Hansard

Amendments 347 to 355 will make changes to section 60, which is on disclosure of information by practitioners to the SLCC and relevant professional organisations. Section 60 will amend section 17 of the 2007 act, which allows the SLCC in certain circumstances to require a practitioner to produce documents, with the exception of documents that are subject to legal privilege, relating to the complaint. Despite that exception, amendments 347 and 350 will allow the disclosure of such documents by a practitioner with the client’s consent.

Section 48 of the 2007 act enables a relevant professional organisation in certain circumstances to require a practitioner to produce documents, with the exception of documents that are subject to legal privilege. Amendment 353 will not prevent disclosure of such documents where the client consents to their disclosure.

Amendments 348 and 354 will expand the definition of “documents” to make it clear that it includes references to anything in which information is recorded in any form, in order to provide the SLCC with additional scope to compel from a practitioner provision of relevant documents that might be helpful in determining a case.

Amendment 349 will introduce a power for the SLCC to uphold a services complaint where a practitioner has failed without reasonable excuse to comply with the requirement to provide information in relation to a complaint. In the stage 1 evidence sessions, the committee heard that around 300 solicitors a year do not reply on time to a statutory notice, which accounts for around a quarter of the complaints that are received. Although court orders are an option, they are not always effective, and there are recent examples of solicitors being held in contempt for failing to comply with a court order. Amendment 349 will enable the SLCC to proceed to determine a services complaint, in the event that a practitioner who is subject to a statutory notice to provide information or documents refuses or fails to do so within the specified time and without a reasonable excuse. The amendment will require the SLCC to notify the practitioner and their employer of their intention to determine the case, giving them at least 14 days to provide a reasonable explanation or the information. The SLCC may also draw an appropriate inference from the practitioner’s failure to provide the requested information or documents within the required time.

Amendment 351 is a minor technical amendment.

Amendment 352 will require a relevant professional organisation, where it issues a notice requiring the production or delivery of documents directly to the practitioner, to also send a copy of the notice to their employing practitioner, where that is relevant, in order to ensure that they are aware that the request is being made.

Amendment 355 will allow the relevant professional organisations to determine a conduct or regulatory complaint, in the event that a practitioner who is subject to a section 48(1) notice to provide information or documents refuses or fails to provide the information or documents within the specified time and without a reasonable excuse. The relevant professional organisation is required to notify the practitioner and their employer of their intention to determine the complaint. The notice of intention must give the practitioner at least 14 days, or such greater period as the relevant professional organisation considers appropriate, to provide a reasonable explanation, or the information, before the case is determined.

Amendments 357 to 361 will make changes to proposed new section 17A that the bill will insert in the 2007 act. That will enable the SLCC to obtain a practitioner’s contact details from the relevant professional organisation for certain purposes, where it considers it necessary to do so in relation to a complaint.

Amendment 357 will extend the SLCC’s powers to enable it to request contact details from the relevant professional organisation relating to the practitioner, practitioner’s firm, employing practitioner or persons holding a specified role, or exercising a specified function, in the practitioner’s firm or for the employing practitioner.

Amendment 358 will provide that relevant professional organisations must respond to a request under section 17(1) without delay, rather than “as soon as practicable”.?The SLCC requested that change in order to prevent delays in a complaint being progressed.

Amendments 359 and 360 will add assessment of the eligibility of a complaint to the list of purposes for which the SLCC can request practitioner’s details from relevant professional organisations in connection with complaints.

Amendment 361 will make it clear that the relevant professional organisation is required to provide the contact details of practitioners that they hold, whether or not those practitioners are authorised to provide legal services. The amendment addresses the issue, which the SLCC identified, of trying to track down practitioners who have stopped practising since the complaint was made.

?I appreciate the intention behind amendments 644, 645 and 650, which are in the name of Paul O’Kane, and which seek to ensure that regulatory bodies have sufficient powers to investigate complaints. I understand that the amendments are intended to provide that a relevant professional organisation may seek information prior to lodging a complaint. Such proactive regulation is, of course, important, but I consider that the bill already allows for that, so I view the amendments as unnecessary.

Section 67(3) of the bill, which will insert proposed new section 33A into the 2007 act, allows the Law Society, or any legal regulator, to raise a complaint in its own name without being required to first raise the complaint with the SLCC. The regulator has the power under section 48 of the 2007 act to require information that relates to investigation of the complaint.

Amendment 355, which is in my name, will allow the relevant professional organisation to determine a conduct or regulatory complaint in the event that a practitioner, who is subject to a section 48(1) notice, fails to provide the requested information or documents within the specified time and without reasonable excuse.?

Amendment 531, which is also in my name, will allow the Law Society to discontinue a conduct complaint where they consider that it is in the public interest to do so.

Those measures seek to ensure that the Law Society and other legal regulators have open to them the appropriate mechanisms to properly investigate complaints.??Proactive regulation, which is already enabled by the bill, allows issues to be identified early, which can prevent harm to consumers or the public. The authorisation of legal businesses allows the Law Society to identify and address deficiencies early and take the necessary preventative action. Although in-house solicitors are subject to the Law Society’s practice rules, they are also subject to an internal review of their performance and to annual appraisal by their employer.

I hold concerns that Paul O’Kane’s amendments, as drafted, are overly broad and unrestricted. The granting of pre-complaint investigatory powers is not unprecedented, but must be exercised proportionately in order to maintain trust and to avoid undermining those who are being regulated.? It is entirely inappropriate for the Law Society to have powers that might interfere with the prosecutorial independence of the Crown Office and Procurator Fiscal Service, and the Lord Advocate. That concern has been raised with the Law Society.?

For the reasons that I have set out, I am unable to support amendments 644, 645 and 650, so I ask Mr O’Kane not to press his amendments.?If they are pressed, I urge members not to support them. I ask members to support all my amendments in the group.

I move amendment 347.