Hansard

I thank the Justice 2 Committee for its thorough consideration of the Legal Profession and Legal Aid (Scotland) Bill. A number of refinements were made to the bill at stage 2 and I thank the committee members for their careful consideration of the issues. There is no doubt that a consensual approach was taken early on—perhaps my late involvement did not tamper too much with that.

The bill has attracted much interest and comment from stakeholders, MSPs and the media. Although the Executive may not have agreed with all the concerns that have been raised or all the suggestions that have been made, we have listened carefully to what was said. There is clear evidence of a dialogue throughout the process and of movement and development as the bill has progressed through Parliament, which gives the lie to the false notion that the Executive introduces bills and then repels all boarders who wish to change them. In particular, we have taken on board concerns about the inequity of applying the complaints levy to all complaints, whether they are upheld or not. We have also taken seriously the questions that were asked about the bill's compatibility with the European convention on human rights so, to strengthen the bill, we have taken action to reinforce the Scottish legal complaints commission's independence and provide a right of appeal.

The bill strives to build a new working relationship between practitioners and their clients. I believe that it now strikes the right balance in respecting the rights of both. A strong, independent and well-regulated legal profession in which the public have confidence is one of the cornerstones of the justice system. When they use lawyers, consumers need to understand their rights, the level of service that they can expect and their own responsibilities. When things go wrong, an effective process must be in place to ensure that the right remedies and redress are available and are provided quickly.

The need to reform the current arrangements for handling complaints was originally highlighted in a report by the previous Justice 1 Committee in 2002. That committee's diagnosis was reinforced by the public response to the Executive's consultation paper last year. The Legal Profession and Legal Aid (Scotland) Bill takes forward the agenda for change by proposing a quick, efficient and consumer-friendly way of resolving disputes when people who have genuine complaints have been unable to resolve their complaints directly with their lawyers.

The bill will set up the Scottish legal complaints commission, which will be an independent complaints-handling body that will act as a single gateway to receive complaints against members of the legal profession and which will handle them impartially, transparently and efficiently. That core proposal has been broadly supported; indeed, Parliament overwhelmingly endorsed the general principles of the bill following the stage 1 debate.

However, there have been differences of opinion on matters of process. I understand that, at stage 2, there were a number of lively debates on a variety of issues, such as the appointment and dismissal of the commission's board members, powers of enforcement for the commission's recommendations and the appropriate maximum level of compensation for complainers.

However, the most controversial issue that was debated at stages 2 and 3 was the bill's compliance with the European convention on human rights. Many members will be aware that the legal profession expressed concerns at stage 1 about how the bill would provide for the independence and impartiality of the commission. Notwithstanding the fact that the Presiding Officer certified that the bill is ECHR compliant and that the Executive was, and remains, assured of the bill's compliance, further concerns were expressed at stage 2 and today. Although the Executive does not accept the legal argument that was put forward, several amendments were lodged for the purpose of reinforcing the independent status of the commission as a regulatory body in a specialised area of consumer complaints handling. In particular, we introduced several measures to ensure compliance with article 6 of the ECHR and we removed ministers' powers to issue general directions to the commission. I add that there was never any intention to use those powers to influence the commission's decisions, although they could have been seen as enabling ministers to do that.

We also clarified the appointments provisions to make it clear that appointments are for a fixed period, and we secured a consultative role for the Lord President of the Court of Session on the appointment of board members. The Lord President will also now have a role in dismissal of the members and chair of the board. The bill already required the commission to make rules about its practice and procedures, and we lodged amendments to require that the Lord President be consulted on those rules.

We also lodged an amendment to reinforce the demarcation between the commission's investigative function on the one hand and its determination function on the other. That amendment makes it clear that the determination committee cannot include any person who has been involved in earlier consideration of the complaint.

We acknowledged the concern that the practice of the commission in fixing awards may differ from that of other courts, so we made it clear in the bill that the commission must, in considering levels of awards, take account of levels of damages that have been awarded by the courts in similar circumstances.

Finally, the legal profession called for a full right of appeal of the commission's decisions to the court, again for ECHR reasons. We considered that carefully, and we accepted the need for a right of appeal. However, I emphasise that an appeal will proceed only with the leave of the Court of Session. That will ensure that only cases in which there are substantial grounds for appeal will proceed. We recognise that, for the new complaints handling system to work effectively, it must secure the confidence of both the users and providers of legal services. It must also be based on a secure statutory foundation. I hope that in developing the package of measures, we have reinforced the bill's ECHR compatibility and reassured the legal profession of the commission's independence.

Those were the concerns of the legal profession, but I remind everyone that the central aim of the bill was to put the users of legal services at the heart of regulatory arrangements. People seek legal advice at critical times in their lives, so lapses from high standards, however rare they are, can have severe consequences for clients. The people of Scotland have the right to complain in such circumstances, and they deserve to have their complaints dealt with quickly, efficiently and transparently. When a complaint is upheld, redress needs to be appropriate and delivered swiftly.

There was discussion both at stage 2 and this morning about the appropriate level of compensation for service complaints. The Justice 2 Committee questioned the basis for the maximum of £20,000 in the bill. We responded by saying that the figure is necessary to ensure that the commission can consider as many complaints that involve low-level negligence as possible. At present, all cases involving negligence must be pursued through court action, regardless of the amount of damages that is sought. It is vital for access to justice that ordinary people can pursue a complaint involving low-level negligence without facing the uncertainty and expense of a court action. That is why we resisted attempts to have the figure lowered.

It is also important that clients receive full redress for what they have lost and all that they have suffered. That is why we resisted calls for the £20,000 limit to represent a cap that also covers other measures of redress, such as the limitation of fees or the cost of rectification. The maximum level of compensation will be £20,000, and the sum will be in addition to the value of the other remedies available. As we have said, the figure is a maximum—any anxieties on the part of the profession that it might become an average level of award are completely unfounded.

On the legal aid provisions, the bill will also implement some of the key recommendations from our "Advice for All" consultation where amendment of the Legal Aid (Scotland) Act 1986 was required. The changes are part of a range of improvements that will pave the way for the development of a more flexible and proactive system of publicly funded legal assistance. We want to progress to a system in which unmet needs can be identified and addressed in a co-ordinated way and in which advice can be provided by whoever is best equipped to do so.

In the stage 1 debate, Hugh Henry announced that he had asked the Scottish Legal Aid Board to set up a network of solicitors who are employed by the board to provide civil legal assistance where there are gaps in private sector provision. I am delighted to announce that that project is now under way. In response to the difficulties that some applicants have encountered in finding solicitors who will deal with domestic abuse cases in the Highlands and Islands, the board has advertised for a solicitor to provide that service. The key focus will be work with local organisations and women who have experienced domestic abuse. I know that that news will be welcomed in particular by Maureen Macmillan, who raised the issue with Hugh Henry and the chief executive of the legal aid board.

We have listened to the views that were expressed by stakeholders in response to our formal consultation and during discussions that were arranged by officials while the committee took evidence at stage 1. That is why we lodged amendments at stage 2, including amendments to provide SLAB with a grant-funding power. That is not only to provide another funding stream for advice provision, but to give SLAB a strategic tool that it can use to help develop and support provision in areas where the problems are more fundamental than mere unavailability of advisers. We have also listened to views that were expressed by committee members during their thorough consideration of the bill, and by John Swinney and Bill Aitken, who diligently attended the stage 2 meetings and contributed to the discussions. In response to an issue that was raised by Bill Aitken, we lodged an amendment at stage 3 to require the code of practice for registered advice organisations to include arrangements for complaint handling.

We are committed to ensuring access to justice. It is important to recognise that the vast majority of legal aid provision comes from hard-working solicitors in private law firms. It is therefore important that we continue to monitor the legal aid system and its remuneration levels to ensure that an adequate supply of solicitors provide this crucial service. A report by SLAB—with the Law Society and the Executive—indicates that the civil legal aid reforms that were introduced in October 2003 and in 2004 are operating reasonably well, but it also identifies areas in which we could make further improvements.

We hope to be able to introduce regulations soon, which will make important changes to the civil block-fee system, which will improve both flexibility and the reward for solicitors. Although I am sure that that will be welcomed, I have asked my officials to work with SLAB in the new year to review the overall level of fees that are payable to solicitors in civil legal aid cases, given that the new system was introduced in 2003. We will also review the financial eligibility rules for legal aid to ensure that it is not only the best and worst-off people in our society who can receive help to get their legal problems resolved.

There has been a great deal of interest in the bill from the legal profession, members of the public, MSPs and consumer interests. I thank everyone for contributing their ideas, expressing their concerns and challenging the bill's provisions in a positive and rigorous way. I believe that the bill strikes the right balance in dealing with complaints in a way that is fair and accountable to all parties. It incorporates safeguards to reassure the profession that the Scottish legal complaints commission will act in a reasonable way in handling complaints. Equally important is that the provisions in the bill will give a voice to consumers and provide them with an opportunity to work with the legal profession in raising the standard of legal service provision in Scotland.

I thank again all those who have been involved, in particular the bill team, who had to deal not only with a very complicated bill but with a new minister at a very late stage. Their tolerance of me was very much appreciated.

I move,

That the Parliament agrees that the Legal Profession and Legal Aid (Scotland) Bill be passed.