Hansard

There are a number of amendments in the group, so I ask members to forgive me for the length of my comments. The amendments are consequential on work that was done at stage 2 and will make the bill consistent.

Amendment 20 is a small technical amendment. At present, section 7(3) refers to a proposal for assessment of a services complaint being made by the commission under section 7(1) but, in fact, such a proposal would be made under section 7(2). Amendment 20 will simply substitute a reference to the correct subsection. Amendment 30 will clarify that a report on a complaint that has been dealt with by mediation may be published only once the mediation has been completed. It is only once the mediation is concluded that there could be an outcome that the complainer and the practitioner accept, so it is only once that stage has been reached that the commission should be able to consider publishing a report of the mediation under section 9A.

Amendment 76 will remove a stray reference to limited liability partnerships. Other references to limited liability partnerships were removed from the bill at stage 2 on the basis that such partnerships are simply a species of incorporated practice. Therefore, there is no need to refer to them separately from incorporated practices. Amendment 79 is a technical amendment. Section 34 contains various definitions that generally apply only to part 1. Sections 35 to 35E are in part 2, so there is a wider problem with the use of a range of expressions in sections 35 to 35E that are defined in section 34. Amendment 79 will resolve the difficulty by applying the section 34 definitions.

Section 38A will insert new provisions into section 54 of the Solicitors (Scotland) Act 1980, which, as amended, will deal with appeals to the Court of Session in professional misconduct cases against individual solicitors; in cases of breach by an incorporated practice of any provisions of the 1980 act or of a professional rule regulating such practices; and in cases in which a disciplinary proceeding follows the conviction of an individual solicitor or incorporated practice of certain offences. Such appeals would therefore always involve an individual solicitor or incorporated practice and not a firm of solicitors. Therefore, the reference to "a firm of solicitors" in line 26 on page 42 should be removed, which is what amendment 152 will do.

Amendment 153 is a minor amendment that will ensure that proposed new section 45(4A) of the Solicitors (Scotland) Act 1980 will apply whenever a solicitor is restricted from acting as a principal, and not only when that solicitor has been so restricted by order of the Scottish Solicitors Discipline Tribunal under section 53(5) of the 1980 act. For instance, a solicitor might be so restricted as a result of an order of the court.

Amendments 171 and 172 will extend slightly the powers of the Scottish ministers to make, by order, incidental, supplemental, consequential, transitional or saving provisions in connection with the bill. The powers will be extended to cover provisions that give full effect to the bill or any aspect of it. That may be useful in connection with the role of the Scottish Solicitors Discipline Tribunal. For example, it will enable provision to be made by subordinate legislation to adapt the tribunal's procedures to deal with any major increase in case law that is generated by the new complainer appeals that are provided for by the bill.

Sections 36 and 37 of the bill as introduced contained broad powers for the Scottish ministers to modify, by regulations under the affirmative procedure, any enactment, instrument or document for the purpose of giving the council of the Law Society of Scotland, the Scottish Solicitors Discipline Tribunal or the Court of Session further powers as regards unsatisfactory professional conduct complaints against solicitors and other practitioners. Those were holding provisions, which it was always intended to remove once drafting of the substantive provisions that were required was completed. Those substantive provisions were inserted at stage 2 and, as a result, the broad regulation-making powers were removed, but a reference to them remains in section 49 and should also be removed. Amendment 174 will delete that reference.

Amendment 199 is a minor technical amendment. Paragraph 1(2)(a)(ii) of schedule 4 substitutes certain words for the word "or" in section 3A(5)(a) of the Solicitors (Scotland) Act 1980. However, the word "or" appears more than once in that paragraph, so amendment 199 will specify that it is the first use of the word that is meant.

Amendment 202 will resolve a small problem that Bill Aitken pointed out at stage 2. It will clarify that proposed new section 45(4A) of the Solicitors (Scotland) Act 1980 will apply only to a solicitor who has been restricted from acting as a principal and who immediately before the restriction was a sole solicitor. Those are the circumstances that are mentioned in proposed new section 45(4A). The amendment specifies that that section has no application to the circumstances that are listed in section 45(1) of the 1980 act, namely, those in which a solicitor is struck off or suspended from practice or in which the registration of an incorporated practice is revoked. Section 45(1) of the 1980 act states:

"the following provisions of this section apply in these situations",

which might conceivably be taken as including proposed new section 45(4A). Amendment 202 will remove any such false impression.

Amendments 203 to 205 and 208 to 210 are extremely minor amendments that will simply ensure that the amendments to the Solicitors (Scotland) Act 1980 that insert the word "Court", spell it with a capital letter, as is appropriate. Those are probably my favourite amendments of the day.

Amendment 206 is a technical amendment that will bring proposed new section 45(3B)(b) of the 1980 act into line with similar powers to recover documents that are contained in sections 13 and 35A of the bill, by inserting a reference to documents that relate to any trust of which an employee of an incorporated practice is the sole trustee. Amendment 207 is a very minor amendment that will simply remove an extraneous "and" from section 45(5) of the Solicitors (Scotland) Act 1980.

Amendments 213 and 214 will remove a restriction on the Scottish Solicitors Discipline Tribunal's power to fine in the case of an incorporated practice that has been convicted of an offence, rendering it unsuitable to continue to recognise it as such a practice, or which has breached a provision of the Solicitors (Scotland) Act 1980 or professional rules that regulate such practices. The relevant restriction on the power to fine is intended to avoid double jeopardy and will apply only where, in relation to the subject matter of the tribunal's inquiry, the offending practitioner has been convicted of an act involving dishonesty and sentenced to at least two years' imprisonment. Clearly, the restriction can never be applicable to incorporated practices, which cannot be imprisoned, so the references to incorporated practices should therefore be removed from the restriction on the power to fine.

Paragraph 1(6N) of schedule 4 will insert a new subsection into section 53 of the 1980 act, which will provide that a restriction on the Scottish Solicitors Discipline Tribunal's power to fine does not apply in relation to any element of a decision to which proposed new section 53(2)(bb) in the 1980 act applies. Proposed new section 53(2)(bb) will confer on the tribunal a power to award compensation to complainers in professional misconduct cases. As the power relates purely to compensation, it has no relevance to the imposition of a fine in any event and does not need to be excluded from the restriction on the power to fine. Amendment 219 will therefore remove that exclusion. Amendment 220 makes a consequential grammatical change to paragraph 1(6N) of schedule 4.

Amendment 222 repeals subsections (2A) and (2B) of section 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Those subsections confer on the council of the Law Society of Scotland the power to order a rebate of fees and outlays against a conveyancing or executry practitioner or to order that a practitioner undertake rectification work where that practitioner is found to have provided an inadequate professional service. Following the enactment of the bill, all service complaints will be dealt with by the Scottish legal complaints commission, not by the council of the Law Society. It is therefore appropriate to repeal those powers.

I move amendment 20.