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Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 4 May 2021
  6. Current session: 13 May 2021 to 6 November 2025
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Displaying 1489 contributions

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Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

No, that is not fair. Early negotiations are on-going regarding the issue, and we will take forward and consider all the recommendations of this committee and the lead committee, and those of the legal sector. Engagement on the matter is on-going.

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

Yes, we are engaging with all stakeholders and the legal sector as we progress the bill.

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

Having considered the feedback from stakeholders, we intend to lodge amendments at stage 2 that will introduce a requirement for the Lord President’s consent to be obtained before any regulations are made using that provision and which will narrow the scope so that it will be used in response to a request by a regulator or the consumer panel.

The provisions are necessary to ensure that the guarantee fund, which is established in what is now quite aged legislation, continues to be able to adapt to changes in the way in which solicitors operate.

Do any of my officials want to come in on that?

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

I would like to provide some context to what we are proposing by explaining how things are done in England and Wales. In England and Wales, the Legal Services Board acts as an independent regulator of the front-line regulators of solicitors, barristers and other branches of the legal profession. The LSB is accountable to the Parliament through the Lord Chancellor and is sponsored by the Ministry of Justice. The Lord Chancellor, a United Kingdom minister, has several statutory roles in relation to the Legal Services Board and the regulation of legal services within the Legal Services Act 2007. Some of those are very similar to the things that have been proposed in the bill.

I have listened to the views that the committee heard last week, and officials have been engaging with the judiciary and stakeholders.

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

It is considered that the newer regulators run the greatest risk of encountering circumstances that would render them unable to operate at short notice and create a need for the Scottish ministers to step in and ensure that their members continued to be authorised to provide legal services to the public while alternative arrangements are worked out. It was considered appropriate to separate those provisions from section 49, which also deals with situations of necessity in relation to any regulator, allowing the Scottish ministers to take action as a measure of last resort, while maintaining the requirement for parliamentary scrutiny and approval in advance of such steps. However, given the similarity of the measures in sections 35 and 49, we are exploring amendments that would bring them together in one provision that would maintain the power to take action in urgent situations, take it away from the Scottish ministers, and transfer it to the Lord President.

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

Section 41(6) has been criticised by the Law Society as preventing it from regulating legal businesses in terms of non-legal services—for example, that could involve estate agents, accountants or tax advisers. That is not the intention of the bill, and we are working with the Law Society to ensure that the introduction of entity regulation is as effective and beneficial as possible. Currently, we are exploring amendments that will make that clear.

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

The power in section 41(2) gives the Scottish ministers flexibility to expand on the regulatory matters that will be covered by the regulatory rules in order, for example, to add clarity or address unforeseen issues. Currently, that will apply to the Law Society alone as the only category 1 regulator. However, if there were more than one category 1 regulator in the future and different regulators applied rules inconsistently in a way that would have a negative effect on consumers or competition, it might be beneficial to make regulations so that regulators took a consistent approach.

We have listened to the concerns and intend to lodge amendments that will narrow the scope of the power so that a change would be made in response to a request from bodies such as the regulators or the consumer panel. That would introduce a requirement for the Lord President’s consent and for consultation with regulators and the other bodies in respect of regulations under section 41(2).

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

No, we do not.

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

I will be happy to meet you.

Delegated Powers and Law Reform Committee

Regulation of Legal Services (Scotland) Bill: Stage 1

Meeting date: 7 November 2023

Siobhian Brown

Good morning. I welcome the opportunity to make a brief opening statement about the Regulation of Legal Services (Scotland) Bill. As set out in the delegated powers memorandum,

“The overarching policy objective of this Bill is to provide a modern, forward-looking legal services regulatory framework for Scotland that will ... promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector.”

The bill seeks to implement a number of key recommendations from “Fit for the Future: Report of the Independent Review of Legal Services Regulation in Scotland” by Esther Roberton. That report’s primary recommendation of a single independent regulator resulted in largely polarised views from those in the legal and consumer landscapes. Despite that, there were many areas of broad agreement among stakeholders, including a common aspiration that any future model be transparent, open to public scrutiny and efficient, to ensure that justice remains accessible to all.

The bill is designed to take a proportionate approach that seeks to balance and deliver the key priorities of all stakeholders. As the committee knows, for each and every bill, the Scottish Government considers carefully the rationale for the inclusion of delegated powers—for example, to provide flexibility and to be able to react and be responsive to future events without having to resort to amending primary legislation. Therefore, the bill seeks to take a proportionate approach to what is provided for in the bill and what is provided for by way of delegated powers.

That said, I accept that certain delegated powers in the bill have caused concern among some stakeholders. Therefore, having reflected carefully on our discussions with stakeholders, including the senior judiciary, I intend to lodge amendments at stage 2 to address concerns about the role that the bill would give to Scottish ministers. On 27 September, I wrote to the lead committee, the Equalities, Human Rights and Civil Justice Committee, to inform it of my intentions, and I provided further information on 27 October.

I reiterate that the Scottish Government has committed to continue to work collaboratively with stakeholders in respect of the reforms and throughout the passage of the bill. I am happy to take any questions.