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Justice Committee 15 June 2010

15 Jun 2010 · S3 · Justice Committee

Item of business

Legal Services (Scotland) Bill: Stage 2

Robert Brown Watch on SPTV

The debate is a legitimate one—there are no two ways about it—but, frankly, I do not accept the Government’s position or its explanation of the Lord President’s constitutional position. The amendments are important and relate to the independence of the legal profession. One reason why the role of the Lord President has come under such scrutiny and why such importance has been attached to it in the debate is that it provides an independent judicial barrier between Government and the legal profession. In the context of the bill, that is important.Amendment 236 is the central amendment and is simply phrased. It requires the consent of the Lord President to the approval of regulators. That is right, and the involvement of the Lord President should not be limited in the way that the Government suggests. First, the Lord President’s involvement with regulations that the Law Society of Scotland produces in similar situations is not limited in that way. Secondly, it is wrong to try artificially to put a limit on the Lord President’s rights in the matter. No doubt, in 99 cases out of 100, the Lord President will follow the advice of the Scottish Government on such matters and will take account of the evidence that the Scottish Government provides. It is not necessary or contemplated that there should be duplication of work. However, the Lord President is entitled to have an overriding role in such matters.The convener’s amendment 238 extends the Lord President’s role to the approval of the conditions that are to be imposed on a regulator. That falls into the same category, so I support amendment 238. These amendments are essential if the Lord President is to become a constitutional buffer between ministers and approved regulators.Last week, I touched on the Scottish Government’s amendments 5 to 7, which add confusion and clumsiness to the definition of the expertise required, and I am opposed to them. How on earth is amendment 6 different from the bill as drafted? Instead of a relatively straightforward expression about legal expertise, amendment 6 talks about “the necessary expertise as regards the provision of legal services (including as deriving from that of the persons within it)”.Some interpretation is required to understand what the Government is getting at in that amendment. The phraseology of the bill as it stands is superior.The convener’s amendment 240 and my amendment 244 seek to involve the Lord President in the approval of regulations. I am not as fussy about the Lord President approving them as I am about his being consulted on them, especially in relation to the more minor powers in section 6(7). However, it is necessary for the Lord President to approve conditions under section 6(2). For the reasons I gave earlier, I oppose amendment 14, which would limit the Lord President’s involvement to one area only.This is an important debate, and the Scottish Government has not got the balance quite right.

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Justice Committee 15 June 2010

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