Seòmar agus comataidhean

I thank Paul O’Kane and Tess White for their amendments, which I am happy to support. However, as I said, we will have to ensure at stage 3 that the revised provisions work within the wider legislation.

Amendment 27, by agreement, withdrawn.

Amendments 28 to 37 moved—[Siobhian Brown]—and agreed to.

Schedule 1, as amended, agreed to.

Section 49—Powers of the Scottish Ministers to intervene

Amendment 309 moved—[Siobhian Brown]—and agreed to.

Section 50 agreed to.

The effect of amendment 252 is to require an accredited regulator to review its regulatory scheme if directed to do so by the Lord President. It removes from the bill ministerial involvement in triggering the review process.

A regulator also has the power to initiate such a review itself. Where it does so and proposes a revision, amendment 251 requires it to provide a report of the revision to the Lord President, who can approve the revision, not approve it, or direct another revision to be made.

Amendments 253 to 259 and amendment 261 are consequential on the removal of the role of the Scottish ministers from the process.

Amendment 260 gives a new power to allow the Lord President to comment on an accredited regulator’s proposed revisions to its regulatory scheme and direct the regulator to take account of such comments before giving the Lord President a revised report containing any revision to the scheme.

Amendment 262 places a requirement on the regulator to publish its revised scheme.

Amendment 263 gives the Lord President the power to revoke or vary any direction that they have given.

I move amendment 251 in my name and ask members to support my other amendments in the group.

Amendment 251 agreed to.

Section 33—Review of regulatory schemes

Amendments 252 to 263 moved—[Siobhian Brown]—and agreed to.

Section 33, as amended, agreed to.

Section 34—Revocation of acquired rights

Amendments 264, 266, 265 and 267 to 269 moved—[Siobhian Brown]—and agreed to.

Section 34, as amended, agreed to.

Section 35—Replacement regulatory arrangements for authorised providers

Amendment 270 moved—[Siobhian Brown]—and agreed to.

Section 35, as amended, agreed to.

Sections 36 and 37 agreed to.

Section 38—Overview of Part

I thank Paul O’Kane for his comments. I know that the bill has been on a bit of a journey since it was introduced in April 2023. When we went into stage 1, committee members wanted to see all the amendments being made at that stage, so I hope that members will now appreciate the amount of work that has had to be done and the discussions that we have had with the judiciary and the Lord President to get us to where we are today. Thanks to my officials, a lot of work has been done in the background, and I think that we are in a better place today than we maybe were at this time last year. I thank Paul O’Kane for his comments on that.

Tess White asked about the SLCC’s comments on amendment 40. There has been a lot of engagement with stakeholders during the bill process. The purpose of amendment 40 is to clarify that, under section 3, the duty of the regulatory authority to exercise its regulatory functions in a manner which is compatible with the regulatory objectives and is considered the most appropriate to meet those objectives is not an absolute duty. The regulatory authority need only carry out that duty as far as practicable. The effect of amendment 40 will be to insert the words “so far as practicable” into section 3(1) of the bill, so that a regulatory authority need only apply the regulatory objectives so far as practicable. Amendment 40 reflects many discussions with the Law Society to get agreement and that is the conclusion that we have come to.

Yes, certainly. Amendment 41 makes it clear that the requirement to exercise regulatory functions in a way that contributes to sustainable economic growth applies only to the extent that to do so would not be inconsistent with the regulatory objectives, rather than, as the bill requires at present, only to the extent that it would not be inconsistent with the exercise of regulatory functions. The amendment addresses the Law Society’s concern that it is circular and confusing to require the exercise of regulatory functions only to the extent that that is not inconsistent with the exercise of regulatory functions.

Amendment 41 makes section 3(4)(b) clear that the duty to exercise regulatory functions in a way that would help to achieve economic growth applies only to the extent that that is not inconsistent with the regulatory objectives as set out in section 2(1).

Amendment 42 adds the Scottish Solicitors Discipline Tribunal as a named regulatory authority in section 3(5), which means that, as a regulatory authority, the SSDT is subject to the duties that are set out in section 3. Those duties relate to how the regulatory objectives are applied and to other regulatory authorities, including the Lord President and category 1 and category 2 regulators.

Yes, after engagement, we decided that amendment 40 is the right way forward.

Amendment 1 agreed to.

Amendments 2 to 4 moved—[Siobhian Brown]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Regulatory objectives

Amendments 38 and 39 moved—[Siobhian Brown]—and agreed to.

Section 2, as amended, agreed to.

Section 3—Application of the regulatory objectives

Amendments 40 to 42 moved—[Siobhian Brown]—and agreed to.

Section 3, as amended, agreed to.

Section 4 agreed to.

Section 5—Power to amend the regulatory objectives and professional principles

Amendment 43 moved—[Siobhian Brown]—and agreed to.

Section 6—Meaning of “legal services” and “legal services provider”

Amendments 44 and 45 moved—[Siobhian Brown]—and agreed to.

Section 6, as amended, agreed to.

Section 7—Meaning of regulatory functions

Amendment 46 moved—[Siobhian Brown]—and agreed to.

Section 7, as amended, agreed to.

Section 8—Regulatory categories

Amendments 47, 522 and 466 will make the necessary changes to legislation to reflect the change of name of the Association of Commercial Attorneys to the Association of Construction Attorneys. The association sought that change following the introduction of the bill, and that was approved under section 42 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Schedule 1 of the bill would make a variety of changes to the Solicitors (Scotland) Act 1980 with respect to the Law Society becoming a category 1 regulator and the move to entity regulation.

Amendments 5 to 37, with the exception of amendments 15, 24 and 27, are minor or consequential modifications to part 1 of schedule 1 and relate to the Law Society’s functions.

Amendment 24 removes paragraph 22 from part 2 of schedule 1 of the bill, because it is no longer required.

Amendments 412, 413 and 507 make consequential amendments, following a change of name in the bill from the “guarantee fund” to the “client protection fund”. Amendment 11 allows the client protection fund to provide grants, as well as loans, to judicial factors appointed, in order to mitigate the risk of any further pecuniary losses being suffered by the clients of such a person by reason of dishonesty. The amendment reflects engagement with the Law Society, which sought that addition.

Paragraph 6(6) of schedule 1 inserts a new section into the 1980 act to enable the Scottish ministers to, by regulations, adjust section 43 and schedule 3 of the 1980 act in respect of the circumstances when claims can be made and the maximum amount of any grant payable, and in connection with administrative matters.

Amendment 15 restricts the exercise of that regulation-making power only to those cases in which the Scottish ministers have received a request from either a regulator, the Lord President or the consumer panel to do so. Before making such a request, the requester must have consulted the regulatory committee, the Lord President and the consumer panel and must also have secured the Lord President’s agreement to making the request. The provision sets out what information must be provided to the Lord President when seeking their agreement and requires the requester to publish certain documents.

Amendments 461 to 465 make minor and consequential modifications to enactments in connection with regulatory objectives, professional principles and new regulators in part 1 of schedule 3 of the bill.

I move amendment 47 in my name and ask members to support the other amendments in the group.

Amendment 47 agreed to.

The sections on special rule changes relate to the practice rules and provide regulators with the powers to waive practice rules in defined circumstances for the purpose of promoting innovation or avoiding a regulatory conflict by removing an unnecessary rule or making a rule less onerous, where a regulator considers that to be necessary or appropriate. The waivers are not intended to be permanent, so the bill incorporates transparency and accountability to the Lord President in the process.

The intention of my amendments in the group is to retain the system of special rule changes that are set out in the bill as introduced, but to remove some elements, including the requirement to produce a dedicated report every year, and to introduce more flexibility in other areas in response to concerns that have been raised by the Law Society. The proposals for changes were reached following engagement with the Law Society, which feels that some provisions in sections 21 to 24 do not allow for enough flexibility in relation to the granting of waivers.

Amendment 179 will add to the conditions that are already set out in section 21 a condition that a regulator can give a direction to its member or members “only if” the regulator

“is satisfied the direction is compatible with the regulatory objectives.”

Amendments 180 and 181 will add additional circumstances in which a direction may be given—that is, where the regulator considers that a direction is

“necessary or appropriate in the circumstances.”

Amendment 182 provides that a direction may not disapply or modify a requirement under the bill “or any other enactment”. That will ensure that regulators will continue to meet their obligations in respect of the provisions in the bill or any other enactment.

Amendments 185 and 186 will add to the list of things that a direction must specify, including the period of time for which the direction is to have effect. Amendment 188 will remove the requirement that a direction ceases to have effect after five years.

Amendment 183 will limit the duty of a regulator to consult the Competition and Markets Authority before giving a direction that could restrict, distort or prevent competition to a significant extent to circumstances where the direction that is being given is for the purpose of enabling a new or alternative way of providing or regulating legal services to be piloted.

Amendment 184 will make changes to the bodies to which a copy of a direction is to be given and in what circumstances.

Amendment 187 will place a new requirement on a legal services provider to whom a direction relates to inform the regulator of any changes in circumstances.

Amendment 189 will limit the circumstances in which the Lord President may revoke a direction to the directions that have been given by a regulator, on the basis that it was desirable for the purpose of enabling new or different ways of providing or regulating legal services to be piloted. Amendment 190 will remove the duty to give notice of doing so to the Scottish ministers.

Amendment 191 will remove section 23 of the bill, with the effect that the regulator’s duty to prepare a report on each direction will be removed. Amendment 194 will make a consequential change to section 24. Section 24 of the bill requires a regulator to establish and

“maintain a register of ... Directions”

given under section 21 and sets out what documents the register must contain.

Amendments 192 and 193 will remove the need to include a copy of the application for, or application to amend, the direction.

Amendment 196 will add a requirement to specify

“whether the direction is to have effect for an indefinite period.”

Amendment 195 will make a technical change to denote the placement of the new subparagraphs of section 24(2)(b).

Amendments 197, 198 and 199 will make minor technical changes.

Paul O’Kane’s amendments 543, 544 and 545 would remove most of the special rule changes provisions—sections 21, 22 and 24—from the bill. Unfortunately, I cannot support them. Mr O’Kane’s amendment 556, which is to be debated with group 12, would not be a full replacement for the special measures approach that will be taken through sections 21 to 24, because it would apply only in relation to legal businesses, and not to all legal services providers. That would leave a gap in respect of the Faculty of Advocates and the Association of Construction Attorneys.

The provisions apply not only to the Law Society but to all current and future regulators of legal services in Scotland. The provisions would allow rules to be disregarded where that could bring innovation that could benefit consumers or make a rule less onerous for a legal services provider. The Lord President and the Law Society have been consulted on the Scottish Government amendments. I have listened to the Law Society’s comments and I have sought to address its concerns.

I also consider it important to retain transparency and oversight by the Lord President, following engagement with the senior judiciary. The senior judiciary consider that it is appropriate for the Lord President to have oversight of special rules changes and to have powers to revoke certain types of directions.

I will move amendment 179 and I ask members to support my other amendments in this group. I ask Mr O’Kane not to move his amendments 543 to 545. If he does, I urge members not to support them in favour of retaining the special rule changes arrangements in the bill.

I move amendment 179.

Amendments 455 and 456 amend respectively the new offences of taking or using the title of lawyer, or of pretending to be a regulated legal services provider. The amendments will increase public protection with regard to the term “lawyer”, as false use of the term will now be an offence without also having to commit intent to deceive. Likewise, a person can no longer falsely advertise that they are regulated.

Public polling by the Government and the Law Society has shown support for the title of lawyer being given the same protection as solicitor. That was considered important in order to protect the consumer, who might not understand the distinction between the two when seeking legal services from a regulated professional.

The committee has also heard anecdotal evidence of solicitors being struck off and subsequently providing unregulated legal services to the public under the title of lawyer. We view that there is a public protection concern in such cases.

Amendment 457 makes changes to section 84 to make it an offence for a person who is not a member of the Faculty of Advocates to, without reasonable excuse, take or use a name, title, addition or description implying that the person is a member of the faculty. Currently, a person commits an offence only if the person pretending to be an advocate does so with intent to deceive, and the amendment means that there is no longer any need to prove intent to deceive for the offence to be committed.

Amendment 250 widens the offence of pretending to exercise acquired rights to include any false claim of authorisation without a reasonable excuse, not just those made with the intent to deceive.

Amendment 458 alters the power for the Scottish ministers to make regulations to amend section 32 of the 1980 act to make provision for, or in connection with, its being an offence for an unqualified person to draw or prepare certain documents or provide certain other legal services.

Instead of being able themselves to initiate the regulation-making power, Scottish ministers will be able to exercise such a power only following a request to do so from the Lord President, a regulator or the consumer panel. Prior to making a request, the requesting body must consult the bodies in the list other than itself and secure agreement with the Lord President. The amendment seeks to add an approval mechanism for the Lord President before the Scottish ministers can seek to make regulations in that area.

I move amendment 250 in my name and I ask that members support all amendments in the group.

We do not have a timescale for that at the moment, because we are still engaging with all the organisations that are involved. It is a work in progress.

Would you like me to set out what the recommendations on the victim contact team were and what it should ultimately look like, even though I do not have a timescale at the moment?

Thank you for inviting me to attend this meeting to discuss the Government’s commitment to reforming the victim notification scheme—the VNS. I am aware that the committee took evidence last week on our intention to use the Victims, Witnesses, and Justice Reform (Scotland) Bill to deliver the reforms to the VNS that require primary legislation, and I am also aware of the real interest and desire to ensure that victims’ needs are being met.

As the committee will be aware, through our engagement with the victims task force, the Government heard concerns from stakeholders that reflected the views of victims themselves that the VNS was not operating effectively, which is why we commissioned an independent review to ensure that the scheme was fit for purpose and that it could serve victims more effectively.

During the review, the chair, Alastair MacDonald, and the vice-chair, Fiona Young, undertook a considerable amount of engagement with justice partners, victim support organisations and victims. They also considered international examples of victim notification. The review report was published in May last year, and it contained 22 recommendations, some of which comprise several sub-parts, that were rooted in that substantial engagement.

The VNS is complex, and it covers three separate schemes. Two of those relate to the criminal justice system, both of which are effectively identified by the length of the offender’s sentence. The third scheme is for victims of mentally disordered offenders, which is the term that is used in the review. The review recommendations cover all three schemes.

Scottish Government officials engaged with justice partners and victim support organisations to discuss in detail the recommendations to inform and develop our response to the review, which was published in October. The Government agreed either fully or in principle with the majority of the recommendations, including the central proposal for creating a victim contact team.

Some of the review’s recommendations are aimed specifically at justice partners, some are for the Government and others are for the Government to lead in collaboration with partners. Taken together, we anticipate that the recommendations will require a mix of legislative and administrative changes.

At the time of publishing our response to the review, I made it clear that progressing the reforms is a priority for the Government, and that we would use the opportunity of the Victims, Witnesses, and Justice Reform (Scotland) Bill to ensure that the reforms that are needed to be taken forward through primary legislation could be done at pace. However, I acknowledge that that will be a new part of the bill, so I intend to limit the number of amendments to those that we consider to be essential for the legal underpinning of VNS reform.

I need to be clear that we are at the very early stages of reforming the system, building on the extensive consultation that took place with justice partners and victim support organisations after the review’s report was published, which informed our response.

Reforming the scheme is about ensuring that it works well for victims, and I am aware that the victim notification scheme can support victims only to a certain extent. It is not an absolute remedy for traumatic experiences. The concluding sentence of the independent review reflects that. It says:

“a human, trauma-informed and personalised process ... can go some way to help victims”.

Improving the VNS is part of our wider commitment to transforming how justice services are delivered, which includes putting at the heart of the system the voices of victims and a trauma-informed approach. The reforms will put the needs of the victims firmly at the heart of the notification scheme. By increasing the information that is available to victims, improving communication across justice agencies and making the system more accountable, we can ensure that the scheme continues to be as effective and trusted as possible.

Reform is about ensuring that the scheme works well for victims, which is, I think, what we all want to achieve. We share the vision in the conclusion of the review report, which, as I have already mentioned, is to have

“a human, trauma-informed and personalised process, which can go some way to help victims in their difficult situation”,

and we are committed to creating that with our partners.

Convener, I am pleased to be able to work on the bill with the committee and the Cabinet Secretary for Justice and Home Affairs. The bill will improve victims’ and witnesses’ experiences and strengthen their rights. I look forward to taking your questions.