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Chamber

Plenary, 14 Dec 2006

14 Dec 2006 · S2 · Plenary

Item of business

Legal Profession and Legal Aid (Scotland) Bill: Stage 3

Lamont, Johann Lab Glasgow Pollok Watch on SPTV

Amendment 5 has some attraction, in so far as it would require the commission to review its operations after its first two years. We commend such reviews as good administrative practice and certainly expect the commission to hold a consultative review seeking the views of interested parties on issues arising from its first few years of operation. However, that is as far as we would go. The amendment reflects the unease that some feel about the split that the bill makes between conduct and service complaints and about the fact that responsibility for conduct complaints is to be retained by the professional organisations. As has already been said, those issues were debated by the Justice 2 Committee at stage 2 in the context of amendments lodged by John Swinney. There was also debate about where the split is and how difficult it can be to make that absolutely definitive, but the bill recognises that there is the capacity to shift from one to the other, and that is an acknowledgement that a complaint that starts off as one type may become another and might therefore have to be dealt with in that way.

In our view, it would not be right to add conduct complaints to the commission's remit. The purpose of the commission is to provide an informal and consumer-friendly process, to promote mediation and dispute resolution at source and to focus on redress for consumer complaints. In contrast, conduct allegations carry with them the risk of a range of disciplinary sanctions against the practitioner, up to and including loss of livelihood. Disciplinary hearings against practitioners that could trigger sanctions of such severity require different, more formal and adversarial procedures, and full rights of appeal. If, in the worst-case scenario that John Swinney describes, it was found that that split was not working, it would not be a given that the commission would take over that role. A different solution may be needed, and the presumption that it would fall to the commission is not right. The professional organisations and, where appropriate, the discipline tribunals are already skilled at performing that sort of role and should be left to continue to do so. Given that the regulatory bodies set the standards of conduct for members of the profession, those bodies are in the best position to assess shortcomings. For those reasons, we do not support amendment 5.

On amendment 7, we do not believe that it is appropriate to have a reserve power to remove, by means of regulations, responsibility for conduct complaints from the professional organisations.

Even by John Swinney's standards, his suggestion that our acceptance of one amendment to one bill constitutes past practice on the part of the Executive is a little elastic with the truth. In our view, an important principle of the bill is that service complaints should be dealt with by the commission and conduct complaints should be dealt with by the professional bodies. It is reasonable to argue that primary legislation would be the most appropriate way to make such a fundamental change, given that a range of options would need to be considered if, in the way that John Swinney fears, the approach in the bill had failed.

We do not support amendment 5 and we do not recognise the need for the reserve power in amendment 7, no matter how attractive John Swinney might have managed to make it appear by claiming precedent.