Section 29 — Monitoring effectiveness of guarantee funds etc.

Legal Profession and Legal Aid (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:19 pm on 14th December 2006.

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Photo of Trish Godman Trish Godman Labour 3:19 pm, 14th December 2006

Group 19 is on monitoring the effectiveness of professional indemnity arrangements. Amendment 6, in the name of John Swinney, is the only amendment in the group.

Photo of John Swinney John Swinney Scottish National Party

Amendment 6 is fairly straightforward and is designed to clarify the information that the commission will have access to in relation to the powers that are set out for it in section 29. The Government has brought forward a range of sensible proposals in section 29 for the commission to monitor the effectiveness of the Scottish solicitors guarantee fund, the professional indemnity arrangements and any funds or arrangements that are maintained by relevant professional organisations. However, it is unclear what the Executive means by "monitor the effectiveness of" and what information the commission may have access to to enable it to fulfil that purpose. Amendment 6 is designed to ensure that the commission is able to review the terms of any contracts or other documents that are associated with the professional indemnity arrangements.

The professional indemnity arrangements are commonly referred to as the master policy that provides security and insurance in relation to a variety of legal profession activities. The Law Society of Scotland has an obligation under the Solicitors (Scotland) Act 1980 to promote the interests of the public in relation to the profession. It is important that there is transparency about the documents that underpin that relationship. Amendment 6 is designed to clarify exactly what information the commission will have the power to access so that we can be satisfied that it can fully pursue the power that is allocated to it in section 29 to monitor the effectiveness of the professional indemnity arrangements and other matters.

I move amendment 6.

Photo of David Davidson David Davidson Conservative

Mr Swinney comes from the insurance sector, and I would have thought that a contract between an individual party and an insurer comes under commercial confidentiality, but perhaps Mr Swinney can enlighten me when he sums up.

Photo of Johann Lamont Johann Lamont Labour

I appreciate that the aim of amendment 6 is to help the commission to fulfil its responsibility under section 29 to monitor the effectiveness of professional indemnity arrangements. Such arrangements are an important and integral part of the overall mechanisms for providing redress for clients who suffer as a result of poor service from a legal practitioner. However, our preference is to rely on the willingness of the professional bodies to co-operate with the commission when it seeks to carry out its duties under section 29. It will be very much in their interest to do so.

If the commission were to report a lack of co-operation on the part of the professional bodies, it would be open to the Scottish ministers to place before the Parliament regulations under section 31 to enhance the commission's monitoring powers. Such regulations could set out the procedures for the commission to follow in obtaining documentation and provide enforcement powers for that purpose. I note that amendment 6 does not deal with how confidential commercial documents would be treated.

We propose to see how well section 29 works in practice and to review its operation in the light of experience. As I indicated, section 31 will allow us to improve its operation if required. At this point, I do not support amendment 6, for the reasons that I have given.

Photo of John Swinney John Swinney Scottish National Party

If ever I heard an argument for saving parliamentary time, it is the minister's point that, at some point in the future, if the arrangements are not working properly, the Government will lay regulations. There will be a problem with the disclosure of information, and for the commission to be able to fulfil its function of monitoring the effectiveness of the arrangements specified in section 29, it is essential that it has access to the quality of information that will enable it to make its judgments.

The Parliament regularly debates a number of questions about the ability of individuals and organisations to access information to satisfy themselves that issues are being dealt with properly. We can all think of examples. We should not wait until there is a problem; we should ensure that the commission is given full and effective powers to fulfil the responsibilities that the Parliament allocates to it under section 29. That is a key requirement.

Mr Davidson asked about commercially confidential information. I am concerned to ensure that the excuse of commercial confidentiality is not used to avoid proper scrutiny. What is the point of the Parliament passing a bill that gives the commission the power to monitor the effectiveness of arrangements without giving it the tools to enable it to do so? Amendment 6 is a necessary addition to the bill and would ensure that we pass a workable, robust and reliable bill that enables the commission to do its job properly.

I press amendment 6.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 6 be agreed to. Are we agreed?

Members:

No.

Division number 16

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

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 30, Against 71, Abstentions 0.

Amendment 6 disagreed to.