with us by the Law Society and other organisations, all of which will doubtless have lobbied the minister in the first instance before turning to us. The minister has addressed some of those points and we welcome the fact that he has taken them on board. There are other matters on which we think action needs to be taken. The minister is correct to pay tribute to the Justice 2 Committee for its work, because it has given a great deal of consideration to those matters. It is important that we try to get right legislation that is not simply for the next four years or for the term of the Lib-Lab Executive but which creates a framework for the handling of complaints and for aspects of the operation of legal aid that will serve us for some time.

There are some matters of concern. We hope that the issue of the independence of members of the commission will be addressed to some extent by the concessions that the Executive has made and the amendments that it intends to lodge. Doubtless we will receive responses from others if they do not think that the changes are adequate. We can deal with those responses at that time.

It was appropriate for the Justice 2 Committee to raise the issue of who pays, as it has been of great concern to firms and members of the profession. It is iniquitous that if a complaint against an individual is not upheld, they should be required to pay. That is a sword of Damocles hanging over people. Solicitors will have problems paying for the operation and administration of the system and there will be no alternative for the profession but to meet the cost. However, what has been proposed is iniquitous and we hope that it will be addressed.

Distinguishing between service, conduct and negligence complaints is difficult and the subject was scrutinised intensely by the committee. In instances of overlap there will be times when the wisdom of Solomon will be required. Our position is that conduct, service and negligence complaints should be separated and we are glad that the Executive accepts that principle. However, there will be times when we will be required to leave it up to those who are entrusted with operating the system to use their common sense to try to work out some practicalities. We cannot provide for every scenario in legislation.

We welcome the announcements about the provision of legal aid both in the bill and in the minister's speech today because it is a growing problem that we must address. We in Scotland must try to reach a consensual view on the matter; otherwise we will sleepwalk into disaster. We already have problems with the availability of dentists in this country, not simply in rural areas but in housing schemes and other areas in urban Scotland. There is a danger that we will wake up one day to find that there are no criminal or civil lawyers in rural parts of Scotland or in other areas, unless we make some changes. That is not to say that the changes will be easy or simple and we have a great deal of sympathy with the Executive.

The proposal to transfer of legal aid in solemn proceedings to the Scottish Legal Aid Board is appropriate. The current system causes a great deal of angst among the general public because of the almost automatic provision of full legal aid to someone facing a serious criminal charge; there is no scrutiny of their income and they do not have to make any contribution. At the same time, the lady separated from her husband after a lifetime of domestic violence, trying to keep the children warm, clothed, fed and housed, faces a substantial bill. That is manifestly unjust and needs to be addressed. There is no simple way of charging and we need to provide for those who currently lose out. That problem cannot be addressed in the bill alone, however—at some stage, we have to consider the provision of services, although the minister is correctly tackling the issue by extending the scope of the bill to civil assistance.

The final thing that we must do was the subject of a written answer that I received yesterday. Although I appreciate how such a situation has occurred, those who do important work that can be dealt with only by qualified solicitors must be properly paid and not have to make up their complaints levy by doing marginal work such as photocopying and taking statements. When the Executive instructs a private firm of solicitors and a trainee or paralegal is paid at a higher rate than a legal aid lawyer defending in a terrorism or murder trial, there is something wrong. That must be tackled and cannot be addressed in the Legal Profession and Legal Aid (Scotland) Bill alone. However, we support the general principles of the bill and will work happily with the Executive to try to get things right for the 21st century.

Photo of Margaret Mitchell Margaret Mitchell Conservative 3:18, 7 September 2006

I confirm that the Scottish Conservatives welcome and support the general principles of the bill: namely to improve the handling of complaints against legal practitioners in Scotland and to try to ensure better co-ordination of the delivery of publicly funded legal aid.

I will deal first with the provisions on legal aid and legal representation. The bill enables legal representation to be provided by a wider range of professional bodies, which is certainly to be welcomed. We also look forward to hearing more details of the extent to which the Public Defence Solicitors Office will be involved.

We support the provision to allow the Scottish Legal Aid Board to fund specialist advisers who are not lawyers. I am pleased that the minister recognised the clear and distinct administration and resource problems that would have been created by the provision of case-by-case funding and confirmed that it will be addressed at stage 2 with an amendment to add block grant funding and thus safeguard agencies' ability to concentrate on providing advice.

On the provisions to improve the handling of complaints against the legal profession, I share people's unease at the proposal to give the Law Society the dual role of being responsible both for promoting and for policing the profession. Criticism of such self-regulation has led to a move to co-regulation with a multilayered regulatory framework involving ordinary courts and various professional bodies. Despite that, the current system is still seen as being heavily weighted in favour of the practitioner.

As a result, the bill proposes the creation of a new independent statutory body, the Scottish legal complaints commission, which will have a non-lawyer majority and which will take over the Scottish legal services ombudsman's role in overseeing service complaints. I acknowledge that such a measure is intended to promote consumers' interests—indeed, that aim is at the heart of the bill. However, despite the minister's announcement of the amendments that he intends to lodge at stage 2, we still need clarity about the considerable powers that the bill will confer on the Scottish ministers.

Under the bill, a minister has the power to appoint or dismiss commission board members; approve the appointment of the chief executive; direct the commission on the appointment of employees and their terms and conditions, including their salary; change the commission's duties and powers—which, in itself, is a huge power; and direct the commission in the exercise of its functions.

The minister has said that he wants to establish a commission that provides a dispute resolution service independent of the legal profession. However, we still need clarity over the crucial question whether the commission will be independent of the Scottish Executive. The powers that the current bill seeks to give the Scottish ministers will compromise the commission's necessary independence and, in fact, strike at the very heart of our democracy. That said, I am very pleased that the minister has partly acknowledged that point in the amendments that he intends to lodge, especially in the proposal to involve the Lord President of the Court of Session in appointments to the commission. Without its independence, the commission will not fulfil its intended role. Worse still, it will become almost a branch of the Scottish Executive.

Other amendments must be lodged at stage 2 to address legitimate concerns about provisions to deal with complaints about inadequate professional service. At the moment, the Scottish courts determine issues of fact and law in negligence. As other members have pointed out, the commission would take over that responsibility and would be able to order payment of compensation up to £20,000. Serious concerns have been expressed about whether such a provision complies with the ECHR, given that, despite the minister's assurances, it is unclear whether, even under the terms of his proposed amendment, the commission would be independent and impartial. Moreover, there is no external right of appeal if the commission upholds a service complaint. A more worrying prospect is that many firms that currently act for charitable organisations either free of charge or at reduced fees might decline such work for fear of being subject to Court of Session litigation from every member of those organisations.

The bill is well intentioned. However, despite the amendments that have been outlined today, I believe that huge question marks still hang over the commission's independence from the Scottish Executive and the limits on the access to free independent advice that the bill is intended to promote.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat 3:24, 7 September 2006

The relationship between an individual and his or her solicitor is very important. For many people, it will be a straightforward matter, but for other clients, it will affect their lives and livelihoods. For example, in family law, the relationship is often very personal, and when it breaks down, there needs to be, as the minister rightly said, an impartial and transparent mechanism for resolving disputes and, where necessary, determining culpability if there has been poor or inadequate professional service.

The committee received much evidence during its consideration of the bill's general principles and I believe that we were able adequately to weigh support for the main aspects of the bill against some of the concerns about it. Of course, the issue is polarised between those who believe that every lawyer is a crook and those who argue that the status quo is perfectly fine and fit for purpose. The committee resolved that the current system—under which lawyers police themselves for service issues—is not fit for purpose. That is not necessarily a criticism of the dedication of the Law Society of Scotland, but a recognition that there is a strong case for reform.

We have accepted the bill's general principle of reforming the handling of complaints from people who believe that their solicitors provided them with inadequate services. Fundamentally, we believe that every effort should be made to resolve complaints at source. That has not been emphasised so far, but a fundamental point of the evidence from the ombudsman and others was that a system that solves problems through mediation—which is included in the bill—or early dispute resolution will be far more effective than a bureaucracy. Nevertheless, there are times when that cannot happen or when it fails, so we need to consider the practicalities of a new system and how it should operate.

I will comment on the organisational aspects of the proposals for a Scottish legal complaints commission, such as whether it should consider all complaints—service and conduct complaints—and, if not, how it should co-operate with the Law Society. I am happy that the commission will handle the complaints about service, which are about consumer issues by and large, and that complaints that are more about unfitness to practise because of personal conduct should remain with the profession.

Of course, there will be cases in which a single complaint has dual or multiple aspects that involve a service complaint as well as raise questions of conduct. It is important that there be clarity on such cases, especially as the proposed changes are designed to improve the system and make it more straightforward, rather than more confusing. Therefore, I am pleased that the minister has indicated that amendments will be lodged at stage 2 to address the committee's concerns, especially as compensation for an upheld conduct complaint will be up to £5,000 and for inadequate professional service will be as much as £20,000.

Photo of John Swinney John Swinney Scottish National Party

On the divide between service and conduct complaints, will Mr Purvis say a bit more about what he would expect to be in the amendments to provide the necessary clarity when the bill goes to stage 2?

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

I am happy to do so. In correspondence with the committee, the minister has indicated that there will be a duty on the complaints bodies—the commission and the Law Society—to operate a clear protocol for handling cases. That can be drawn up only between the commission and the Law Society once the commission has been established. I am satisfied that it is the role of the Parliament and the minister to say that that should happen. It will be up to the commission, and it will be in its interest to ensure that the procedures are strong.

I will turn to a couple of other substantial areas. The proposed changes mean that many solicitors will stop offering legal aid services and that many solicitors will cease business for certain types of work in rural areas or for vulnerable groups. Also, the proposed maximum compensation award for IPS of £20,000 will mean that some solicitors will simply cease working altogether.

I deviated from the committee's majority view when it stated that it was satisfied with the bill's proposal for a levy on solicitors against whom a complaint has been made. The proposal that there should be a rough 50:50 split between a set levy and a complaints levy to fund the commission suggests that the complaints levy would raise substantial funds. The bill's accompanying documents suggest a levy of around £300. That raises the difficulty that, in a small number of cases, an individual might be stimulated to make a complaint against a solicitor that has no grounds but is above the threshold for a frivolous or vexatious complaint, which could stimulate the solicitor to offer the individual what they would term compensation of a sum less than the complaints levy.

While I welcome the minister's position that the polluter-pays principle will be adopted, I am concerned that if there is a 50:50 split in respect of funding for the commission and the levy is paid only by solicitors who have been found guilty, it might mean that the complaints levy is higher than is outlined in the accompanying notes to the bill, which could make the situation worse. I hope that the minister will acknowledge that there are genuine concerns, particularly among small solicitors and solicitors who operate in areas in which there has so far been a high number of complaints to the Law Society of Scotland. That will be part of the discussions at stage 2.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

I am anxious that I may be over time.

Photo of Murray Tosh Murray Tosh Conservative

You are over time. I should have called one minute, one minute ago.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

I am grateful for that and for the fact that I cannot give way to Mr Aitken.

On the independence of the profession, we are rightly proud, as Mr MacAskill said, of the legal profession and system in Scotland. The minister's response to the concerns voiced by the committee and witnesses about the need for an independent tribunal, as the commission will be in some areas, is important. The committee will welcome the amendments at stage 2 and will consider them closely. In particular, we will consider their ability to make the commission an independent tribunal, with recourse to courts for appeal, which would fully satisfy the concerns about the ECHR. The bill is a good one. It will make our current system, which is by and large good, even better. That is why the Liberal Democrats support the bill's general principles.

Photo of David Davidson David Davidson Conservative 3:31, 7 September 2006

I thank the clerking team for the enormous amount of work it got through, particularly in the early stages, when we received about 600 submissions from the call for evidence, all of which the clerks processed diligently and speedily. I thank also the Scottish Parliament information centre for its work to support the committee and the clerks. Of the 600 or so submissions, more than 30 came from individuals who had experience of the current complaints-handling system, which had not always proved to be to their satisfaction. I thank Margaret Ross, the committee adviser, who was a tremendous support and asset to the committee in helping it through some of the complexities of the bill. Finally, I thank all of the witnesses, especially the individuals who gave evidence, and the many people who have since written to the committee to comment on the stage 1 report, which has been circulated to members.

However, I am disappointed that the Executive response to the committee report was received only this morning, certainly by me. The committee report was lodged with the Parliament in June and it would have been extremely helpful if the committee had been able to consider fully and take advice on the contents of the Executive response. The committee will have to go straight into stage 2 without having had the chance properly to scrutinise the Executive response. The committee asked in the report that it should receive as much information as possible prior to stage 2 so that it could work collectively to make a really good job of the legislation, as Kenny MacAskill said.

From my brief reading of the Executive response, and from the minister's comments today, it is fairly clear that ministers are responding positively to some of the committee's suggestions, but the definition of negligence and the separation of professional misconduct and inadequate professional service is still somewhat unclear. I am disappointed that little clarity was offered on the legal aid section of the bill prior to the minister's statements, because as other members will no doubt say, that is an important matter of concern to the public.

The minister intends to lodge more than 300 amendments—that is apart from any amendments that other members might lodge—and it is vital that the committee should have adequate time to consider them. This is an important bill, the fine details of which must be considered carefully. There is a need to establish consumer confidence in the new commission and processes, which must be equally fair to all who are involved in a complaint.

The committee welcomes moves to improve complaints resolution at an early stage. Most lawyers in Scotland operate without any complaints being made against them. Solicitors conduct around 1 million legal transactions in a year and of the 5,000 or so complaints that are made, only a small number require action. The committee wants to ensure that the Executive provides absolute clarity on the definitions of inadequate professional service and professional misconduct. Somehow, negligence, which is a grey area, must also be clearly defined. We asked for information on that prior to stage 2.

The Faculty of Advocates, the former Scottish legal services ombudsman, academics, the Scottish Consumer Council and the Scottish Solicitors Disciplinary Tribunal gave us evidence on how difficult it might be to separate conduct complaints from service complaints. As our report shows, the majority of the committee agreed with the proposed separation of complaints into those two categories. We recommended that arrangements should be included in the bill to deal with any disagreement between the Scottish legal complaints commission and the professions about how a particular complaint should be handled.

The committee asked for clarification of the rationale for the proposed maximum compensation levels of £20,000 and £5,000, although I acknowledge that the minister set out some of the reasoning behind that in the letter that arrived today and I am sure that we will get more details at a later date. The committee expects the commission to apply the same standards as the courts when assessing claims of negligence.

Some members have mentioned access issues. We took a great deal of evidence on the fact that smaller and rural practices may choose to do only certain types of work. Although we welcome the minister's comments on access to legal aid, there are still questions to be answered about how the issue will be dealt with when the bill reaches its final stage.

On the master policy and the guarantee fund, the committee received conflicting evidence about undue delays in the settlement of claims and the extent of the Law Society's involvement in the process. However, we received no objective evidence on that. Although the committee believes that the commission should have the power of oversight of the master policy and the guarantee fund, it notes that the commission's ability to take action will be limited to making recommendations.

The minister partly addressed ECHR compliance. The committee received differing legal opinion on whether the bill will be ECHR compliant, particularly in relation to independence and impartiality and the lack of a right of external appeal. The committee has great concerns about the arrangements for the appointment of members of the commission. Schedule 1 provides for Scottish ministers to appoint commission members and gives them the power to remove members and to direct some of their actions. The Executive was asked to respond to concerns about that. The proposal that the Lord President and the Judicial Appointments Board could be involved seemed to have been welcomed, but the minister has now suggested that the involvement of the Lord President would give the impression of professional control of the appointments system, even though he is regarded as being an independent person. I would like ministers to clarify their position.

We received varying legal opinions on an independent appeals mechanism. The committee agreed with the Finance Committee that the financial memorandum and its accompanying documents did not give sufficient detail on the commission's funding, the levies and the accountability of the financial process.

On behalf of the committee, I thank Hugh Henry for appearing to agree with the committee's views on the polluter-pays principle. We asked that legal aid should be based on a grant system and we welcome the fact that the minister seems to be moving in that direction.

It is vital that the Parliament sets up a robust, accountable, approachable and cost-efficient system that does not penalise the professions unduly, but which is fair to people who make complaints. The bill requires a significant amount of work to bring it up to the standard that the Parliament expects. We look forward to having sight of the minister's many proposed amendments. I make a plea for the committee to be given adequate time to consider those amendments fully so that it can complete its work correctly. In spite of those comments, the committee recommends that the general principles of the Legal Profession and Legal Aid (Scotland) Bill be agreed to.

Photo of Murray Tosh Murray Tosh Conservative

We come to the open debate. We can have speeches of six minutes.

Photo of Gordon Jackson Gordon Jackson Labour 3:39, 7 September 2006

I suppose that I had better begin with a declaration of interest. In case members had not noticed, I am a member of the Faculty of Advocates and have, at least, a passing interest in the operation and efficiency of the Scottish Legal Aid Board.

Legal aid transfer seems okay. I have no problem with the idea of transferring solemn procedure cases to the board. That said, I am not sure what has driven the transfer or what the problem was. I say to Kenny MacAskill that, under the system, people were refused legal aid on the ground of means. In some people's view, there were perhaps not many or not enough of them, but it certainly happened. I was worried about the change from the point of view of timescale and the work that is done on certain cases, but the board has told us that that does not pose a problem, and I must take its word on that.

This morning, I read the handout that the Scottish Legal Aid Board gave us. Reading between the lines, I was struck by a sense that the board thinks that, at this stage, the bill does not go far enough. For example, it points out that there continue to be problems with the existing scheme, in that some cases are not properly funded. One matter of interest to me, which the minister might respond to, is the idea of services being provided by, as they are being called, non-lawyer advisers. The board wants that to be done through grant aid instead of by allowing practitioners direct access to the existing scheme. I am not sure why ministers thought that that suggestion was not the best way forward, so perhaps they could tell us.

In general terms, the legal aid provisions in the bill are absolutely fine. Indeed, unlike my colleagues in the Faculty of Advocates, who want none of it, I have no real problem with the new complaints procedure. My colleagues think that they should be left to do it all themselves—although in fairness to the faculty, its proposals include an appeals structure; it was not suggesting that it would have the last word.

In some ways, I understand the argument that the Faculty of Advocates is making. In defence of my brothers up the road—

Photo of Gordon Jackson Gordon Jackson Labour

I cannot remember; it is so long since I have been there.

From personal experience, I know that the system is robust. The idea that somehow—and this should be said publicly—lawyers are soft and cover up for one another is not right. I am aware that we are talking about public perception, but I put on record the fact that anyone who thinks that lawyers are light on one another should think again.

I turn to the worry that the bill is yet another encroachment into judicial and legal independence. In The Scotsman today, I read that former judges—members will not have to go far to guess who they are—

"mounted an unprecedented attack on ministerial plans to overhaul the way complaints against lawyers are handled, branding them a threat to the independence of the law and an attack on democracy itself."

Perhaps that is a little overstated, although the attack could not be called unprecedented. Whatever else the bill will do, the situation is certainly not as serious as that. I do not want to make light of my colleagues' worries. They worry about losing their proper independence.

At the end of the day, I have come to the view that the matter is one of public perception, as others have pointed out. However, whether the public will ever be satisfied is another matter. Undoubtedly, the bill will not satisfy the people who are campaigning outside the Parliament today. That will always be a problem.

I can support some of what is being done in the bill. In particular, I can support it because of the attempt that has been made to divide conduct from services. There will need to be discussion about how that is done, as it is not easy to say which category a complaint falls into, particularly given that complaints are often made in a scattergun way. People tend to say, "I have lost the case. I am going to complain about everything that happened." Complaints handling will never be easy; nevertheless, the change is a good one, and I give some support to a new, independent board that will deal with inadequate services.

I was going to talk about some worries I had about the bill, but the minister described several proposed amendments and, like other members, I had to take out my pen and strike out most of my speech—that is one of the reasons why I have wittered on in the way that I have done. It would help us to know in advance that we would not have to make the speech that we intended to make.

There were real worries about the proposed levy, some of which remain. It is right that if a complaint is not upheld, no levy should be paid. However, solicitors who operate in small or single-solicitor firms in tough areas are genuinely worried about the proposal. I fear that they might stop taking on the work that they currently do almost for nothing—why should they take the risk? They might avoid contentious work and difficult clients. Most lawyers can tell as a client comes through the door whether the person is likely to complain if things do not go well. I foresee problems in that regard.

I think and hope that the proposals will work in practice. The courts will ultimately have to decide what the legislation means in test cases. The Presiding Officer is telling me to be quiet, so I will finish. In general, I welcome the proposals in the bill.

Photo of John Swinney John Swinney Scottish National Party 3:46, 7 September 2006

I hope that one of the consequences of the discussions that Mr Jackson had with his party during the summer will be that we hear more such speeches in the Parliament in the months to come.

I owe my interest in the bill to the experiences of constituents who have found the handling of complaints against solicitors difficult to endure and have had many aspects of their lives consumed by the pursuit of complaints. I have personally never had any difficulty in dealing with a solicitor and I have always been on the receiving end of good service, so I am speaking about the conclusions that I have reached from dealing with constituents in the nine years during which I have been an elected member of one or other of two Parliaments.

The bill's purpose is to improve consumer confidence in the legal profession and in the handling of complaints, which is undoubtedly necessary. The Justice 1 Committee tried to address the matter in the first session of the Parliament and made some—but not enough—progress.

I was struck by a comment that the chief executive of the Law Society of Scotland made in an interview in The Scotsman on 15 August. He said:

"The Scottish legal profession is held in phenomenally high esteem—everywhere except Scotland."

We must tackle that problem and I hope that the bill will be successful in doing so. My comments are designed to help the process, so that we do not have to revisit the issue in a few years' time because the bill did not go far enough.

Broadly, I welcome the bill, the Justice 2 Committee's report and the comments that the Deputy Minister for Justice made in response to the report. I put on record my thanks to the committee for being so accommodating of my presence as an interested observer of the committee's deliberations during the past few months. I am sure that there will be more of that to come. I also warmly pay tribute to both the Minister for Justice and the Deputy Minister for Justice, who remained true to their word after giving commitments a considerable time ago to introduce legislation and reflect on the issues. I make those remarks in the spirit of the new politics that Mr MacAskill encouraged us to embrace during yesterday's debate, but also in the hope that Mr MacAskill will forgive me, because I am about to disagree with my party's front-bench position, which has been set out during this debate.

My remaining difficulty with the bill concerns the separation of conduct and service complaints, for two reasons. First, I was struck by some of the evidence that the Justice 2 Committee heard from members of the public who had been affected by such issues. They said that complaints normally start as service complaints but inevitably end up as conduct complaints. In such a context it will be almost impossible to establish a thick line between conduct and service complaints. Much of the difficulty of resolving problems will hinge on that point—although Mr Purvis made a fair comment in response to my intervention on that point during his speech.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

Mr Swinney will recall the evidence that Professor Brown, the Scottish public services ombudsman, gave to the committee. In response to a question that I put to her, she agreed that the public need to be confident that the system will operate effectively, but do not necessarily need to know the details of how the complaint will be processed. Does Mr Swinney agree that that is the more substantial point about public confidence in the system?

Photo of John Swinney John Swinney Scottish National Party

That is a reasonable point. Obviously, we will discuss the issue in due course at stage 2, but I draw Mr Purvis's attention to the comments of the former Scottish legal services ombudsman, Mrs Costelloe Baker, who said:

"The split between service complaints and conduct complaints confuses the profession and it certainly confuses service users and people who come into contact with the profession ... The split lengthened the process, but it also created confusion for complainants about when the system had ended and when they would get a response to their complaint."—[Official Report, Justice 2 Committee, 16 May 2006; c 2375-76.]

In that respect, I found her evidence to be powerful and worth listening to.

Photo of Gordon Jackson Gordon Jackson Labour

Is not the point that the civil courts will eventually be the backstop? We should not lose sight of that. It is inevitable that they will judicially review decisions; problems of definition will then become much clearer. The courts themselves will lay down clear definitions for us. Is not that better than allowing everything to be dealt with in one way or the other?

Photo of John Swinney John Swinney Scottish National Party

To allow that to be case, one must be able to get one's case into court and have it determined. In my experience, it is often difficult for people who are involved in such situations to get their case into court by having a solicitor who is willing to encourage the process. I could bring to the Parliament's attention evidence that would substantiate what I am saying, but I do not have time to present it today.

I intervened in the minister's speech to try to get a feel for how far the Government is going in section 16 of the bill on the commission's power of oversight when it is dissatisfied with how the profession has handled a conduct complaint. If the minister can give me a substantive answer to that, it may allay my fears about the split between service and conduct complaints. Section 16(6) states:

"the Commission may direct the professional organisation to comply" with a recommendation when it is concerned about the handling of a conduct complaint. If an explanation by the minister goes as far as I would like it to go, the concerns that I have raised may be addressed. I am concerned that as a result of the service and conduct split, games of ping-pong that involve people's lives will take place, the process will become elongated and the type of issues with which we are currently wrestling—such as complaints taking years to resolve—will result. I am concerned that cases will go from the commission to the professional organisation and back again and that the complainant will be exhausted and bewildered by the process.

The Law Society has a difficult record in handling conduct complaints. I draw members' attention to a news article that appeared on 23 August 2006, which stated that unsatisfactory conduct complaints had been struck from the records of more than 250 solicitors because the Law Society had not gone about things in the right fashion. I caution members about allocating power to the Law Society, whose record on handling such issues is not impeccable.

Photo of Patrick Harvie Patrick Harvie Green 3:53, 7 September 2006

First, I want to address the central point of the bill—the creation of the new commission. That members throughout the chamber view the new commission as a positive additional safeguard is to be welcomed. We all hope that it will build trust in the legal profession by virtue of its independence.

It is interesting that the proposal for a new independent commission has been seen as no great drama, but it is a shame that that has not been the case with respect to other commissions, notably the Scottish human rights commission. I agree with the Justice 2 Committee about the creation of the Scottish legal complaints commission and with paragraph 87 of its report on the bill, which says that concerns about the finance of a commission can be addressed by "regular auditing" and "robust financial accountability". Such things are achievable. They are not rocket science. I hope that members of all parties come to recognise that such things can also be achieved with other commissions.

There appears to be a case, on the surface, for the commission to handle all complaints. It would be wrong to dismiss that out of hand. However, I suggest to people who take that view—I note some dissent on that issue in the committee's report—that it is worth seeing how the system works in practice with the current scope before looking again, some time down the line, at whether the correct balance has been struck. I have sympathy with the view that the profession has a legitimate role in setting and protecting its own standards of conduct, which can be seen as an important aspect of the profession's independence.

As for complaints that are not clearly one thing or the other—so-called hybrid complaints—I again compare the situation with that of the Scottish human rights commission, which will take complaints on human rights grounds when they are devolved, but will have to deal with another commission—the commission for equality and human rights—when they are reserved. There will clearly be hybrid complaints on human rights grounds, and a reasonable way of working can be established between the two human rights commissions. That is probably the case in this situation as well.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

On a point of fact, I understand that the Scottish commission will not take individual complaints.

Photo of Patrick Harvie Patrick Harvie Green

It will deal with matters when they are devolved, and it will deal with the CEHR when they are reserved. I am making the comparison to show that a way of working can be established. I accept the minister's position, which he made clear to the committee, that it will be for the legal complaints commission itself to determine how hybrid cases will be categorised.

I am pleased to see some emphasis on mediation in the bill. I welcome the fact that all sides appear to recognise the value of mediation, that it must be a voluntary process and that mediators' independence from the commission is important.

One of the most problematic aspects of the bill is the complaints levy. I welcome the fact that the minister has made it clear that it will be changed at stage 2, but I still find it bizarre that it was introduced, as it seems guaranteed to provoke a defensive reaction. To force individuals to pay simply because a complaint has been raised, regardless of its merits, seems extraordinarily unfair. Would we place that expectation on people in any other walk of life? Would we place such a burden on police officers, so that a police officer would have to pay if a complaint were made against them? Would we place such a burden on ourselves, as MSPs, so that we would have to pay for the Scottish parliamentary standards commissioner to investigate complaints against us, regardless of their merit? I do not think that we would. I am, therefore, surprised that such an approach was even suggested in relation to complaints taken to the Scottish legal complaints commission.

As for the impact of the complaints levy on small firms in general when complaints are upheld, I hope that it will not be a harsh, punitive system. We should aim for a recognition of mistakes having been made and a resolution to the complaint, not a punitive response, unless problems are repeated or solutions are persistently ignored.

The independence of the commission—and, by extension, the independence of the legal profession—was one of the most contentious issues, and rightly so. The Justice 2 Committee was right to highlight the concerns that exist and to ask the Executive for a response. That response, and the amendments that the minister has said he will lodge at stage 2, are an implicit acknowledgement of the fact that the bill as introduced took the wrong approach. I do not endorse the more extreme reactions, such as citing situations in Zimbabwe and the like, but legitimate concerns have been raised. I urge the committee to allow itself the time that it needs in the coming weeks to consider carefully all possible solutions to the problems before the bill returns to the chamber.

In general, I welcome the bill, especially the provisions relating to the legal profession. However, opportunities have perhaps been missed in relation to legal aid. Like Citizens Advice Scotland, I am concerned that the bill will only marginally increase the availability of legal advice. I hope that, when we see the bill at stage 3, significant improvements will have been made.

Photo of Jackie Baillie Jackie Baillie Labour 4:00, 7 September 2006

The Justice 2 Committee, which was charged with scrutiny of the Legal Profession and Legal Aid (Scotland) Bill, heard evidence from a wide spectrum of people. Yes, we heard from the legal profession, but we also heard from those who have had a less than desirable experience at the hands of the legal profession. Some said that the bill goes too far and others said that it does not go far enough, and some of that debate has been replayed today in the chamber, but all broadly welcomed the provisions in the bill.

We need to remember the context. People were increasingly unhappy about how complaints were dealt with, about the time taken and about the perception of vested interests. That led to accusations of bias, which generated the very lack of trust and confidence in the system that we are debating today. We have heard some examples—thankfully few, but they are equally unfortunate—of cases in which people were failed by their legal representatives.

I recognise—and it is worth putting on the record—the changes that the Law Society of Scotland made in recent times and, indeed, the significant improvement to its complaints process, but in many respects it was too late, because the damage was done. Confidence was not restored and, given that lawyers continued to police themselves, one wondered whether we could ever reclaim the required degree of confidence.

For me, the Executive's bill is very much about restoring confidence and ensuring that we have a system that people trust. I welcome the creation of an independent complaints commission—independent of the Executive and the Law Society—that will deal with complaints fairly and transparently and make decisions in which we can have faith.

I want to focus on two issues in relation to the commission before I move on to the legal aid aspects of the bill, but before I do that I turn to my learned colleague Gordon Jackson and remind him of the females who did indeed come before the committee. He might recall the name of Caroline Flanagan, the president of the Law Society of Scotland. The last time I looked, she was female. Secondly, giving evidence on behalf of the Faculty of Advocates, no less, was Valerie Stacey. The last time I looked, she was the vice-dean, and female too. Let that refresh Gordon Jackson's memory.

I move on to deal with the issue of levies. I accept the need for a general levy to contribute to the commission's running costs—it is appropriate—but the committee had genuine concerns about the complaints levy and the fact that it would be applied irrespective of outcome. The committee strongly believes that the levy should apply only if the complaint is upheld. In other words, we propose a system where the polluter pays. I am pleased that the minister has acknowledged the committee's concerns and will lodge amendments at stage 2 so that the levy will be payable only when a complaint is upheld or there is a settlement.

I turn to the compensation ceiling of £20,000, which is, of course, in addition to the refund of fees. I listened carefully to the debate. I am persuaded by the proposal to extend the definition of inadequate professional service to include negligence—I have no difficulty with that whatsoever—but I am unclear about the rationale for setting the maximum at £20,000. We have only just changed it—in April 2005—from £1,000 to £5,000. I understand that the Executive has spoken to the lead insurers under the master policy and noted the operation of the Financial Ombudsman Service, but I still think that the figure is arbitrary and that it does not reflect the position in Scotland. Undoubtedly, the debate will continue at stage 2. I am persuaded of the principle, but I am not convinced that we have arrived at the right figure.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I am interested to hear that the member has no problem with the inclusion of negligence in the definition of inadequate professional service. Will she elaborate on that? I think that there is a definite problem with that, which needs to be sorted out.

Photo of Jackie Baillie Jackie Baillie Labour

It is very simple. I appreciate that the Tories might not get this, but access to justice and enabling people to get a degree of resolution without recourse to the courts are things that we in this part of the chamber are promoting.

I turn to what is, for me, the most substantial part of the bill. It is fitting that Margaret Mitchell introduced her point, because the most substantial part is about improving access to justice. I am delighted by the announcements that the minister made today, which will make a practical difference in providing justice for all.

The bill as drafted would create case-by-case funding for non-solicitors, which would result in means testing of clients and the bureaucracy of individual application forms and would, at the end of the day, have a marginal impact on increasing the availability of quality advice. However, the deputy minister has acknowledged the need to deliver a step change in access to justice. His promise to amend the bill at stage 2 to provide grant funding is welcome, as are his comments about publicly funded defence for civil cases as well as for criminal ones, which will tackle unmet need. Civil justice provision must be based on need, not demand; it should be client centred rather than institution centred; and it must lead to greater empowerment for all those whom we were elected to represent. Those steps will tackle disadvantage through the provision of early and easy access to justice.

The deputy minister set out a positive course of action, with a series of announcements to the Parliament. Unlike my colleague Gordon Jackson, I would be happy to rewrite my speech, provided the minister keeps on that course.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat 4:05, 7 September 2006

In the 21 st century it is right and proper that we should have an independent legal complaints commission. Like John Swinney, I pay tribute to the justice ministers for introducing the bill. I have not been so keen on some of the other bills that they have introduced, but the present bill is absolutely the right way to go and is long overdue.

I am pleased that all members seem to accept that self-regulation is not appropriate for the legal profession in the 21st century. We must have a fair, open and transparent system that is also seen to be fair—perceptions are all-important. As a constituency MSP I, like many other MSPs, have received numerous complaints about the legal profession over the years. It is difficult for individuals to accept that the legal profession is involved in self-regulation and the handling of complaints. John Swinney said that he knows constituents who have become consumed by the complaints process because they do not see justice in the system. The bill attempts to put that right.

I was impressed with John Swinney's speech this afternoon. Like him, I feel that it will be difficult to divide conduct complaints from service complaints. Like the majority of non-lawyers who gave evidence to the Justice 2 Committee, I believe that the new commission could deal with both types of complaint. We have heard about the difficulties in separating the two. It has been suggested that the commission and the Law Society can sort out the matter between themselves. However, unlike Patrick Harvie, I do not think that it is a good idea to see what happens and then come back to the matter in the future. The pressure on legislative time is great these days, and we have an opportunity to get the bill right now. We have a duty to do so when we introduce a bill to change such a system.

It is a fact that, when a complaint is lodged, no one knows for sure how it will turn out. What might be considered a service complaint could end up as a conduct matter and vice versa. Members of the Scottish Parliament have a code of conduct, but when we set up the independent Scottish parliamentary standards commissioner we did not separate conduct and service matters; instead, we told people that complaints should be made to the independent commissioner and the matter would be taken from there. We all know that it is not easy to decide whether a complaint is about service or conduct. The feeling that, despite that problem, the Law Society and the commission will be able to sort out the matter after we have passed the bill is not good enough for us as legislators. We should consider whether, as I believe, we are making life more complicated than is necessary.

One reason why I wanted to speak in the debate was that, last Monday, David Davidson and I met a group of lawyers in Stonehaven in my constituency. They raised serious concerns about the bill, but the deputy minister addressed those in his speech, so I am delighted that I do not have to raise them again—I have put lines through that part of my speaking notes. I am pleased that the ministers have addressed those issues, particularly those about rural areas, which Maureen Macmillan mentioned. In my area, the bill as it stands would make it difficult for lawyers to take on civil legal aid cases. I welcome the announcement that that is to be addressed. I praise the ministers for their reaction to the debate so far.

Photo of Colin Fox Colin Fox SSP 4:10, 7 September 2006

Such is my dedication to the Justice 2 Committee and to the Legal Profession and Legal Aid (Scotland) Bill that, while other members have been sunning themselves this summer, I have been investigating QCs and solicitors up close in the Court of Session for the past three months.

The Executive is right to have introduced the bill in response to the overwhelming demand from the public for a legal complaints system in which they can have faith. As everybody knows, the current self-regulatory procedure has been subject to widespread criticism. Many people see it as lacking in transparency and accountability. As things stand, the Law Society of Scotland and the Faculty of Advocates deal with the complaints made against 11,000 solicitors and 300 advocates by investigating matters themselves. As a response to the widespread criticism, the Executive carried out a consultation. The public's preferred option—to have a wholly independent legal complaints commissioner dealing with all complaints—was not one of the options, unfortunately. That consultation was thus inherently compromised, and so is the bill, I fear.

As many members have already said, the self-regulatory system is seen as lawyers protecting lawyers. It does not enjoy the necessary confidence of the Scottish Consumer Council, for example. In its evidence on the system, it supported the aim

"to put the users of legal services at the heart of regulatory arrangements".

Although complainants who are unhappy with decisions that have been arrived at can seek redress by approaching the Scottish legal services ombudsman, that route is seen as both cumbersome and toothless. Mr Swinney referred to the evidence of Linda Costelloe Baker, the outgoing ombudsman. Her remarks reveal frustration with the bill's inability to take fully on board the public's criticisms. She said that the remit of the Scottish legal complaints commission will be limited to addressing complaints of poor service, that the rights of advocates and solicitors to self-regulation will continue where they should be scrapped, and that the Scottish legal complaints commission should be the regulator of adequate practice in the profession. The bill suggests that we move from self-regulation to partial co-regulation, replacing the legal services ombudsman with a Scottish legal complaints commission while, by and large, leaving lawyers to continue to regulate themselves.

Many members have used the debate to highlight the problems with the distinction between conduct and service complaints. In many ways, that goes to the heart of the bill. The suggestion is that complainants will approach the Scottish legal complaints commission for consideration of their case, and it will decide whether the case is about the service that legal practitioners have provided or about their conduct as legal advisers. Service complaints—for example, where a solicitor has not sent a letter or replied to a call timeously, or has failed to provide basic administration to an acceptable standard—will be considered by the commission, via a nine-person committee with a majority of non-lawyers. On the other hand, conduct complaints, regarding negligence or unprofessional representation, will continue to be the preserve of the Law Society of Scotland or the Faculty of Advocates' own client relations committee. Although the verdict will be subject to scrutiny by the legal complaints commission, such complaints will essentially remain in house.

The bill's division between service and conduct complaints is a replica of the system that the Law Society currently operates. The bill has come under a great deal of scrutiny regarding that aspect. There have been many critics of how we are handling the distinction. The Faculty of Advocates selflessly concluded that it was better to leave it all to it. Many members have rightly highlighted the many difficulties with the proposed separation. We fear that that could lead to confusing and difficult practical arrangements.

That is why I dissented on that part of the Justice 2 Committee's report.

Photo of Colin Fox Colin Fox SSP

I do not know if I will get the time—everybody else could blether for hours—but I would be happy to take an intervention.

Photo of Gordon Jackson Gordon Jackson Labour

How would Colin Fox propose that non-members of a profession deal with professional misconduct? For example, the British Medical Association looks at doctors' professional misconduct robustly with lay members. As the Faculty of Advocates representative pointed out, lay people are involved in that and their input is extremely important. How does Mr Fox think that people who are not in a profession can deal with professional misconduct?

Photo of Trish Godman Trish Godman Labour

I guess that that was brief.

Photo of Colin Fox Colin Fox SSP

I am grateful for that intervention—it was almost longer than my speech—but it is a red herring. The Scottish legal complaints commission will contain lawyers. Legal briefs will be involved. Conduct complaints could be heard by a committee with a five-to-four majority, so there would be four lawyers. It is a red herring to say that no legal expertise would be close to hand.

No one is suggesting that every tuppenny-ha'penny complaint should be handled by the commission—far from it. As others have rightly said, it is about recourse whenever those complaints cannot be sorted at source.

The Justice 2 Committee received a great deal of evidence to show that there is huge unmet demand for legal advice in this country. As Gordon Jackson knows, the cost of accessing even fairly basic advice is prohibitive to many, therefore the bill's provisions for widening access to low-level advice and legal assistance are welcome. I draw the minister's attention to paragraph 233 of the stage 1 report, which highlights the need to commence immediately sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. That would mean more choice for consumers in legal representation. The fact that the provisions have not been commenced in 16 years is unacceptable. I hope that the Executive will honour its commitment to us to commence them in 2007.

The Scottish Socialist Party will support the bill at stage 1, even though we see it as only a half-hearted step in the right direction. In the long run, as Mr Swinney has said before, the fear is that the bill might fail to satisfy a public who in this day and age are more democratically demanding and more determined to have accountability and will not accept lawyers investigating lawyers any more than the police investigating the police or doctors investigating doctors. We will have to see.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party 4:17, 7 September 2006

We should not imagine that this issue of principle has arisen in recent times. Some 2,000 years ago, the Romans asked the question, "Quis custodiet ipsos custodes?"—who guards the guards? In essence, that is the principle that we are discussing today. As it has taken 2,000 years to get to where we are, it is likely that we will not fully resolve the issue.

Nonetheless, an effort has been made. It is an effort that we in the SNP commend, while continuing to be engaged in addressing the details. I particularly welcome Hugh Henry's comments in his opening remarks, which addressed many of the core concerns from practitioners that, like other constituency members, I have had in my in-tray. In particular, I received a letter in the past week from the dean of the faculty of procurators for Peterhead and Fraserburgh. He pointed out that in that area—which is a substantial part of my constituency, although not quite all of it—only two firms currently do civil legal aid cases and that any reduction in that number would be pretty catastrophic to the provision of services.

Like other members I have a constant stream, if not a flood, of people coming to my office because they have the fallacious idea that because I occasionally indulge in legal fisticuffs in the committee room with the Deputy Minister for Justice—who, like me, is not legally qualified—I can give them free legal advice. They are half right, as I do not charge for the privilege, but the other half is highly dubious, and I am always careful to point that out to them. Equally, I often find myself being asked to find someone a lawyer. Of course, that is dangerous. I am always careful to give people at least three options so that they make the choice. I do not tell them which one to go for, because sure as hell they would be back to blame me at the end of the day. The relationships between the legal professions and their clients are complex, and I hope that we will develop and improve them.

Like others, I recognise that not all complaints are well founded. For a period, my family lawyer was top of the list that Scotland Against Crooked Lawyers compiles. I did not understand that, but I felt disappointed as he moved down the list and was eventually relegated from it, because the list provided an excellent opportunity to tease a highly professional man whose integrity I utterly respect—as I do almost all the lawyers whom I meet. However, I have met lawyers who must be dealt with, and we need a process for that.

Like John Swinney, I am concerned about the difficulty of teasing out a complaint and stuffing it in one box rather than another. As members, we inevitably have constituents at our surgeries who say, at the end of what we think is the case that they are putting, "And another thing," so that the case moves into another domain. Alternatively, when we examine the needs of someone who is elderly and infirm, we find that they relate to council activity, Scottish Parliament care obligations and social security, which is Westminster's responsibility.

Problems do not fit into boxes just because we have created boxes, so for the customer—the person with the complaint—we must deal with their complaint in a way that does not make it a problem for them, whatever box they try to put it in. The customer must feel that their problem is being dealt with justly.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

Does the member agree that what matters is having the correct processes? If a complaint is about service from the police, it goes to the Independent Police Complaints Commission, but if the complaint relates to the police and criminal activity, it is right for it to go to the Procurator Fiscal Service. That should not confuse the public, because the system is correct.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Jeremy Purvis is correct. In paragraph 45 of its report, the Justice 2 Committee highlights the issues related to pursuing potential criminal activity by lawyers, so such considerations apply in the context of lawyers, too. The work is not easy; if it were, it would have been done a heck of a long time ago.

The minister's announcement on levies will be welcomed by my constituents and is extremely helpful. It is a tribute to him that he has responded so promptly to what the committee said.

I—and, I suspect, others—do not really understand how the right of third parties to complain will work. In my mind, that will be like a prisoner who jumps over a prison wall and is knocked down by a bus while running across the road suing the prison officer who failed to keep him in prison. We appear to be creating such indirectness. I hope that we are not making a rod for our own back.

Paragraph 28 of the Justice 2 Committee's report concerns some difficulties that sole practitioners might experience in dealing with complaints that come to their door in the first instance. I encourage the legal profession to think hard about that and the Executive to respond to any inputs from that source, because in rural areas such as that which I represent that is and will be an issue.

Photo of Charlie Gordon Charlie Gordon Labour 4:23, 7 September 2006

I welcome the bill's general principles and the proposed establishment of the Scottish legal complaints commission. Like other members, I amended my draft speech in response to the minister's speech and the publication of the answer to an unreached oral question from earlier this afternoon. I was not so happy to amend my draft because of that answer, but I will return to that.

Representations about the bill have been made to me by constituents who are practising solicitors and by solicitors who act for organisations in my constituency. The representations touch on the fear that the bill would lead to an increase in vexatious complaints generally and, as Stewart Stevenson just mentioned, especially by third parties, who might be aggrieved by the adversarial approach of solicitors who strive to represent their main clients' best interests.

The other concern that was expressed to me was that, given the increased financial risk that was associated with the original levy proposal, solicitors who act for community or voluntary organisations at discounted or nominal fees would withdraw from acting for such clients or impose full fees on them. I welcome the minister's stated intention to amend the levy provisions, but my concerns about the complaints from third parties remain and I would like to hear more about that issue.

However, I wish to focus on a particular type of complaint about some Scottish solicitors for which no independent means of seeking redress is currently available. Hundreds of Scots, including some of my constituents, complain that they were mis-sold endowment policies by solicitors in Scotland. As members will know, independent remedies for complaints about endowments that were mis-sold by the financial services industry are available via the Financial Ombudsman Service, which is a United Kingdom body that is accountable to another place. Complaints regarding the mis-selling of endowment policies that were sold by Scottish solicitors after 1 December 2001 can also be dealt with by the Financial Services Ombudsman.

Unfortunately, most of the complaints to which I refer relate to advice given by solicitors in Scotland prior to 1 December 2001. For such complainants, the only potential channel of redress is the not wholly independent Law Society of Scotland. Furthermore, complaints that are upheld by the Law Society of Scotland can result in a maximum compensation of £1,000. In contrast, awards of up to £100,000 are available under the UK system. Of course, the complainants to whom I refer could sue their solicitors on the grounds of incompetent advice, but that is a risky, lengthy and expensive business for people who are already out of pocket.

Solicitors are not mere creatures of statute. They are general agents who are engaged to act for a client's affairs generally, not merely in specific identified transactions. In considering the plight of the complainants whom I have mentioned, both statutory and common-law obligations must be considered. It follows—in my view, at least—that this Parliament must take responsibility for addressing the issue. However, in his now published answer to my question in section A of today's Business Bulletin, the minister states:

"It would be outside the legislative competence of the Scottish Parliament for the Legal Profession and Legal Aid (Scotland) Bill to seek to make such provision."

I accept the minister's answer as far as it goes but, as one who likes to solve people's problems if at all possible, I still ask whether there is anything that we can do without—this is the premise on which the minister's answer is founded—going down the dangerous road of retrospective legislation.

I believe that there is merit in the mechanism known as alternative dispute resolution, which is well established in, for example, the construction industry. I welcome the minister's view and I welcome the fact that dispute resolution has been mentioned in the context of the delegated powers of the new commission. I put forward this suggestion in the spirit of problem solving. I accept that we are best to steer clear of introducing retrospective legislation to address the grievances of this client group, but I think that it is still an open question whether we can provide a practical route to address the complaints of a group of people who, after all, are entitled to look to the Parliament for protection in what is an admittedly complex matter.

Photo of Trish Godman Trish Godman Labour

We now move to closing speeches.

Photo of Mike Pringle Mike Pringle Liberal Democrat 4:29, 7 September 2006

The stated aim of the bill is

"to put the users of legal services at the heart of regulatory arrangements".

The bill will ensure that the system is fully representative of the public interest and commands full public confidence. It will also make some initial improvements to the delivery of funded legal assistance.

The emphasis of the new arrangement is on securing a faster service that is more responsive to clients whose complaints cannot be resolved at source and on providing satisfactory redress in cases in which the commission upholds a complaint against a legal practitioner.

As we all know, the bill will establish a Scottish legal complaints commission. There can be no doubt that, at present, many of the consumers who make a complaint against a solicitor remain dissatisfied and believe that the complaint has not been handled fairly. Research shows that about 50 per cent of people who complain take that view. As Kenny MacAskill, Gordon Jackson and others have said, whether rightly or wrongly, there is a perception that the Law Society of Scotland is not being impartial. I agree with what the minister said about the process and the extremely professional manner in which the Law Society handles complaints. Clearly, the introduction of the SLCC will change that.

The Law Society is concerned that the SLCC will not be independent of the Scottish Executive, for a number of reasons. Its concerns relate to the appointment and removal of board members, the appointment of the chief executive and control of pay and conditions. I am pleased by what the minister said today on the issue, which will make the commission more independent. However, I would have said to lawyers and the Law Society that if at any time it appeared that Scottish ministers were interfering in the work of the SLCC, Parliament would have plenty to say about that. Clearly, that will no longer be necessary, but perhaps ministers should have had more faith in the Parliament.

The Law Society is also concerned about whether the bill is ECHR compliant, because although the SLCC will be able to make an award up to a new maximum of £20,000, there will be no right of appeal to an independent or impartial body or tribunal or to the court. A number of solicitors have written to me on the issue. One letter states:

"In other words, there is only an internal appeals procedure which seems to us to be unfair. The rules should provide for an appeal to the Court".

The issue needs to be clarified. Perhaps the minister will do that in her closing speech. I have a great deal of sympathy with the view that has been expressed. Although I assume that the Executive will make the bill ECHR compliant, the matter may require more scrutiny. I am not sure whether the Justice 2 Committee has considered it.

The current limit for compensation, which is £5,000, will be raised to £20,000. It has been suggested that that will lead some members of the legal profession to withdraw from some areas of legal practice. My colleague Jeremy Purvis went into that issue in detail and highlighted a matter that I am sure will be scrutinised closely at stage 2. However, I do not believe that what has been suggested will happen. Rather, the bill will make lawyers much more careful in the advice that they give and the actions that they take. It has been suggested that lawyers know whether they will take a case as soon as someone walks through the door. I hope that that is not true. Lawyers should be willing to look at the cases of all the people who come before them. Although £20,000 is the maximum, the vast majority of claims for compensation will be for a much smaller amount.

The funding of the SLCC has provoked much comment. I support the proposal that there should be a general levy on the profession and that, where a complaint is upheld, there should be a levy to cover the costs involved. However, I agreed entirely with the Justice 2 Committee that, when a complaint is not upheld, there should be no financial loss. Members from all parties have raised that issue today. I am glad that, unlike other members such as Mike Rumbles, who devoted a large part of their speeches to it, only a small part of my speech relates to the issue. It is a great shame that Hugh Henry, the Deputy Minister for Justice, is not present in the chamber, because there can be no doubt that, by committing himself today to lodge amendments, he will have made himself extremely popular with all lawyers in Scotland, although I am not sure that that was his intention.

I do not have time to discuss legal aid in detail but, like Jackie Baillie and others, I very much welcome the Executive's commitment in the bill to extend the legal aid scheme to non-legal practitioners, so that it will cover more social welfare law and issues.

I listened attentively to this afternoon's debate and do not believe that any other member mentioned the final issue that I want to raise. It is the issue of in-house lawyers, of which I was not previously aware in great detail. Such lawyers provide advice and representation only to their employers. I was surprised to discover that 27 per cent of the legal profession falls into that category. Should the bill have the unintended consequence that a sizeable proportion of in-house lawyers cease to hold practising certificates, that will significantly increase the levy that is payable by private practitioners and may ultimately threaten the viability of the Law Society, especially its ability to undertake non-mainstream functions, including such socially useful activities as providing comment on proposed legislation. I am sure that ministers would not want that.

The suggestion is that if in-house lawyers have to pay the full levy, some of them might not continue to maintain their practising certificate. That would not be desirable. The fact is that very few complaints are lodged against such lawyers. Having been lobbied on the issue, I think that it is perhaps one that the Executive or the committee might examine during stage 2. I would be interested to hear what might be said about it.

I am happy to support the general principles of the bill.

Photo of Bill Aitken Bill Aitken Conservative 4:35, 7 September 2006

As my colleague Margaret Mitchell indicated, we will support the principles of the bill today, but we do so with the caveat that we assume that we will eventually be presented with a bill in which the protection of clients is guaranteed and a high-quality and effective service to clients is also underwritten.

We recognise that there is a demand for change in the way in which the legal profession is governed, but it is essential that the procedures operate in an equitable and sensible manner.

It is important to stress, as other members have done, that despite some high-profile exceptions Scotland has been well served by its lawyers over many years. We have a legal system of which we can and should be proud. Although things might go awry from time to time, the effectiveness and integrity of our legal profession compares favourably with that in any other jurisdiction.

Mention was made of the meeting in Edinburgh yesterday at which the independence of the judiciary and of the legal profession was stressed. Mr Stevenson will recall that over the years I have been known to make some Zimbabwe analogies in the Parliament, but it would not be appropriate to accuse either Hugh Henry or Cathy Jamieson of applying the Mugabe tendency. However, the serious point is that there can be real difficulties when the Executive or Government is not totally detached—or detached as far as it can possibly be—from the judiciary and from those responsible for the law. That point must be stressed, and I am pleased that the Justice 2 Committee recognised it in its report. An arm's-length approach must be taken towards the setting up of the commission, which will not be without some difficulty.

Some years ago the Executive set up the Judicial Appointments Board in an effort, as it saw it, to make the judicial appointments process more transparent and independent of the Government. The personnel of that board is, of course, decided by the Government, so in that way its independence is compromised. It is difficult to see how the board could have been set up in any other way, or without at least some initial Executive input. However, it is essential to ensure that the Executive is as detached as possible from the process of selecting members of the commission. Hugh Henry recognised that in his speech.

We cannot have a situation in which appointments to the body are the sole preserve of the Executive. What happens down the road is a matter for the committee and for the Executive, but clearly a number of things could happen. I note the concession that the Lord President of the Court of Session will become involved, but perhaps the Parliament, consumer bodies, the Law Society and the Faculty of Advocates could also become involved. All those bodies could have an input. Perhaps we could look at the situation down south, where the Lord Chief Justice is certainly involved and the commissioner for public appointments has a big say in what happens. I put those ideas forward as constructive suggestions. It is absolutely essential that no person who has a principal input into the making of the appointments should be a member of the Executive or a senior civil servant. That is the only way in which the necessary and vital detachment can be achieved.

The Justice 2 Committee's excellent report highlights a number of difficulties, many of which have been dealt with by various members. I find it surprising that, prior to the stage 2 process, the Executive sought to increase the level of compensation to £20,000. As other members have pointed out, because of certain matters that might arise, such a move might have the obvious—and, I am sure, unintended—effect of inhibiting lawyers who act for charitable bodies.

Although I acknowledge the minister's comments about the more remote areas of the Scotland and feel that, in that respect, his proposals fit the bill, what will happen in cities where many solicitors act for charitable organisations, sometimes without charging a fee? If they face a potential liability of £20,000 following a complaint from a member of the organisation for which they are acting, will they be prepared to carry out the work to the same extent? The minister has to consider that point.

Photo of Trish Godman Trish Godman Labour

You must be brief, Mr Purvis. The member is in his final minute.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

I am most grateful, Presiding Officer, considering that I did not have time to take Mr Aitken's intervention.

Does Mr Aitken not realise that at the moment, if such cases go to court, the lawyers are open to similar liabilities? In that respect, there is no difference between the current situation and the provisions in the bill.

Photo of Bill Aitken Bill Aitken Conservative

In making its determination, the court would operate the polluter-pays principle. In fact, I sought to intervene on Mr Purvis to ask whether, in a case in which, to save money and a lot of hassle, an ex gratia payment was made, the Executive would contribute to that payment. After all, no liability would have been decided. The minister has to consider such issues.

Photo of Hugh Henry Hugh Henry Labour

Bill Aitken confuses a number of issues. If someone in the line of work that he has outlined behaves wrongly and is guilty of serious negligence, the person affected should have the right to seek compensation, no matter whether the lawyer took on that work out of the goodness of his heart. We would be talking about a serious act of omission.

Photo of Bill Aitken Bill Aitken Conservative

But a settlement might well be achieved without any liability in order to cut out correspondence and a lot of administration. In such a case, the practitioner will lose out.

Finally, I want to deal with the appeal process, which I do not think has been dealt with as fully as it might have been. I am not confident that the process is ECHR compliant. That said, it will not take too much to set it right—although, as the bill stands, doing so would require a judicial review, which would cost an awful lot more than £20,000.

I look forward to the amended bill coming before Parliament in due course.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party 4:42, 7 September 2006

First, I must welcome the Conservatives' conversion to the merits of the ECHR. It is wonderful to hear their sudden interest in that piece of legislation.

As far as the bill is concerned, it has been widely accepted that, in this day and age, the current set-up for overseeing lawyers is unsustainable. Frankly, a change to the system has been long overdue. However, the fundamental question, certainly for committee members, has been whether the bill goes far enough in dealing with the split between conduct and service complaints. One general debate in committee—and, indeed, in the chamber today—has centred on whether the Executive's interpretation of that split is correct or whether, as Colin Fox and John Swinney suggested, we should go the whole way and have a one-stop shop for those making complaints.

I have to say that, in weighing up the evidence in committee, I was attracted to the single-door policy. After all, many of those who gave evidence found it difficult to define the split clearly. For example, the Law Society of Scotland said that it was very easy to split service and conduct complaints, while the Faculty of Advocates said that it was impossible to do so. The fact that even lawyers could not agree on the matter illustrates the difficulty of the problem.

In the end, we had to take a reasoned approach. Many gave compelling evidence about the difference between conduct and service complaints. That was a reasoned argument that won the day for me, but only the future will tell us whether it is correct. The bottom line is that it is not possible to please all the people all the time and, no matter what we decide, some people will be unhappy with what we do.

The main focus has been on hybrid cases—many members have focused on that problem. Will such cases start out in one camp and move to the other? Nobody is sure where they will end up. Unfortunately, it is a bit of a suck-it-and-see situation and the commission and the Law Society will have to deal with it as they go along. That may not be as wonderfully clear as we would like to make it, but it is perhaps the best way forward. However, the commission's oversight over conduct cases will be important. John Swinney finished on that point, on which I agree with him. If the commission has such oversight and it is robust, which I hope it will be, that might quell some of the fears that some have expressed.

The point that Gordon Jackson made on the difference between conduct and service complaints was important. There is a range of issues that are clearly conduct issues and do not involve other parties. If a lawyer is involved in a criminal case because he was drink driving, singing certain songs or doing something else that was exclusively to do with conduct and nothing to do with clients, should an outside body such as the commission deal with that case? Such issues are definitely conduct issues. Therefore, it is clear that there is a split to be made and that is why I come down in support of the split.

Many members have talked about the independence of the legal profession and of the proposed complaints commission and about ECHR compliance. I am not a lawyer and I do not know whether the bill is ECHR compliant. I take the word of the minister and his legal advisers, who say that it is, but there are a number of questions on independence. The Executive has gone some of the way towards answering some of those questions. In particular, I welcome the introduction of fixed-term appointments and the creation of a partial role for the Lord President in removing commission members. That is certainly a step in the right direction towards dealing with some of the concerns. One of the biggest steps in the right direction is the removal of the powers of direction, which the minister mentioned in his speech. That must assuage many of the fears about the legal profession's independence.

I move on to the lack of a right to an external appeal. When he gave evidence, the minister talked about the process by which appeals could be made within sub-committees—if I can call them that—of the commission. I still have a great problem with that. It does not go far enough; there is a good and solid case for a right to an external appeal on the ground of fairness alone, whether or not the bill's proposals are ECHR compliant. I do not support the setting up of yet another tribunal or bureaucratic mechanism, so perhaps a right to an external appeal to the court is the answer. That will have to be considered at stage 2.

Not many members talked about costs or the Finance Committee's report, which is a good report that is at annex A of the Justice 2 Committee's report. I will give two quick quotations from it. Paragraph 22 the Finance Committee's report says:

"The Committee believes there should be a more effective power of strategic financial scrutiny over the costs of the Commission to avoid the creation of a needless bureaucracy", and paragraph 27 says that

"it would have been beneficial for both the Law Society and the Committee if the background to the Executive's assumptions had been provided in the Financial Memorandum."

The Executive has rather let itself down with the financial memorandum. It could have been much more robust and helpful and provided much more information. Many members have concerns about the size of the commission. I was surprised—as many members were—by the assumption of 55 staff and by the commission's overall size; it seems much bigger than we expected it to be.

There has been too much focus on the maximum compensation figure of £20,000. That figure is the maximum and, in the vast majority of cases, compensation will be much lower. I understand the Law Society's and lawyers' fears on that, but we should think about the fact that it is a maximum.

Oversight of the master policy and the guarantee fund by the SLCC is good and I welcome it. I also welcome the changes to civil legal aid that the minister announced today.

I do not have time to go into some of the other points that I have, but I am sure that many of them will come up at stage 2. I reiterate the point, which my colleague Kenny MacAskill made, that we will support the bill's general principles.

Photo of Cathy Jamieson Cathy Jamieson Labour 4:49, 7 September 2006

I thank the members who have spoken in the debate, those who have served on the Justice 2 Committee, which scrutinised the bill, and those whose work in the past helped us to get to this stage. We have had a constructive and useful discussion and I welcome members' general support for the principles of the bill.

The Executive was well aware that there were matters on which the professional legal bodies and members sought reassurance. I hope that members listened to Hugh Henry's opening speech, in which he laid out our proposed changes. With due respect to my colleagues, I am sorry that some of them have had to put lines through their speeches and cross out their various demands because we have solved them. I am sure that that will not deter any of them from claiming the credit when the news releases are issued later today. I look forward with great interest to the press cuttings that will come in over the next few days.

Like a number of members, I acknowledge that the majority of people involved in the legal profession provide a satisfactory service. We only ever hear about the things that go wrong. I have never had anyone come along to my surgery and say, "I've had a wonderful service from my lawyer and I want to let you know about it."

Photo of Cathy Jamieson Cathy Jamieson Labour

Stewart Stevenson, as always, has a classic case of that having happened to him.

On a serious note, I recognise the work done by the Law Society of Scotland. We have not always agreed and there have been some fairly robust exchanges, even in getting this far, but the Law Society assisted us in getting information directly from people who felt that they had something to contribute because of their experiences.

I will deal briefly with a number of the key issues that have been raised. Like Stewart Maxwell, I welcome the conversion of the Tories to the ECHR cause, but I hope that every member who has argued for the independence not just of the legal profession but of the judiciary remembers that when they are writing to me to complain about decisions that individual members of the judiciary have taken.

Photo of Cathy Jamieson Cathy Jamieson Labour

I will scan my correspondence to ensure that that is correct.

Photo of Margaret Mitchell Margaret Mitchell Conservative

There is a difference between the voluntary and very good record that we had previous to the incorporation of the ECHR into Scots law and the blanket coverage of the ECHR, which has had unintended and unsatisfactory consequences.

Photo of Cathy Jamieson Cathy Jamieson Labour

Allow me to move on to whether the bill is compatible with the ECHR. The Executive believes that it is. In practical terms, it was certified as such and the Presiding Officer took that view. We have taken a view because of information based on case law that where a body is carrying out a specialised regulatory function, all that is required is what is seen to be a broadly fair and reasonable procedure. We see the consumer complaints against lawyers falling into that category.

We have given consideration to a number of points that were raised throughout stage 1 and in the chamber today. I remind members, in case they missed Hugh Henry's points—or perhaps some had not had time to put lines through their speeches—that we intend to lodge amendments at stage 2 that will give commission members fixed terms of at least four years, or five after the first round of appointments; restrict reappointments to once only, after a gap of at least three years; require the Lord President's agreement to the removal of commission members; remove ministers' general direction-making powers in relation to the commission; and ensure that binding decisions on the merits of complaints are taken only by commission members. Those proposals are an important step forward and I am glad that they have been accepted.

I do not accept that the bill threatens the independence of the legal profession. What it is intended to do—and what I believe it does—is to provide a system for dealing with consumer complaints that is independent of the profession. It should not be seen by the profession as a threat, for exactly the reasons that I outlined earlier, because the majority of lawyers will continue, as they have done, to give a perfectly satisfactory service to their clients.

The bill will help to redress the balance and to address some of the public perception problems that exist by improving the standing of lawyers and giving their clients the confidence of knowing that if they have a problem with the service that they receive, the matter will be investigated properly and action may be taken as a result.

There has been thoughtful discussion of how the distinction between service complaints and conduct complaints should be dealt with, which I am sure will continue during the Justice 2 Committee's deliberations at stage 2. Having thought long and hard about the issue, we believe that the proposed split represents the best way forward, although we recognise that there are difficult issues to resolve—for example, the public might not always be able to understand that distinction immediately. The professional disciplinary tribunals already perform some of those functions and we believe that that should continue to be the case.

However, it is important that protocols are drawn up. It is not the case, as has been suggested, that we should just leave people to get on with things; there is more work to be done. I remind members that the new commission would probably have jurisdiction over about 80 per cent of complaints because only 20 per cent of the complaints that the Law Society receives relate purely to conduct matters.

Photo of John Swinney John Swinney Scottish National Party

In evidence to the Justice 2 Committee, the convener of the Scottish Solicitors Disciplinary Tribunal said:

"if we try to define misconduct we will fail."—[Official Report, Justice 2 Committee, 16 May 2006; c 2426.]

If the people in the tribunal tell us how difficult it is to define misconduct, surely that is a compelling argument for ensuring that the commission deals with conduct and service complaints together.

Photo of Cathy Jamieson Cathy Jamieson Labour

We also heard powerful arguments from people—including members of Mr Swinney's party—who have thought the matter through and who believe that the proposed split is correct. As Gordon Jackson informed us, there are examples of other professions in which the ability exists to distinguish between situations in which the level of service has been a problem and those that should be dealt with by professional disciplinary bodies. I am sure that the matter will continue to be discussed during the bill's passage.

I want to move on to some specific points, the first of which is case-by-case advice and grant payments. We know that some voluntary sector organisations have expressed concern that a system of signing up for legal aid funding on a case-by-case basis would pose problems for them. As Hugh Henry outlined, we will lodge stage 2 amendments that are designed to give the Scottish Legal Aid Board a strategic grant-funding power. That will complement the case-by-case funding and provide alternative routes that some providers will find attractive. Such an arrangement will help us to improve the planned delivery of advice services so that they match unmet needs. [Interruption.]

Photo of Trish Godman Trish Godman Labour

Order. Conversation is building up to a disruptive level. I would appreciate it if members would listen to the remainder of the minister's speech in silence.

Photo of Cathy Jamieson Cathy Jamieson Labour

Thank you very much, Presiding Officer.

Mike Pringle suggested that in-house lawyers might decide not to continue to hold practising certificates. It is our view that lawyers who do not require practising certificates could opt out at the moment, but choose not to do so. They choose to pay for the benefits of having that status and we do not believe that that would necessarily change. It is obviously important that the commission could balance the levies to take account of that.

I turn to an issue that Charlie Gordon raised, about which he feels very strongly and on which he has represented his constituents well. Mr Gordon acknowledged that, as Hugh Henry's response to his question pointed out, that issue is reserved to Westminster. It is one on which my Westminster colleague, Sandra Osborne MP, has been extremely forthright and, in seeking a way forward, perhaps Mr Gordon could enlist the services of his Westminster colleague to pursue matters through the Westminster Parliament. It is not simply that any legislation would have to be retrospective; it is that the matter could not be dealt with by the Scottish Parliament, but would require to be addressed at Westminster.

I see that I am probably running out of time, Presiding Officer. I will wind up. I thank members for their comments this afternoon. I am particularly pleased about the welcome that was given to Hugh Henry's announcement on the public defender solicitors. We will ensure that we have a public network of practitioners who are able to deal with civil law in areas where there is unmet demand.

In terms of the provisions that we are making, it has never been the case that we simply decided to have change for change's sake. That is not what the bill is about. We want to make real improvements and create real opportunities for trust to be rebuilt. I hope that the bill will give consumers the confidence to complain where that is the right thing to do; lawyers the incentive to deal with their complaints at source; and the commission the means to adjudicate fairly and quickly when direct mediation has broken down. We look forward to continuing to work with the Justice 2 Committee to improve the bill as it goes forward at stage 2.