Chamber
Plenary, 07 Sep 2006
07 Sep 2006 · S2 · Plenary
Item of business
Legal Profession and Legal Aid (Scotland) Bill: Stage 1
Such is my dedication to the Justice 2 Committee and to the Legal Profession and Legal Aid (Scotland) Bill that, while other members have been sunning themselves this summer, I have been investigating Queen's Counsel and solicitors up close in the Court of Session for the past three months.
The Executive is right to have introduced the bill in response to the overwhelming demand from the public for a legal complaints system in which they can have faith. As everybody knows, the current self-regulatory procedure has been subject to widespread criticism. Many people see it as lacking in transparency and accountability. As things stand, the Law Society of Scotland and the Faculty of Advocates deal with the complaints made against 11,000 solicitors and 300 advocates by investigating matters themselves. As a response to the widespread criticism, the Executive carried out a consultation. The public's preferred option—to have a wholly independent legal complaints commissioner dealing with all complaints—was not one of the options, unfortunately. That consultation was thus inherently compromised, and so is the bill, I fear.
As many members have already said, the self-regulatory system is seen as lawyers protecting lawyers. It does not enjoy the necessary confidence of the Scottish Consumer Council, for example. In its evidence on the system, the council supported the aim
"to put the users of legal services at the heart of regulatory arrangements".
Although complainants who are unhappy with decisions that have been arrived at can seek redress by approaching the Scottish legal services ombudsman, that route is seen as both cumbersome and toothless. Mr Swinney referred to the evidence of Linda Costelloe Baker, the outgoing ombudsman. Her remarks reveal frustration with the bill's inability to take fully on board the public's criticisms. She said that the remit of the Scottish legal complaints commission will be limited to addressing complaints of poor service, that the rights of advocates and solicitors to self-regulation will continue where they should be scrapped, and that the Scottish legal complaints commission should be the regulator of adequate practice in the profession. The bill suggests that we move from self-regulation to partial co-regulation, replacing the legal services ombudsman with a Scottish legal complaints commission while, by and large, leaving lawyers to continue to regulate themselves.
Many members have used the debate to highlight the problems with the distinction between conduct and service complaints. In many ways, that goes to the heart of the bill. The suggestion is that complainants will approach the Scottish legal complaints commission for consideration of their case, and it will decide whether the case is about the service that legal practitioners have provided or about their conduct as legal advisers. Service complaints—for example, where a solicitor has not sent a letter or replied to a call timeously, or has failed to provide basic administration to an acceptable standard—will be considered by the commission, via a nine-person committee with a majority of non-lawyers. On the other hand, conduct complaints, regarding negligence or unprofessional representation, will continue to be the preserve of the Law Society or of the relations committee of the Faculty of Advocates. Although the verdict will be subject to scrutiny by the legal complaints commission, such complaints will essentially remain in house.
The bill's division between service and conduct complaints is a replica of the system that the Law Society currently operates. The bill has come under a great deal of scrutiny regarding that aspect. There have been many critics of how we are handling the distinction. The Faculty of Advocates selflessly concluded that it was better to leave it all to it. Many members have rightly highlighted the many difficulties with the proposed separation. We fear that that could lead to confusing and difficult practical arrangements. That is why I dissented on that part of the Justice 2 Committee's report.
The Executive is right to have introduced the bill in response to the overwhelming demand from the public for a legal complaints system in which they can have faith. As everybody knows, the current self-regulatory procedure has been subject to widespread criticism. Many people see it as lacking in transparency and accountability. As things stand, the Law Society of Scotland and the Faculty of Advocates deal with the complaints made against 11,000 solicitors and 300 advocates by investigating matters themselves. As a response to the widespread criticism, the Executive carried out a consultation. The public's preferred option—to have a wholly independent legal complaints commissioner dealing with all complaints—was not one of the options, unfortunately. That consultation was thus inherently compromised, and so is the bill, I fear.
As many members have already said, the self-regulatory system is seen as lawyers protecting lawyers. It does not enjoy the necessary confidence of the Scottish Consumer Council, for example. In its evidence on the system, the council supported the aim
"to put the users of legal services at the heart of regulatory arrangements".
Although complainants who are unhappy with decisions that have been arrived at can seek redress by approaching the Scottish legal services ombudsman, that route is seen as both cumbersome and toothless. Mr Swinney referred to the evidence of Linda Costelloe Baker, the outgoing ombudsman. Her remarks reveal frustration with the bill's inability to take fully on board the public's criticisms. She said that the remit of the Scottish legal complaints commission will be limited to addressing complaints of poor service, that the rights of advocates and solicitors to self-regulation will continue where they should be scrapped, and that the Scottish legal complaints commission should be the regulator of adequate practice in the profession. The bill suggests that we move from self-regulation to partial co-regulation, replacing the legal services ombudsman with a Scottish legal complaints commission while, by and large, leaving lawyers to continue to regulate themselves.
Many members have used the debate to highlight the problems with the distinction between conduct and service complaints. In many ways, that goes to the heart of the bill. The suggestion is that complainants will approach the Scottish legal complaints commission for consideration of their case, and it will decide whether the case is about the service that legal practitioners have provided or about their conduct as legal advisers. Service complaints—for example, where a solicitor has not sent a letter or replied to a call timeously, or has failed to provide basic administration to an acceptable standard—will be considered by the commission, via a nine-person committee with a majority of non-lawyers. On the other hand, conduct complaints, regarding negligence or unprofessional representation, will continue to be the preserve of the Law Society or of the relations committee of the Faculty of Advocates. Although the verdict will be subject to scrutiny by the legal complaints commission, such complaints will essentially remain in house.
The bill's division between service and conduct complaints is a replica of the system that the Law Society currently operates. The bill has come under a great deal of scrutiny regarding that aspect. There have been many critics of how we are handling the distinction. The Faculty of Advocates selflessly concluded that it was better to leave it all to it. Many members have rightly highlighted the many difficulties with the proposed separation. We fear that that could lead to confusing and difficult practical arrangements. That is why I dissented on that part of the Justice 2 Committee's report.
In the same item of business
The Deputy Presiding Officer (Trish Godman):
Lab
The next item of business is a debate on motion S2M-4713, in the name of Cathy Jamieson, that the Parliament agrees to the general principles of the Legal Pr...
The Deputy Minister for Justice (Hugh Henry):
Lab
We want a Scottish justice system that is fit for the 21st century. It must meet the changing needs of families and communities in today's Scotland. We want ...
Phil Gallie (South of Scotland) (Con):
Con
Will the minister take an intervention on that point?
Hugh Henry:
Lab
I will give way after I finish the next section of my speech, which is on the same issue.We believe that our proposals comply with the European convention on...
Phil Gallie:
Con
The question that I intended to ask about the ECHR has been answered, but other ECHR aspects arise, particularly in relation to the penalties that will be im...
Hugh Henry:
Lab
That is a new ECHR argument that has not been raised with me before, but we are convinced that the bill is ECHR compliant. Ministers have satisfied themselve...
Mr John Swinney (North Tayside) (SNP):
SNP
Will the minister give way?
Mike Rumbles (West Aberdeenshire and Kincardine) (LD):
LD
Will the minister take an intervention?
Hugh Henry:
Lab
I give way to Mike Rumbles.
Mike Rumbles:
LD
I am aware that the maximum compensation level rose from £1,000 to £5,000 recently. Why did the minister choose to increase the level to £20,000? I have been...
Hugh Henry:
Lab
The £5,000 figure that I mentioned in my latter point is the proposed new maximum compensation for conduct complaints. The £5,000 that I mentioned earlier, w...
Mr Swinney:
SNP
Will the minister give way?
Hugh Henry:
Lab
I will just make this final point before giving way to Mr Swinney.The funding for complaint handling will continue to be provided by the legal profession but...
Mr Swinney:
SNP
On the handling of conduct complaints, the minister said that the commission will have a power of oversight in relation to conduct complaints that have been ...
Hugh Henry:
Lab
That is a fairly substantial question, but I do not have time to go into the details to do it justice. I will write to Mr Swinney on that issue and copy the ...
Maureen Macmillan (Highlands and Islands) (Lab):
Lab
As the minister knows, the public defender's role in the criminal legal aid system has been very successful in Inverness. Does he recall the correspondence t...
Hugh Henry:
Lab
Maureen Macmillan has pre-empted the next point in my speech. I recognise the concerns that she, along with Jim Wallace and others, have raised. On a number ...
The Deputy Presiding Officer (Murray Tosh):
Con
Minister, I can give you another couple of minutes.
Hugh Henry:
Lab
A great deal of work has also been done to improve publicly funded advice in Scotland. A number of changes have been made to the legal aid system to reflect ...
The Deputy Presiding Officer:
Con
A number of members who wish to speak in the debate, according to my script, and who are present in the chamber have not pressed their request-to-speak butto...
Mr Kenny MacAskill (Lothians) (SNP):
SNP
I concur with a great deal of what the minister has said. It is important to put on record at the outset that Scotland has been well served by its legal syst...
Margaret Mitchell (Central Scotland) (Con):
Con
I confirm that the Scottish Conservatives welcome and support the general principles of the bill: namely to improve the handling of complaints against legal ...
Jeremy Purvis (Tweeddale, Ettrick and Lauderdale) (LD):
LD
The relationship between an individual and his or her solicitor is very important. For many people, it will be a straightforward matter, but for other client...
Mr Swinney:
SNP
On the divide between service and conduct complaints, will Mr Purvis say a bit more about what he would expect to be in the amendments to provide the necessa...
Jeremy Purvis:
LD
I am happy to do so. In correspondence with the committee, the minister has indicated that there will be a duty on the complaints bodies—the commission and t...
Bill Aitken (Glasgow) (Con):
Con
Will Mr Purvis give way on that point?
Jeremy Purvis:
LD
I am anxious that I may be over time.
The Deputy Presiding Officer:
Con
You are over time. I should have called one minute, one minute ago.
Jeremy Purvis:
LD
I am grateful for that and for the fact that I cannot give way to Mr Aitken. On the independence of the profession, we are rightly proud, as Mr MacAskill sai...
Mr David Davidson (North East Scotland) (Con):
Con
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 respons...