Chamber
Plenary, 14 Dec 2006
14 Dec 2006 · S2 · Plenary
Item of business
Legal Profession and Legal Aid (Scotland) Bill: Stage 3
I am grateful for David Davidson's kindness.
Amendment 9 would remove the reference to any provision on rules made by the commission under section 23(1) as to a person's eligibility to make complaints. We appreciate Mr Davidson's concern in that regard and can assure him that the intention of the provision is directed only at the provision in paragraph 1(a)(ii) of schedule 3, under which rules may determine
"the eligibility of persons to make … complaints on behalf of other persons (whether living or not)".
There is no intention to give the commission power to set other eligibility criteria that are not on the face of the bill. Having given that assurance, I hope that Mr Davidson will withdraw amendment 9.
In our view, amendment 11 is unnecessary. It reflects an unfounded concern that the provisions of section 2A might have the effect of causing the professional bodies to lose some of their responsibility for the professional conduct of their members. Accordingly, it seeks to limit the working of section 2A to service complaints and to exclude conduct complaints.
Section 2A will not preclude the findings or orders of another scheme being used as the basis for a conduct complaint. It is designed to avoid overlap by providing that, when appropriate, the investigation of a complaint that relates to activities that are covered by a specified regulatory scheme is first carried out under that scheme. That does not preclude the Law Society of Scotland prosecuting if it feels that the public interest demands that further sanctions are necessary. For example, if the Financial Ombudsman Service investigates a complaint and finds that a Scottish solicitor has been responsible for serious financial malpractice, it will be possible for the Law Society to prosecute that solicitor for professional misconduct before the Scottish Solicitors Discipline Tribunal on the basis of the previous finding and any other relevant evidence adduced. If the charges are upheld, the tribunal will be able to impose its own disciplinary sanction to protect the public, such as suspending or debarring the solicitor.
Amendments 12 to 14 are also unnecessary, because the bill already provides that "any person" may make a conduct complaint, so the issue of eligibility simply does not arise in relation to conduct complaints. It would be nonsense to require the commission to determine formally that a conduct complaint had been made by "any person", who was already, therefore, eligible.
As regards service complaints, there is no eligibility issue when the complaint is made by one of the public office holders or bodies that are listed in section 2(1A)(b) of the bill. The only eligibility issue on service complaints is whether the person
"appears to the Commission to have been directly affected by the suggested inadequate professional services".
In our view, to make that decision the subject of a formal determination would be unduly bureaucratic. When there is any doubt about whether the person has been affected directly by the alleged inadequate professional services, we would expect the commission to investigate the complaint to get to the truth of the matter. If that investigation makes it clear that the complainer has not been affected directly by the services in question, the commission will be able to dismiss the complaint without further ado. Indeed, it would not be competent for it to continue to deal with an ineligible complaint.
With regard to amendments 15, 16, 19, 21, 36 and 37, section 34 of the bill already defines the term "complainer" as
"the person who makes the complaint and, where the complaint is made by the person on behalf of another person, includes that other person".
That means that those six amendments are superfluous, so we urge Mr Davidson not to move them.
Amendment 9 would remove the reference to any provision on rules made by the commission under section 23(1) as to a person's eligibility to make complaints. We appreciate Mr Davidson's concern in that regard and can assure him that the intention of the provision is directed only at the provision in paragraph 1(a)(ii) of schedule 3, under which rules may determine
"the eligibility of persons to make … complaints on behalf of other persons (whether living or not)".
There is no intention to give the commission power to set other eligibility criteria that are not on the face of the bill. Having given that assurance, I hope that Mr Davidson will withdraw amendment 9.
In our view, amendment 11 is unnecessary. It reflects an unfounded concern that the provisions of section 2A might have the effect of causing the professional bodies to lose some of their responsibility for the professional conduct of their members. Accordingly, it seeks to limit the working of section 2A to service complaints and to exclude conduct complaints.
Section 2A will not preclude the findings or orders of another scheme being used as the basis for a conduct complaint. It is designed to avoid overlap by providing that, when appropriate, the investigation of a complaint that relates to activities that are covered by a specified regulatory scheme is first carried out under that scheme. That does not preclude the Law Society of Scotland prosecuting if it feels that the public interest demands that further sanctions are necessary. For example, if the Financial Ombudsman Service investigates a complaint and finds that a Scottish solicitor has been responsible for serious financial malpractice, it will be possible for the Law Society to prosecute that solicitor for professional misconduct before the Scottish Solicitors Discipline Tribunal on the basis of the previous finding and any other relevant evidence adduced. If the charges are upheld, the tribunal will be able to impose its own disciplinary sanction to protect the public, such as suspending or debarring the solicitor.
Amendments 12 to 14 are also unnecessary, because the bill already provides that "any person" may make a conduct complaint, so the issue of eligibility simply does not arise in relation to conduct complaints. It would be nonsense to require the commission to determine formally that a conduct complaint had been made by "any person", who was already, therefore, eligible.
As regards service complaints, there is no eligibility issue when the complaint is made by one of the public office holders or bodies that are listed in section 2(1A)(b) of the bill. The only eligibility issue on service complaints is whether the person
"appears to the Commission to have been directly affected by the suggested inadequate professional services".
In our view, to make that decision the subject of a formal determination would be unduly bureaucratic. When there is any doubt about whether the person has been affected directly by the alleged inadequate professional services, we would expect the commission to investigate the complaint to get to the truth of the matter. If that investigation makes it clear that the complainer has not been affected directly by the services in question, the commission will be able to dismiss the complaint without further ado. Indeed, it would not be competent for it to continue to deal with an ineligible complaint.
With regard to amendments 15, 16, 19, 21, 36 and 37, section 34 of the bill already defines the term "complainer" as
"the person who makes the complaint and, where the complaint is made by the person on behalf of another person, includes that other person".
That means that those six amendments are superfluous, so we urge Mr Davidson not to move them.
In the same item of business
The Presiding Officer (Mr George Reid):
NPA
The next item of business is stage 3 proceedings on the Legal Profession and Legal Aid (Scotland) Bill.In dealing with amendments, members should have the bi...
Section 2—Receipt of complaints: preliminary steps
The Presiding Officer:
NPA
Group 1 is on circumstances in which a conduct complaint about conveyancing and executry practitioners may be made. Amendment 8, in the name of David Davidso...
Mr David Davidson (North East Scotland) (Con):
Con
Amendment 8 seeks to remove section 2(1)(a)(ii), which I believe to be unnecessary, as conveyancing and executry practitioners are already covered by the rul...
The Deputy Minister for Justice (Johann Lamont):
Lab
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which covers the position of conveyancing and executry practitioners, lists conviction of a cr...
Mr Davidson:
Con
I acknowledge the minister's comments. However, I have been advised that conveyancing and executry practitioners would be covered by section 2(1)(a)(i) and w...
The Presiding Officer:
NPA
The question is, that amendment 8 be agreed to. Are we agreed?
Members:
No.
The Presiding Officer:
NPA
There will be a division. I suspend the meeting for five minutes.
Meeting suspended.
On resuming—
The Presiding Officer:
NPA
We will proceed with the division.
ForAdam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Brownlee, Derek (South of Scotland) (Con) Crawford, Bruce (Mid Scotland and Fife) (SNP) Da...
The Presiding Officer:
NPA
The result of the division is: For 32, Against 61, Abstentions 0.
Amendment 8 disagreed to.
The Presiding Officer:
NPA
Group 2 is on determination of eligibility to make a complaint. Amendment 9, in the name of David Davidson, is grouped with amendments 11 to 16, 19, 21, 36 a...
Mr Davidson:
Con
As the Presiding Officer has pointed out, this group of amendments deals with determination of eligibility to make a complaint. In lodging amendment 11, I wa...
The Presiding Officer:
NPA
I clarify that you have moved only amendment 9 at this stage.
Johann Lamont:
Lab
I am grateful for David Davidson's kindness.Amendment 9 would remove the reference to any provision on rules made by the commission under section 23(1) as to...
Mr Davidson:
Con
As I said earlier, I seek guidance from the minister about what is intended because members of the public, among others, have expressed doubts about what the...
Johann Lamont:
Lab
I hear what Mr Davidson says and I have argued our position on the amendment. That should be sufficient.
Amendment 9, by agreement, withdrawn.
The Presiding Officer:
NPA
Group 3 is on persons entitled to make complaint etc. Amendment 10, in the name of David Davidson, is grouped with amendment 211.
Mr Davidson:
Con
Amendments 10 and 211 seek to add sheriffs and tribunal chairs to the list of judges in the bill to ensure consistency.I move amendment 10.
Johann Lamont:
Lab
Amendment 10 seeks to add chairmen of tribunals to the list of public office holders who can make a service complaint to the commission, but it does not defi...
Mr Davidson:
Con
I thank the minister for providing clarity. Now we know that our money goes on good legal advice to our ministers. I accept what she says, and because she ha...
Amendment 10, by agreement, withdrawn.
Section 2A—Existence of specified regulatory scheme
Amendments 11 to 13 not moved.
After section 4