Hansard

I thank the clerking team for the enormous amount of work it got through, particularly in the early stages, when we received about 600 submissions in response to the call for evidence, all of which the clerks processed diligently and speedily. I thank also the Scottish Parliament information centre for its work to support the committee and the clerks. Of the 600 or so submissions, more than 30 came from individuals who had experience of the current complaints-handling system, which had not always proved to be to their satisfaction. I thank Margaret Ross, the committee adviser, who was a tremendous support and asset to the committee in helping it through some of the complexities of the bill. Finally, I thank all of the witnesses, especially the individuals who gave evidence, and the many people who have since written to the committee to comment on the stage 1 report, which has been circulated to members.

However, I am disappointed that the Executive response to the committee report was received only this morning, certainly by me. The committee report was lodged with the Parliament in June and it would have been extremely helpful if the committee had been able to consider fully and take advice on the contents of the Executive response. The committee will have to go straight into stage 2 without having had the chance properly to scrutinise the Executive response. The committee asked in the report that it should receive as much information as possible prior to stage 2 so that it could work collectively to make a really good job of the legislation, as Kenny MacAskill said.

From my brief reading of the Executive response, and from the minister's comments today, it is fairly clear that ministers are responding positively to some of the committee's suggestions, but the definition of negligence and the separation of professional misconduct and inadequate professional service is still somewhat unclear. I am disappointed that little clarity was offered on the legal aid section of the bill prior to the minister's statements, because as other members will no doubt say, that is an important matter of concern to the public.

The minister intends to lodge more than 300 amendments—that is apart from any amendments that other members might lodge—and it is vital that the committee should have adequate time to consider them. This is an important bill, the fine details of which must be considered carefully. There is a need to establish consumer confidence in the new commission and processes, which must be equally fair to all who are involved in a complaint.

The committee welcomes moves to improve complaints resolution at an early stage. Most lawyers in Scotland operate without any complaints being made against them. Solicitors conduct around 1 million legal transactions in a year and of the 5,000 or so complaints that are made, only a small number require action. The committee wants to ensure that the Executive provides absolute clarity on the definitions of inadequate professional service and professional misconduct. Somehow, negligence, which is a grey area, must also be clearly defined. We asked for information on that prior to stage 2.

The Faculty of Advocates, the former Scottish legal services ombudsman, academics, the Scottish Consumer Council and the Scottish Solicitors Discipline Tribunal gave us evidence on how difficult it might be to separate conduct complaints from service complaints. As our report shows, the majority of the committee agreed with the proposed separation of complaints into those two categories. We recommended that arrangements should be included in the bill to deal with any disagreement between the Scottish legal complaints commission and the professions about how a particular complaint should be handled.

The committee asked for clarification of the rationale for the proposed maximum compensation levels of £20,000 and £5,000, although I acknowledge that the minister set out some of the reasoning behind that in the letter that arrived today and I am sure that we will get more details at a later date. The committee expects the commission to apply the same standards as the courts when assessing claims of negligence.

Some members have mentioned access issues. We took a great deal of evidence on the fact that smaller and rural practices may choose to do only certain types of work. Although we welcome the minister's comments on access to legal aid, there are still questions to be answered about how the issue will be dealt with when the bill reaches its final stage.

On the master policy and the guarantee fund, the committee received conflicting evidence about undue delays in the settlement of claims and the extent of the Law Society's involvement in the process. However, we received no objective evidence on that. Although the committee believes that the commission should have the power of oversight of the master policy and the guarantee fund, it notes that the commission's ability to take action will be limited to making recommendations.

The minister partly addressed ECHR compliance. The committee received differing legal opinion on whether the bill will be ECHR compliant, particularly in relation to independence and impartiality and the lack of a right of external appeal. The committee has great concerns about the arrangements for the appointment of members of the commission. Schedule 1 provides for Scottish ministers to appoint commission members and gives them the power to remove members and to direct some of their actions. The Executive was asked to respond to concerns about that. The proposal that the Lord President and the Judicial Appointments Board could be involved seemed to have been welcomed, but the minister has now suggested that the involvement of the Lord President would give the impression of professional control of the appointments system, even though he is regarded as being an independent person. I would like ministers to clarify their position.

We received varying legal opinions on an independent appeals mechanism. The committee agreed with the Finance Committee that the financial memorandum and its accompanying documents did not give sufficient detail on the commission's funding, the levies and the accountability of the financial process.

On behalf of the committee, I thank Hugh Henry for appearing to agree with the committee's views on the polluter-pays principle. We asked that legal aid should be based on a grant system and we welcome the fact that the minister seems to be moving in that direction.

It is vital that the Parliament sets up a robust, accountable, approachable and cost-efficient system that does not penalise the professions unduly, but which is fair to people who make complaints. The bill requires a significant amount of work to bring it up to the standard that the Parliament expects. We look forward to having sight of the minister's many proposed amendments. I make a plea for the committee to be given adequate time to consider those amendments fully so that it can complete its work correctly. In spite of those comments, the committee recommends that the general principles of the Legal Profession and Legal Aid (Scotland) Bill be agreed to.