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On the basis of further discussion, I will not be moving amendment 536A.

Amendment 536A not moved.

Amendment 536 agreed to.

Section 72—Conduct complaints: power to impose unlimited fine and removal of power to award compensation

Amendments 423 to 437 moved—[Siobhian Brown]—and agreed to.

Section 72, as amended, agreed to.

Section 73—Faculty of Advocates: complaint of professional misconduct and publication of decision

Amendment 438 moved—[Siobhian Brown]—and agreed to.

Section 73, as amended, agreed to.

Section 74—Commission membership

Amendments 439 to 441, 538, 443 and 444 moved—[Siobhian Brown]—and agreed to.

Section 74, as amended, agreed to.

Section 75—Role of the independent advisory panel

Amendments 445 to 447 moved—[Siobhian Brown]—and agreed to.

Amendment 539 moved—[Maggie Chapman]—and agreed to.

Amendment 448 moved—[Siobhian Brown]—and agreed to.

Amendment 540 moved—[Maggie Chapman]—and agreed to.

Section 75, as amended, agreed to.

Section 76—Commission reports

Amendments 449, 537 and 450 moved—[Siobhian Brown].

The minister might well be coming to these points. I appreciate what she said about the flexibility that will be afforded to the SLCC in relation to its rules, but does she recognise my concern about the body of law around the specific terms? Is she concerned that, if the SLCC determined not to use those terms, that might cause significant challenges and further slow up the process? How does she intend to deal with that issue, given that the terms will not be in statute?

[Inaudible.]

Will the minister take an intervention?

I am grateful, convener; folk might be glad to know that this may well be the last time that the committee will hear from me this morning.

I will speak briefly to Tess White’s amendments, which I support in principle. I welcome many of the amendments in the group, in particular the minister’s amendments, and specifically amendment 372, which requires the SLCC to establish the register. However, I agree with some of what we have heard, in particular that it is odd to have an opt-in form of regulation, given that signing up to the register that is created will not be mandatory. The risk is that that could expose clients who have no further recourse. In addition, I am unclear as to what the incentive would be in that regard. I appreciate some of what the minister has said, but where is the incentive for firms to sign up to the register in order to ensure that it is a meaningful tool with a purpose?

I note, and recognise, the SLCC’s concerns about how the register might work in practice if it was mandatory, and the scope of what it would have to capture. However, as Tess White said, the committee made it clear in our stage 1 report that we wanted the Government to consider creating a mandatory, rather than voluntary, register. I add my voice to that call, in respect of what we might consider for further discussion in advance of stage 3.

I will briefly speak to my amendments in the group, which are amendments 644, 645 and 650. The amendments would give powers to relevant professional organisations that were considering initiating a complaint to compel practitioners, firms or authorised legal businesses to provide information and documents relating to a matter that was under consideration for a complaint.

At present, regulators can require information only once a complaint has been received, which means that they are unable to require practitioners and authorised legal businesses to provide them with information in circumstances in which they might wish to consider initiating their own complaint.

Members will be well aware of instances in which regulators have been urged to be more proactive in safeguarding consumers and addressing concerns that have been raised. Many of us will have had casework in that regard. Currently, there is an immediate stumbling block, in that regulators cannot access documents until a complaint has been initiated. Without having access to information that shows the need for a complaint, it can be a waste of time or a wasted opportunity to initiate a complaint.

There is an opportunity to allow regulators to function properly as regulators by finding out whether there is a complaint to be pursued. That could lead to enhanced consumer protections by allowing regulators to discover instances of concern earlier, to initiate complaints based on more evidence earlier and, thus, to intervene on behalf of consumers at a much earlier stage. Without my amendments, regulators might still be seen as being too reactive and not proactive enough in protecting the interests of consumers and dealing with instances of poor conduct.

It has been interesting to hear what the Government has to say on the principle. I accept that the minister recognises the principle and intent of my amendments and this discussion, and that she is keen that there be the opportunity for a more proactive approach in relation to compelling the provision of information, as we have debated.

I suppose that it might be a chicken-and-egg situation. If we give regulators the power to make their own complaints, how will they know whether to pursue a complaint without the information that they require? Therefore, I think that the issue should be further explored and discussed in advance of stage 3. On that basis, I am keen to continue to engage with the minister, if she is willing, in order to fully understand the impact of her amendments, where there might be gaps and whether we could do something in advance of stage 3.

I thank the minister for her engagement on the issue of disclosure of information to the public, specifically on amendment 536 in her name.

The improvements that we are making to the bill and legal complaints processes, such that information will finally go out into the public domain on on-going complaints, are welcome, both to protect potential consumers looking to engage services and to increase transparency around on-going issues.

The minister will be aware of my engagement on amendment 536 and of my early decision not to lodge similar amendments while I took advice and engaged with stakeholders on the question of whether that amendment would be sufficient to meet everyone’s desired intent. I believe that amendment 536 provides an assurance relating to disclosure of information, which is, as I have said, important.

However, I have lodged amendment 536A in order to make it absolutely clear that information may be disclosed under the new section 51A that would be created by amendment 535. The stakeholders that I have engaged with believe that a small addition to the Government’s amendment would provide sufficient cover for the disclosure of information about complainants and would ensure that that is absolutely clear. That fix would mean that some of the existing restrictions on the disclosure of information, which are found in section 52 of the 2007 act, would not apply when information is being disclosed under the public interest test, as set out by the minister’s amendment 535. The last thing that we would want to do would be to create a power to disclose information when that is in the public interest, only for that power to be constrained and made potentially meaningless by restrictions in section 52 of the 2007 act. I hope that members will see the value in supporting a technical fix to ensure that the public interest disclosure power works well to improve the transparency that we all want to see.

I am grateful for the opportunity to speak on the group and on my amendment 639 in particular. I thank the minister for her comments and for accepting the amendment. It essentially does what everyone’s amendments in the group intend to do, which is to ensure that there is fair recovery of costs and a polluter pays principle in regard to the approach taken when additional costs are incurred in pursuit of regulatory objectives. Obviously, the issue relates to the behaviour of certain individuals and the way that the Government can legislate to support the reclamation of costs.

It is clear that Tess White’s amendment and a number of amendments in this group merit further discussion when we progress to stage 3, but agreeing to my amendment at this stage would begin that process.

Before we move into lengthy consideration of the amendments that are before us, I thought that it would be helpful to put on the record some general comments about this section and the ministerial powers that apply to the amendments in this group, so that I will not have to repeat my comments in any of the subsequent groupings.

For those of us on the committee who heard the stage 1 evidence, it was clear that the bill did not start out in a place of consensus. There was much concern about the warnings that came from respected organisations, including the Law Society, the Faculty of Advocates and the senior judiciary, that were in many ways unprecedented. Such was the level of concern about the threat to the independence of the judiciary from the imposition of ministerial powers that it seemed that the bill was, at points, quite significantly flawed and that it would require subsequent amendments, such as those that are before us. In saying that, credit should be given to the minister and the team of officials for the work that they have done on the amendments over many months, and for their work with stakeholders to sufficiently address risk.

I also thank the minister for her constructive engagement with me in listening to many of the concerns about those aspects of the bill and, more widely, for offering a collegiate way of working to address some of the issues. I hope that we will continue with that collegiate approach throughout stage 2 consideration and into stage 3.

I still have some areas of concern in the bill more widely but it would not be appropriate for me expand on those now. To avoid dragging on for too long, I just confirm my support for amendments in the group and say that I am keen to continue the debate as we move through the remaining amendments. I am grateful to you, convener.

I put on the record my thanks to the many stakeholders who provided briefings in advance, some of which were referenced by Tess White, including the Law Society of Scotland, the SLCC, the Faculty of Advocates and others. I also thank them for producing their briefings quickly since last week’s lodging deadline.

I do not support Tess White’s amendments in this group, although I appreciate that they are probing in nature. They allow us a useful opportunity to discuss and debate why the Government alighted on maintaining the current divisions for regulatory duties, rather than establishing a new regulator. However, I do not support the proposals in the amendments to shift all complaints proceedings to the SLCC, for many of the same reasons why the committee arrived at its view in considering the evidence that was presented to us at stage 1.

We recognise that there are significant challenges in the complaints system. I think that everyone acknowledges that it is complex and that it can be inefficient and slow, which can create a bad experience for consumers of legal services who wish to raise complaints. Through its genesis, the bill tries to go some way in addressing some of those issues. I and many other stakeholders that I have spoken to want change to be effected sooner rather than later. However, to go through a lengthy process that would last for many years and be at public expense in order to transition the functions that are currently conducted by the Law Society of Scotland and the Faculty of Advocates to a single body could result in significant delays for consumers, who need improvements right now.

Even if we had chosen to consider what is proposed in the amendments at an earlier stage of the bill’s conception, we would not have got some of the noticeable benefits that are now coming through. As I said, putting new structures in place and placing new duties on the SLCC would require a breadth and depth of reform and change to the SLCC, not least to its resource and staffing.

I am interested in the fundamental principle that membership organisations should have an obligation to monitor, investigate and, if necessary, take action on their members’ conduct. That is, in essence, what we are debating today. We should ensure that organisations such as the Law Society feel that they can exercise their duty to look after and ensure the highest conduct standards of their members, in much the same way as we would expect regulation of members of other bodies in public life. I posit that political parties are an example of where the regulation of members is ceded to the party.

I do not want to go on at length, because many of these issues have been debated already and covered in the stage 1 report. However, there are many reasons why the broad solutions to the challenges that are faced in legal services regulation right now, which are alighted on in the bill, are preferable to the ones that are outlined in Tess White’s amendments.

I do not want to go over old ground, so I will leave my comments there. However, if we return to the issue at stage 3, it will be important to continue to recognise the things that I have outlined.