Group 11 is on the duty to comply with the requirement to provide information. Amendment 39, in the name of David Davidson, is grouped with amendments 40, 71 and 80.

Amendments 39, 40, 71 and 80 seek to provide clarity on the new duty by removing any liability that might result under the confidentiality rules. The amendments are required as a result of the poor drafting of the bill. If the amendments are not accepted, an order will be required to remedy the matter if the requirement to provide documents flies in the face of the rules that the professional bodies have on confidentiality. All the amendments in the group are about that issue.

I move amendment 39.

The effect of amendments 39, 40, 71 and 80 would be radically to change the carefully structured provisions of the bill in terms of which the commission and the professional bodies can obtain documents and evidence.

At present, the bill provides that such bodies can require production of documents and other evidence. If the person who is put under such a requirement resists on the grounds of confidentiality or legal privilege, it will be necessary for the commission or professional bodies to go to court to seek an order. A court will not grant an order that breaches legal privilege and, in the public interest, it will try where possible to preserve other obligations of confidentiality.

The amendments would mean that all persons who were served with a requirement to provide documents would be put under an immediate statutory duty to comply with the requirement. That would result in a complete override of legal privilege and confidentiality. However, legal privilege is an automatic right that not even the courts can overrule without explicit authority.

At stage 2, we amended schedule 3 to the bill to require the commission to make provision in its rules to prevent investigation of a complaint unless the complainer has waived any relevant rights of confidentiality. Accordingly, the whole framework of legal privilege is protected and respected in the bill. Even the complainer's rights are preserved unless he expressly waives them.

The bill should enable the commission and professional bodies to obtain most of the documents that they need without making inroads into rights of confidentiality or legal professional privilege, which are considered by the Executive to be of fundamental importance. Both the commission and the professional bodies will need to go to court if persons do not hand over documents or evidence that is required from them. In such cases, the legal machinery in schedule 2, which is based on provisions in the Solicitors (Scotland) Act 1980, would apply. In other words, the bill preserves the status quo on legal privilege and it adopts a procedure for going to court that is well tried and which works.

The amendments would radically alter the status quo in the wrong direction and against the public interest. On that basis, and in the interest of protecting client confidentiality, I oppose all the amendments in the group.

I am not totally convinced that the minister has responded fully to the issues that I raised. Did she say that, in some situations, there will be ways to get round the confidentiality rules that apply to legal professionals without altering the status quo? I am not convinced by her argument. It is possible that I misheard what she said, but I do not think she said that it will be all right to change the rules on confidentiality.

Unless the minister gives me the impression that I have missed something, I am afraid that I will be forced to press the amendment.

The question is, that amendment 39 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 8

For: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Fabiani, Linda, Fox, Colin, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Johnstone, Alex, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, Petrie, Dave, Robison, Shona, Scott, John, Stevenson, Stewart, Swinney, Mr John, Turner, Dr Jean, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra
Against: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Sheridan, Tommy, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Swinburne, John, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

The result of the division is: For 34, Against 71, Abstentions 0.

Amendment 39 disagreed to.