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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.

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.