Hansard

The amendments in the group have three main purposes. First, they seek to empower professional organisations to obtain the documents and information that they need to investigate conduct complaints, or to review their decisions about such complaints. The proposed provisions mirror the powers that sections 13 and 13B will give to the Scottish legal complaints commission. Secondly, they will enable the professional organisations to freeze bank accounts when they have reasonable cause to believe that a practitioner has been guilty of financial impropriety. Thirdly, they will allow the professional organisations to recover expenses that they have incurred in obtaining court orders for the production of documents and explanations, and for freezing bank accounts. Under section 13A of the bill, the proposed commission already has that power.Amendment 302 seeks to give powers to the professional bodies to examine documents and to demand explanations from a practitioner when they are satisfied that that is necessary for a conduct complaint to be investigated effectively, or for their decision on such a complaint to be reviewed. The professional bodies must give to the practitioner notice that requires them either to produce or deliver documents that are relevant to the complaint, or to explain matters to which the complaint relates. Those bodies may also give to complainers notice that requires them to produce or deliver documents in their possession or control, or to explain matters to which the complaint relates.In addition, amendment 302 seeks to introduce a schedule that will set out the further powers of relevant professional organisations for which amendment 306 provides. That schedule will allow professional bodies to obtain documents by court order when a practitioner or a complainer has refused, or has failed, to produce or deliver them. When such an order has been granted and the professional organisation takes possession of the documents, it must serve a notice in which it gives relevant particulars and the date on which it took possession of the documents. The practitioner or complainer may apply to the court for an order for the documents to be returned.Amendment 303 will enable a professional body to apply to the court for an order to freeze bank accounts that are held in the name of a particular practitioner or firm when it has reasonable cause to suspect financial impropriety. If the order is granted, the leave of the court will be needed for any payment to be made from such a bank account. The amendment will thus extend to all the relevant professional bodies a power that the Law Society of Scotland has under section 38 of the Solicitors (Scotland) Act 1980.Amendment 304 seeks to permit the professional bodies to recover from practitioners any expenditure that they might reasonably incur in obtaining court orders for the production of documents or explanations, and to freeze bank accounts.In circumstances in which a third party refuses or fails to produce documents or information following a request for it to do so, amendment 305 will allow a professional body to apply for a court order. An order is to be granted only when the court considers that the material is relevant to the investigation or report concerned, and that disclosure would be in the public interest. Legal professional privilege would continue to apply, so a third-party lawyer would not be forced to disclose confidential communications with a client unless the client consented.Amendments 346 to 348, 352 and 353 seek to insert further amendments to the Solicitors (Scotland) Act 1980 into schedule 4 to the bill. Amendment 346 will repeal section 38 of the 1980 act as it relates to any element of dishonesty in relation to devolved advice, services or activities. It is intended that the repeal of section 38 will be completed by legislation in the United Kingdom Parliament that will repeal section 38 as it relates to the reserved matters that are referred to in section 47(2) of the bill. Section 38 will be replaced by the provisions in amendments 302 and 303.Amendments 347 and 348 seek to amend sections 45 and 46 respectively of the Solicitors (Scotland) Act 1980 and are consequential on the repeal of section 38 of that act. They will simply replace references to provisions in that section with the full detail of those provisions. In that way, the repeal of section 38 of the 1980 act will not result in any change in the content of sections 45 or 46 of that act.Amendment 352, which is also consequential, will extend the requirement for the Law Society's council to serve notice of its intention to recover expenses from a solicitor or an incorporated practice to circumstances in which it has taken action under sections 45 and 46 of the 1980 act.Amendment 353 is a consequential and technical amendment that will ensure that the provisions of part II of schedule 3 to the 1980 act will continue to apply to circumstances in which action is taken under sections 45 and 46 of the 1980 act.I move amendment 302.