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Schedule 1 — The Scottish Legal Complaints Commission

Legal Profession and Legal Aid (Scotland) Bill: Stage 3 – in the Scottish Parliament at 4:15 pm on 14th December 2006.

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Photo of Murray Tosh Murray Tosh Conservative 4:15 pm, 14th December 2006

Group 30 is on the Scottish legal complaints commission: appointment of members. Amendment 175, in the name of David Davidson, is grouped with amendments 176 to 180.

Photo of David Davidson David Davidson Conservative

The independence of the commission is crucial. [ Interruption. ] I apologise, Presiding Officer—I have now turned off my phone.

Many members have difficulties with questions relating to the commission's independence. They and people outside the Parliament are greatly concerned about how independent an organisation whose members are appointed by ministers will be. The minister and her colleagues have moved some way by proposing the involvement of the Lord President in dealing with removals—that struck me as the beginning of a move towards a sensible solution to the problem—and she appears to be moving a little further so that the Lord President could even be involved on a consultative basis.

The committee took a lot of evidence on the commission's independence. Many people called for the commission to be completely independent of legal practitioners and ministers. Will the minister go all the way and make the commission independent, or does she want to settle for the Lord President being involved? I am not sure how far she is prepared to give way on the matter, but an important issue is involved. People outside the Parliament and people who do not practise the law should understand that the commission, which is supposed to act on behalf of members of the public, is independent.

I move amendment 175.

Photo of Johann Lamont Johann Lamont Labour

Amendment 175 would require commission members to be appointed by the Lord President of the Court of Session rather than by the Scottish ministers. Amendments 177, 178 and 179 are consequential on amendment 175.

We still think that it is essential for appointments to the commission to be made by ministers and that that is entirely compatible with the European convention on human rights. Our proposals are coherent and consistent with our policy position—we do not want a halfway house, which David Davidson perhaps implied that we wanted.

A wide range of qualities will have to be taken into account in appointing commission members, such as the person's experience of complaints handling and consumer awareness. Commission members will also have an important strategic management role. The range of qualities that will be needed will be best assessed in a selection process that is carried out under the umbrella of the Scottish ministers. I repeat that the appointments will be supervised by the commissioner for public appointments in Scotland and will not be political appointments. Therefore, I invite David Davidson not to press his amendments.

However, I have been persuaded that the Lord President's being given a consultative role would provide reassurance to those who still have concerns about the appointments process and that that will help to reinforce the fact that members of the new commission will have to be able to adjudicate in an independent and impartial way. Those judicial qualities will be assessed as part of the appointments process. Amendment 176 is therefore a small but significant amendment, which will require ministers to consult the Lord President before appointing members of the commission.

Paragraph 5(1A) of schedule 1 states that where the expression "the Lord President" is used, the Lord President of the Court of Session is meant. That clarification has been provided in amendment 176, the text of which will appear earlier in the schedule. The words to that effect in paragraph 5(1A) of schedule 1 are therefore no longer necessary and will be removed by amendment 180.

Photo of Bill Aitken Bill Aitken Conservative

I fully accept that convention rights will be complied with, but I am not entirely satisfied that what has been proposed is right. The minister recognises that people are sensitive about the issue. I acknowledge that she has come some way along the road with us and also that a chicken-and-egg argument is involved, as the commission cannot materialise out of the ether—it must come from somewhere. However, we should bear it in mind that judicial independence is one of the keystones of the Scottish legal system and therefore we must be exceptionally careful about what we are doing.

The Executive must be detached from the commission and the setting up of that commission as far as is humanly possible or else there will be accusations of unfairness. I am perfectly satisfied that what the Executive seeks to do is not going along those lines. However, it must not only be fair, but it must be seen to be fair, and the detachment that is necessary is met with in Mr Davidson's amendments.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

Does not Mr Aitken acknowledge that the minister's amendments, which I hope that all members will support, make the bill much more consistent with the Scottish Solicitors Disciplinary Tribunal? Ministers are involved in the appointment of members to that tribunal, and that does not seem to give him much concern.

Photo of Bill Aitken Bill Aitken Conservative

I recognise that what the minister has done is helpful, but I do not think that the argument about the Scottish Solicitors Disciplinary Tribunal is consistent. A degree of sensitivity attaches to appointments to the commission that does not apply to the tribunal. Even at this late stage, I look to the minister and recommend to her that David Davidson's amendment 175 be accepted.

Photo of David Davidson David Davidson Conservative

I must simply say to Mr Purvis that we are dealing with the bill that is before us today. I do not know why he is bringing in an argument about something else.

Photo of David Davidson David Davidson Conservative

I do not have time. Quite simply, I intend to press amendment 175.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 175 be agreed to. Are we agreed?

Members:

No.

Division number 20

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

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 13, Against 74, Abstentions 0.

Amendment 175 disagreed to.

Amendment 176 moved—[Johann Lamont]—and agreed to.

Amendments 177 to 179 not moved.

Amendment 180 moved—[Johann Lamont]—and agreed to.

Photo of Murray Tosh Murray Tosh Conservative

Group 31 is on the Scottish legal complaints commission: delegation of functions. Amendment 181, in the name of David Davidson, is grouped with amendments 182, 183 and 183A. I draw members' attention to the pre-emption information that is shown on the groupings list.

Photo of David Davidson David Davidson Conservative

Amendment 181 is a paving amendment for amendment 183. The argument for amendment 183 is that it provides an opportunity to set up a determination committee for the new commission. According to the bill, as currently drafted, the functions of the commission can be exercised by any of the persons mentioned in paragraph 13(1) of schedule 1, including a member of staff of the SLCC. The only exception is for the function of determining whether the complaint is frivolous or vexatious, which can be exercised only by one of its committees or by an SLCC member. However, those are all essential and important functions relating to a complaint, and they should therefore be made by a determination committee.

In considering this part of the bill, we have a choice between the minister's amendment 182 and my more concise amendment 183, with amendment 181, which would, if agreed to, pre-empt amendment 182.

I move amendment 181.

Photo of Johann Lamont Johann Lamont Labour 4:30 pm, 14th December 2006

Amendment 182 follows on from amendments that were made to the bill at stage 2, whereby complaints are to be screened out and not investigated by the commission if they are deemed to be

"frivolous, vexatious or totally without merit" rather than simply "frivolous or vexatious". Paragraph 13(1A)(a) of schedule 1 contains a reference to "frivolous or vexatious" that should also be extended to include the new criterion of being "totally without merit".

Amendments 181, 183 and 183A would require that only a determination committee of commission members could be delegated by the commission to make decisions on whether a complaint is frivolous, vexatious or totally without merit, whether a complaint has been made timeously or prematurely, whether a complaint constitutes a conduct complaint or a services complaint, and whether the complaint has been made by an eligible complainer.

At present, the bill provides that the first of those decisions—whether a complaint is frivolous or vexatious—may be delegated to any committee of the commission or to a commission member. The other decisions could currently be more widely delegated and could be taken by commission staff. I believe that the existing mechanisms provide adequate safeguards. It is in no one's best interests for the debate on whether a complaint is frivolous, vexatious or totally without merit to be prolonged. Some exercise of judgement will be involved in such decisions, but the correct decision will generally be obvious to a disinterested person. Although the decision will have an important impact on the complainer, delegation to a commission member is reasonable.

The issue whether a complaint has been made timeously or prematurely will largely be resolved by applying the commission's own rules. In deciding whether a complaint is a conduct complaint or a services complaint, the commission will apply criteria that have been developed and applied by the Law Society over many years along with precedents that the commission has set internally. The issue whether a complaint has been made by an eligible person should be fairly straightforward, given that anyone is permitted to make a conduct complaint whereas services complaints may be made by anyone who has been directly affected by the standard of service plus a list of defined public bodies and office holders. The task of deciding the category of the complaint can safely be delegated to competent members of staff.

Consideration needs to be given to ensuring that commission members are not overwhelmed and that staff are able to act to progress cases through the system. For example, every complaint that comes through the commission's doors must be categorised as either a services complaint or a conduct complaint. If that task had to be performed by determination committees, the process of dealing with complaints could grind to a halt. Section 11 permits a complaint to be recategorised at a later stage if it appears that the original classification was wrong. We should also not forget that, if a statutory test that is contained in the bill has been misunderstood or wrongly applied, judicial review procedure will be available to correct the error.

Photo of David Davidson David Davidson Conservative

I have listened to what the minister said, but I will press amendment 181.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 181 be agreed to. Are we agreed?

Members:

No.

Division number 21

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

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 11, Against 86, Abstentions 0.

Amendment 181 disagreed to.

[Interruption.]

Photo of Murray Tosh Murray Tosh Conservative

Members might find that, if they switch off their mobile phones altogether, the chances are that they will not go off a second time.

Amendment 182 moved—[Johann Lamont]—and agreed to.

Amendment 183 not moved.

Photo of Murray Tosh Murray Tosh Conservative

Group 32 is on the accounts and reports of the proposed Scottish legal complaints commission. Amendment 184, in the name of David Davidson, is grouped with amendments 185 to 188. I draw members' attention to the pre-emption information that is given in the groupings paper.

Photo of David Davidson David Davidson Conservative

With amendment 184, I seek that accounts and reports would come to Parliament and not to ministers. That would add to the atmosphere of independence and accountability that we hope will be generated around the proposed commission. Apart from some set-up costs, the Executive is not funding the commission; it will therefore not be taxpayers who fund it, but legal practitioners. Parliament would be best placed to receive reports, so that we can scrutinise them independently on behalf of the public.

Amendment 187 would qualify the minister's amendments in the group. Amendments 186 and 188 overlap with my amendments. so I suggest that, as part of the new and very enjoyable partnership that has developed in the chamber today as we have worked on the bill, the minister accept my amendments and not move her own. Parliament must take precedence over the Executive when the Executive is not providing the funding: Parliament represents the people.

I move amendment 184.

Photo of Johann Lamont Johann Lamont Labour

It is always advisable for members not to push their luck.

Ministers are committed to ensuring the transparency of the proposed commission's annual accounting and reporting processes. Amendments 185 and 186 relate to the commission's annual statement of accounts. Paragraph 15(2) of schedule 1 requires the Scottish ministers to send it to the Auditor General for Scotland for auditing. Amendment 185 will tighten and clarify that duty by requiring that it be performed "as soon as practicable". Amendment 186 will add a new requirement for the Scottish Ministers then to lay the audited statement before Parliament "as soon as practicable".

Paragraph 16(4) of schedule 1 requires the Scottish Ministers to lay a copy of the commission's annual report before the Scottish Parliament. Amendment 188 stipulates that this is to be done "as soon as practicable", in line with amendments 185 and 186.

David Davidson has lodged alternative amendments. Amendment 184 would require the commission to send its annual statement of accounts to Parliament rather than to ministers, but ministers would not be able to send the statement to the Auditor General for auditing or to lay the audited statement before Parliament, if the statement has not been sent to us in the first place.

Amendment 187 is an alternative to amendment 186. It uses the wording

"as soon as is reasonably practicable" rather than "as soon as practicable". I do not think that this would make any difference in practice to the way in which the duty will be interpreted. I am content that ministers would be more than happy to perform the duty "as soon as practicable".

I invite David Davidson not to press amendment 184 and not to move amendment 187, and I urge members to support amendment 185.

Photo of David Davidson David Davidson Conservative

The minister and I simply do not agree. I will press amendment 184.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 184 be agreed to. Are we agreed?

Members:

No.

Division number 22

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

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 14, Against 84, Abstentions 0.

Amendment 184 disagreed to.

Amendments 185 and 186 moved—[Johann Lamont]—and agreed to.

Amendment 187 not moved.

Amendment 188 moved—[Johann Lamont]—and agreed to.