Hansard

I declare an interest in that my husband is a practising advocate. However, competition, regulation and alternative business structures are not often the subject across the dinner table.

Why are we debating this issue this morning? My theory is that, after Kenny MacAskill has had a hard week, we have a debate such as this to cheer him up, as we did a couple of weeks ago. However, we are really here because it is an important debate following a trigger super-complaint to the OFT by the Consumers Association and the OFT's response. So what should our terms of reference be? I make it clear that the Labour group is not setting out policy positions—in fact, I do not think that anyone in the chamber is setting out a policy position. Rather, we are exploring the complex and important issues arising from the debate.

From what I have heard, there is consensus that the status quo is not an option and that there might be business advantages in change but that we must strive to ensure that any changes benefit the ordinary person, and that quality and regulation, over which the Parliament has control, are maintained.

We in Scotland should continue to take our own approach. It has served us well in the past and, although the procedure that we have been talking about might have provoked the need for change, our response should be distinctly Scottish. An independent regulatory framework that lies within our democratic control and not just market control will mean that we can balance the interests of firms and businesses with those of the consumer and of standards.

I agree with Kenny MacAskill that the balance should be between competition and regulation; that is the right approach. We need the right level of competition to achieve what is sought. We must not improve access just hypothetically; we must demonstrate that we can improve access for the ordinary person in the street. The language of the super-complaint is not strong enough in saying that change must result in better services.

Our starting point is that the previous Government has presided over substantial change. Indeed, we went beyond the Law Society's wishes in the way in which we dealt with regulation and professional conduct. It must be recognised that there has already been quite a lot of change.

To summarise what other members have said, the issues raised by the super-complaint include direct access to advocates; multidisciplinary practices that involve more than one profession; legal disciplinary practices in which lawyers and advocates work together in the same firm; third parties owning law firms, thereby removing the bar that only lawyers can own practices; and changing the definition of a solicitor's services so that it is not distinguishable from that of another person who provides advice.

The Law Society set out its response to the super-complaint. Although it is a very lengthy document to read through, it is important because it sets out what the Law Society believes are inaccuracies about the Scottish system, as well as some fundamental errors. The Law Society response says that the OFT did not consult the Law Society before it arrived at its conclusion and also suggests that the OFT did not consult the Government, even just to check that its understanding of the Scottish legal system and the regulation of the Scottish system was correct. I would therefore welcome clarification from the Cabinet Secretary for Justice of whether he was consulted before the OFT arrived at its conclusion, although I understand that he is in regular contact with the OFT. I would like to think that the OFT would have checked that its understanding of our regulatory system was correct and that it was using the correct language.

Protecting the public means that we have to ensure standards and quality. That is Parliament's job regardless of who uses the system.

John Wilson eloquently outlined the process: the Clementi review in England; the Consumer Association's super-complaint; the OFT report; and the Law Society's response. The process culminated in the Cabinet Secretary for Justice's speech in July, which signalled that there would be no status quo. However, I fear that we might be being pushed into a timescale. Although this morning's debate has given us a chance to air the issues, I whole-heartedly agree with Mike Pringle's call for us to proceed at our own pace. The most important issue of the debate is that we should be allowed to take our time to get through this complex issue. The Law Society also points out that the change cannot be enacted under the powers of the enterprise legislation; it can be enacted only under the devolved powers of the Scottish Parliament.

Social justice issues and widening access for consumers should be at the heart of the debate. I will mention some of those issues. Transparency in legal fees is very important. We forced the Law Society to make changes to ensure that when its members discuss the terms of a case with a client, they issue letters of engagement. In other words, when someone instructs a lawyer, they should have a rough idea of what it is going to cost them. Parliament forced the Law Society into applying its own rules on that. Transparency in legal fees is a very important issue for the ordinary person. As David Whitton mentioned, we have to ensure that we do what we can to make legal services affordable.

Some concerns have been raised about law firms and civil legal aid. Margaret Smith and Aileen Campbell have spoken about firms simply giving up and removing that choice for individuals. I want to dwell on Rhoda Grant's contribution about the importance of getting the civil legal aid rules right. She made an important point about women who are seeking an interdict to protect themselves from violence: if they receive certain benefits, those are counted when it is being decided whether they will get full legal aid, so getting the interdict may become too costly. Parliament pointed that out almost four years ago—Margaret Smith might remember whether it was the Justice 1 or Justice 2 Committee—and asked for a solution. I call on the Government to look at the issue again and come to an acceptable conclusion.

Law centres are very important to the debate about providing accessible law for ordinary citizens. Legal aid rules need to be reformed and the public needs to be given choice.

A sensitive issue for the Law Society is the suing of other lawyers. Members might have had experience of that through their constituents. There seems to be no framework for doing that. In all fairness, we need to be clear about the rules, so that people do not have to shop around, being refused access to lawyers because they believe that they have had defective representation in the past.

Has anyone heard of the auditor of court? It is an important aspect of the legal system. Anyone who disputes their legal bill sends it to the auditor of court. Some people struggle to understand how even the auditor arrives at an amount. We need transparency so that the ordinary person can understand whether they have been treated fairly in the application of legal fees.

Bill Aitken made the important point that legal firms contribute £1.2 billion to the economy, so opening up the market is a fine balancing act to ensure that we do not reduce that contribution to the general economy.

Paul Martin talked about the one-stop shop, which seemed to be very attractive to consumers. It will probably feature in future change, notwithstanding some of the important dimensions that Nigel Don mentioned. Multidisciplinary practices have to consider the regulation of the different professions and ensure that there is no conflict of interest; the firm that employs the surveyor to work alongside the lawyer needs to be sure that members of both professions are true to their oaths, as Christopher Harvie said, and not simply loyal to the firm.

Forcing Scotland to go down the same road as England for its own sake is not the best approach. The English bar operates quite differently. I have no experience of that, but I watch "Judge John Deed" and, if that is anything to go by, the English bar is very different from the Scottish bar.

The Scottish bar has unique quirks and some very strange conventions. When I introduced my husband, who is an advocate, to Des Brown, who is also an advocate, they shook hands. Des Brown then said to my husband, "We will not be shaking hands again." I questioned that and learned that it is a Faculty of Advocates convention that if an advocate shakes hands with a very learned colleague, they should never shake hands again. There is also the devilling system and, just to show that there is no hierarchy in the legal system—not—a lawyer is a friend, an advocate is a learned friend, and a Queen's counsel, such as Gordon Jackson, is a very learned friend. So our Scottish Faculty of Advocates has some interesting historical quirks that make it very different.

Mike Pringle, as an Englishman, can say that we should not rush to beat England on the timescale, and I whole-heartedly agree. John Wilson talked about the fit-to-own test; that is crucial if we are to discuss whether third parties will be able to own law firms. Paul Martin also made the point that opportunities for those whom we might not want to own legal firms would be opened up if we relaxed that rule, so we would need to be careful to apply such a test if we were to go down that road.

It has been suggested that we should set up a legal services board independent from Government, but I fear that it would be another quango—perhaps one for the bonfire—that would be distant from democratic control. In fact, all the OFT recommendations are beginning to sound like proposals for a completely free market. Having considered the matter, I am almost certain that that is the wrong approach to take. Although the independence of the legal profession is important, there should be democratic control over that framework. If we were to go down the road that some are recommending, we would lose the opportunity to have that democratic control.

There may be a case for relaxation of the rules on employing advocates by allowing direct access, and we need to learn more about how that would operate, but there are finely balanced principles that make the system work, as Margaret Smith has said.