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Nicky, do you have a view on that?

Would anyone who is appearing online like to add to that and talk about the experience of their own council?

I have a question about automaticity—I can never quite say that word correctly, so I apologise if I get it wrong. Debbie Horne mentioned the issue, and the committee talks about it a lot in the context of UK and Scottish social security. Has work been done on how that might happen? I understand that it is a complex process. Are there international examples of where it works seamlessly? We always hear about Estonia’s digital Government systems, which allow the free flow of information, but can you point us to any other examples?

I will wind up on the amendments.

I think that we are all trying to push towards a similar outcome in this debate, which is that there should be a process early on in the system to weed out complaints that are viewed to be

“frivolous, vexatious or without merit”

and that there should be a robust definition of that.

I point to the view of many stakeholders—not least the Law Society, which is of the view that the proposal in the bill to remove the existing eligibility test is concerning. That is because it has been an important test that has helped to do exactly what we have been debating this morning, which is to take out those unmerited complaints at an early stage. The test has been used extensively by the Scottish Legal Complaints Commission and other bodies since it was created in 2007, with almost 100 complaints rejected in 2023-24 alone. As a committee, we are obviously interested in how the processes in the bill ensure access to natural justice and ensure that people’s complaints can be heard. However, I think that we are clear that there has to be a process.

The Law Society’s view is that the removal of the early test goes against the objective of making the system simpler and ensuring that genuine complaints are dealt with quickly. That view is in contention with what the minister suggested, which is that we would achieve that objective by moving the test to the SLCC’s rules-based procedure. The Law Society’s view is that keeping the test in the legislation is the best way to ensure that the system moves quickly and that things do not become, in its words in material that it has provided, “choked off”.

My closing point is that we are talking about the same words and the same legal definitions, and about consulting broadly with a range of people to retain the processes around the

“vexatious, or totally without merit”

test. My concern is that I do not understand how taking the test out of legislation and putting it into rules retains the objective of speeding up the process. I do not see why we would move it into a rules-based system that is far more flexible if we were not going to change the definitions.

On that basis, I press amendment 557.

I do not intend to say too much more, other than that I think that this amendment is about ensuring that there is a provision in the bill to ensure natural justice—to ensure that people are informed about the reasons why decisions are taken. Given what we have just reflected on, there seems to again be a consensus that that is the right thing to do and that it is how we would want the system to continue to operate.

I am confused about what the difference is between ensuring that this is in statute and has a legal footing and simply putting it into the rules of the SLCC. The minister spoke about the importance of flexibility for the SLCC, but again I am not clear whether the intention would be that the SLCC would continue to provide the reasoning for decisions and that any changes to that would be subject to consultation. I am not entirely sure how removing it from statute would provide more flexibility.

As with the previous amendment, I am keen that we ensure that there is a statement of intent in the bill and that we ensure that those rules are followed because they are in statute rather than in a flexible process that would then be subject to the consultation that the minister has outlined.

On that basis, convener, I press amendment 572.

It is my intention to support most of the amendments in the group. However, I am sure that many members of the committee share my concerns about the provisions in amendment 450 that will require the SLCC to consult on its annual reports before they are laid. Given that annual reports are retrospective by definition, it seems slightly odd to have included that provision, which I think might add to the SLCC’s bureaucratic workload. I am not aware of similar organisations having to undertake such a requirement.

In winding up, perhaps the minister might focus on her intention for the requirement to consult on a retrospective report and on whether she agrees with concerns that have been raised on the requirement. Perhaps she might consider making a firm commitment to support amendments at stage 3 to remove the requirement, which would allow us to move forward today and make the other improvements to the annual report that are contained in wider amendments.

At present, I am minded to oppose the amendment, but that might depend on the minister’s responses on the requirement to consult.

Yes.

My amendments in this group seek to retain the current preliminary steps that the commission must take in respect of a complaint, specifically to determine whether it is

“frivolous, vexatious or without merit”,

and to reject it if so.

I will be clear at the outset that at this stage my amendments are largely probing, although I reserve the right to press them, depending on how our debate proceeds this morning. It is important that we have this debate, and I thank the SLCC and the Law Society of Scotland for their engagement on the issues and on my amendments.

The rationale behind my amendments relates to the efficiency of the complaints process and the system, in which, I think that we would all agree, we do not want there to be complaints that are not going to go anywhere. To speak plainly, complaints that are, by definition, vexatious or frivolous will jam up the system. Members will be aware that many complaints that are submitted fit that definition, and many of us would recognise that, from time to time, so are some of the messages in our inboxes.

It is important that such complaints are dealt with as early as possible and, if they meet the criteria, that they are disregarded to avoid causing an unnecessary backlog, additional work and bottlenecks downstream in the complaints process. That means that such complaints should be dealt with when they first hit the desk of the SLCC, rather than making their way through a longer process. I believe that it would be fairer to complainers and all parties involved in the complaints process to dismiss a complaint that is frivolous, vexatious or without merit at an earlier stage, rather than dragging it through a further onerous process, only for it to be dismissed for those reasons later.

If we accept the premise that we should keep the system efficient and deal with such complaints, the question becomes what test we should use to do that. I note the SLCC’s intent to achieve that aim by bringing forward its own criteria through the powers that it will be granted under the bill. However, I have some concerns that we have not seen the proposed rules and criteria, although I understand that they would largely replicate the current tests for establishing whether a complaint is frivolous, vexatious or without merit.

I have heard concerns about the legalistic nature of the terms that are used in the amendments, and have also heard that some people may find them offensive. I will deal with those criticisms in turn.

That the terms used are legalistic nature in nature can be a benefit, because they are well established and understood, backed up by case law and clear examples. Any new set of rules that used different terminology may not be backed up by case law and could be subject to legal challenge and, indeed, judicial review. That could be unnecessarily onerous on the commission and those who are involved in complaints.

I understand the concern that the terms are offensive. I also understand that, through the bill, we are trying to make the process more user friendly and to support the administration of natural justice. However, I suggest that individuals who are upset when they hear that their complaint has been determined to be without merit are likely to be upset anyway, regardless of what terminology is used at that point in the process, because their case has been dismissed. I again point to the well-established meanings of those terms. We should perhaps try to expand and explain those meanings rather than change them at the first stage.

From my engagement with the SLCC, it appears that it understands that argument and is leaning towards using the test for its own rules, for many of the reasons that I have outlined, although I am happy to stand corrected on that if I have misunderstood. If that is the case, it would be beneficial to keep the current rules in statute to give them backing in law as part of the complaints process.

I welcome the contributions of other committee members and the minister on the issue. As I said, depending on whether there are assurances and commitments to examine the issue further prior to stage 3, I might not press my amendments. However, changing the preliminary steps in the manner that is set out in the bill could have significant risks and unintended consequences, so there might be merit in keeping much of the preliminary tests as they are.

I move amendment 557.

Amendment 572 is a relatively simple amendment that would leave out section 54(7) of the bill. As drafted, section 54(7) would repeal section 12 of the Legal Profession and Legal Aid (Scotland) Act 2007, which requires the commission to give notice in writing to complainers and practitioners of its determination to uphold or not uphold service complaints, the steps to be taken and any reasoning for its decision.

It is contrary to the principles of natural justice that the complainer and the practitioner are not provided with written notice of the commission’s decision. It seems wholly unfair and contrary to the aims of transparency and consumers’ understanding of the complaints process if people are not told what and why something has happened to their complaint.

The SLCC might opt to continue that practice anyway, but I cannot see any good reason why we would not want there to be a requirement to do that in all relevant circumstances and instances. Even if the intent is to continue to provide statements of reasons for a commission decision, not having it in statute as a requirement opens up the possibility that the commission could, at some point, decide or find a way not to provide statements of decisions if that is what it chooses to do. That would mean that complainers and practitioners would not have recourse to understand why a decision was taken and what further avenues might be open to them.

Given that I can discern no other part of the bill that places the burden on the SLCC, the most reasonable way forward would be to maintain the current provision requiring the commission to give notice. If tweaks need to be made to section 12 of the 2007 act as a result of other changes in the bill, there could be more amendments at stage 3. For the moment, it is important that the committee sends out a clear message, in line with the principles of natural justice and transparency, that some provision remains in the bill to continue providing statements of reasons for decisions.

I move amendment 572.

I am grateful to the minister for taking an intervention. It perhaps speaks to the point in my previous amendment about understanding the difference between taking something out of legislation and putting it into rules. If we all agree with the principles that I described about natural justice and ensuring that people have a statement about why a decision has been taken, why would that measure not be included in legislation to ensure the security of that principle, because it would have legal backing? Why would we move it into rules? If the minister is confident in her assertion that the SLCC will include it in the rules, I do not see the issue with it remaining in statute.