 Welcome to the twenty-fourth meeting of the current sessions six of the Equalities, Human Rights and Civil Justice Committee. We have received no apologies this morning, however, we are joined by members remotely. Agenda item one is the Regulation of Legal Services, Scotland Bill. This is our fourth evidence session on the regulation of the legal services Scotland Bill. I refer members to papers 1 and 2 and I welcome to the meeting Bill Alexander from the Association of Construction Attorneys. Roddy Dunlop, KC Dean of the Faculty of Advocates and Morag Ross, KC also from the Faculty of Advocates. Rachel Wood, executive director of the regulation of the Law Society of Scotland and David Gordon, who is a lay convener to the Regulatory Committee of the Law Society of Scotland. Darren Murdoch, president of the Scottish Law Agents Society and Andrew Stevenson, who is the secretary to the Scottish Law Agents Society, lots of my fills there, but we got through it, so welcome to the panel. It's nice to see all of you. Before I ask you to make some brief opening remarks, as you can see, we have seven of you and we're delighted to have you. The panel will have questioning, so I would ask our witnesses this morning to be succinct and to answer the questions that are put to them. I also know that there are two representatives from bodies as well, so you may wish that only one of you takes the relevant question that is most relevant to you. I would like now to invite witnesses to make some brief opening remarks, should they wish to do so, of course. As I stated, because we have two representatives from each of the faculty, Law Society and Law Agents Society, I will leave it up to you to decide who offers the opening remarks. That being said, I will start with Bill Alexander, please. Good morning. Thank you for this opportunity to take part in the committee's consideration of the Legal Services Reform Bill. Whilst we're excluded from the Roberton review, we support all of the proposals that are in the report. By way of some background, the Association of Construction, formerly commercial attorneys, is the only body to have successfully applied for the right to practice in the Scottish courts under the 1990 Law Reform Act. There have been no complaints against any of our members in over 12 years. We support much of the current bill, however we do have concerns about sections 25 to 27 and the process for anyone making an application to practice in court. As far as we can ascertain, there appears to be little difference compared with the original sections 25 to 29 of the 1990 Law Reform Act. We believe that it is a token section of the bill to replace the existing primary legislation, but, in our opinion, the Scottish Government has not actually supported more choice in the provision of legal services. From our perspective, the application process in gaining our court rights was challenging and, at times, traumatic. We very much doubt that this experience would encourage anyone else to apply unless there is an independent support structure and that the recommendations of the Competition and Markets Authority on competition restrictions are not ignored. If you compare Scotland with England, there are a number of organisations that have applied successfully for the right to practice in court, unlike in Scotland. Whether that is simply due to the size of the market or other factors is something that might be considered. In consideration of the proposed bill, we should note that we should not lose sight of the fact that legal services need to be affordable and that any organisation having a dominant position in the marketplace will not encourage real competition. However, we also have to accept that we are a very small organisation and that our views on the bill have to be taken in that context. I will move on to the law society. Good morning, convener, and thank you for this opportunity to give evidence to the committee today. My name is David Gordon. I am the convener of the Law Society of Scotland's Regulatory Committee. I should say up front that I am not and never have been a solicitor. Indeed, I am one of over 50 non-solicitors who serve on regulatory committees of the Law Society, setting standards and taking decisions in the public interest. I am joined this morning by Rachel Wood, our Executive Director of Regulation, who leads the staff team delivering the core regulatory work of the society. This bill is the culmination of nearly a decade's work by the Law Society. It is important to remember that this legislation has come not because of scandal or significant market failure but because we went to government in 2015 to press for major reforms to update and modernise the current law, much of which is over 40 years old. There is a great deal in the bill that we support and welcome, not least because we suggested it, but as our submission details are important reforms missing from the bill and areas in which we feel that the Government has not quite got the detail right. All of that can, we hope, be addressed as the bill moves forward. The key areas of concern for us and others are those sections of the bill that give Scottish ministers sweeping new powers of control and intervention. Those have serious implications for the rule of law and the independence of Scotland's legal profession. We are obviously pleased that the Government has now recognised the bill needs to change, noting the recent letters from the minister. However, until we have sight of the specific amendments proposed to the bill, it is impossible for us to offer a definitive view on whether the new provisions would allay any or all of the concerns. It is obviously good that the Government is looking to move on those issues. We look forward to giving evidence to the committee. Good morning. I am Roddie Dunlop, KC Dean of the Faculty of Advocates, and with me this morning is Morag Ross, KC, who co-ordinated the faculty's response to the stage one consultation on the bill. Faculty of Advocates, as you will know, has been part of the regulation of the bar in Scotland, the Public Office of Advocates in Scotland since 1532. Faculty is grateful for the opportunity to assist the committee in its consideration of the bill. Both today and going forwards will look forward to working co-operatively with the committee in this regard. The Roberton report was presented as long ago as October 2018. That report itself was far from uncontroversial, as Ms Robertson acknowledged. Many of the eminent lawyers who worked with her in the review were unable to support the conclusions in her report, which were accordingly those of Ms Robertson alone. That then led to a lengthy series of discussions, with faculty responding twice to the report itself in 2019. Many other bodies also responded most notably, as we may well discuss, the senior judiciary in May of 2019. They then followed a formal consultation period, running over three months at the end of 2021. Again, faculty responded in detail, as did many other bodies again, including the senior judiciary. On the back of that consultation, the draft bill that we are here to discuss today was published. Many aspects thereof were welcomed in the profession and beyond. The bill seemed in many ways to have struck the right balance between ensuring and improving the proper regulation of the legal profession on the one hand and maintaining the independence of the profession on the other. Against that backdrop, I confess to some surprise and indeed some concern to find that the first questions that the committee wishes to explore today centre around the question of a potential new regulator of the legal profession. That proposal was discussed in inordinate detail in the various responses to which I have already referred. The proposal was opposed by all aspects of the legal profession, with the exception of one or two solicitors and the Association of Construction Attorneys. It was compellingly rejected as unwarranted and unwise by the senior judiciary. Doubtless as a result, it finds no place in the draft bill. Accordingly, some of the questions that are to be posed today focus on a ship that was thought to have sailed long ago. As we may come on to discuss, the creation of a new regulator cannot be effected by the amendment of the current bill. Rather, it would involve returning to the drawing board and repeating the exercise ongoing since 2018. That would remain as has been repeatedly emphasised by the senior judiciary, unwarranted and unwise. It would require costings and regulatory impact assessments that have not been undertaken because they were not necessary. Faculty expresses the earnest hope that the improvements in the bill will not now be derailed by something that was rejected in the drafting of and is thus not contained in the bill that we are here to discuss. That bill contains numerous improvements designed to improve the system, and those are welcome. There are unwelcome surprises, again, as we will discuss in sections 5, 19 and 20. Those are matters of concern that faculty has already expressed to the delegated powers and law reform committee. In closing, convener, it is in the interests of everyone that the legal profession is and is seen to be properly and independently regulated, but also that it is and is seen to be properly independent. The bill contains many improvements in that regard, and faculty looks forward to working with the committee in order to allow those improvements to be implemented with minimal delay. I would like to move on to the Scottish Law, Agents Society, please. Good morning, convener and fellow members of the committee. My name is Darren Murdoch. I am a Solicitor and President of the Scottish Law Agents Society. My colleague Andrew Stevenson is Secretary of the Scottish Law Agents Society. Scottish Law Agents Society has no regulatory function whatsoever. We were founded by Royal Charter in 1894 and we simply seek to support our members. In terms of the Regulation of Legal Services Bill, I welcome the opportunity to rectify existing regulatory issues, and I recognise there are certain positive changes proposed in the bill. However, I am of the opinion that there are certain sections in the bill contrary to the rule of law, which is a very risk to the principle of democracy. The most contentious sections in the bill relate to direct Scottish Government ministerial intervention to regulate the legal profession. This is a clear potential breach of the separation of powers. Although the proposed powers may never be used, the very existence of those proposed powers is perhaps a risk to democracy. It is remarkable how the regulatory objectives have evolved from the legal services Scotland Act 2010, whereby the regulatory objectives stated within section 1A of the 2010 act states the purpose of the act is to support the constitutional rule of law, whereas it would be perhaps more apt to narrate within section 1A of the current bill, the purpose of the bill is to diminish the constitutional rule of law. That is deeply concerning. Turning to the opportunity to improve the regulation of legal services within the bill, this is where I support the bill. A recent profile of the profession study highlighted nearly two in every three solicitors have experienced mental health problems in the last five years. A previous profile of the profession highlighted the near majority of solicitors were contemplating leaving the profession within five years. I know first hand that regulation and the lack of access to justice for solicitors in relation to the appeals process is a cause of stress to solicitors. In summary, I seek a common sense approach to regulation that is fair to all, cost effective and does not diminish the rule of law. We will now move to questions. We have quite a few areas to cover. As I indicated earlier, I would encourage witnesses to be succinct and to respond to the substance of each question. On that note, we will crack on. I am going to bring in Paul O'Cain, please. I am very grateful, convener, and good morning to the panel. I wonder if we can begin with issues around regulation or proposed regulation, and perhaps following on from Mr Dunlop's comments on what the bill is not seeking to do in the view of the majority of the panel in relation to independent regulation. I would be keen to perhaps understand that further, because we have heard evidence in previous weeks around the support for independent regulation to some degree, although you have contended that it is not within the scope of the bill. I wonder if you might be able to expand slightly on the argument of why you feel that it is not in scope of the bill and that the ship is sailed as an expression that you had used. I am keen to understand the thinking around that. Certainly. I am aware of the need to obey the injunction to be succinct, but that question does not necessarily admit of a succinct answer. I am lost to go over old ground on the issue, and I would refer the committee back to the lengthy paper that was submitted by faculty by law society, in particular by the senior judiciary on the point. However, if I am trying to get to the core, I start by recognising whenever faculty responds on this issue, we are accused of self-pleading. We would say that, wouldn't we? That is why I lay such stress on the responses from the senior judiciary. When the core question is what is needed to preserve and maintain independence of a properly regulated legal profession, who better to listen to than the judiciary, a judiciary that is and has for centuries been seen around the world as a paragon of independence? Without wanting or having the time to discuss in detail the various points, I would try and stress the following. Firstly, as was noted by the senior judiciary in 2019, the single independent regulator proposed by the Roberton report, accountable to Audit Scotland and to the Scottish Parliament, would serve only to destroy the independence of the legal profession and in turn impinge upon the independence of the judiciary. Secondly, it is important to bear in mind what is entailed in the regulation of the legal profession. What faculty does just now is cradle-to-grave regulation of the Public Office of Advocate. By delegation from the Court of Session itself, faculty is responsible for deciding entrance requirements, training, examination, continuing professional development and disciplinary matters. It would require a herculean effort to set up a new regulator to take over what is done by faculty now, all without any cost to the public or the public purse. Faculty covers all of that. I find it very difficult indeed to see how the specialist knowledge, expertise and resources of faculty there for centuries could be replicated by a new regulator. I do know that it would be very expensive to do so. Thirdly, and I have touched on this already, we have regulated or been part of the regulation of the Public Office of Advocate since at least 1532, without any concerns as to efficacy or independence. That is hardly surprising given the safeguards that are in place. Fourthly and finally, those safeguards are that we are not actually talking about in the present scenario. We are not talking about self-regulation when one understands it properly because of the checks and balances that are in place. SLCC has oversight in the form of handling complaints. A complaints committee is four people, two of whom will be lay persons. A discipline tribunal will be six persons, three practicing advocates, two lay persons and an independent retired judge to chair the process. Most crucially, and a point that the Roberton report and its supporters have never truly grasped, the legal profession in Scotland is and has always been, unlike many other countries who have had to bring in independent regulation, we are and have always been independently regulated. That comes from the role played by the Lord President as chair of the College of Justice, and that has been the case since the act of 1532. He acts as the independent regulator of the profession. We can make no regulatory change without his approval or his direction. Accordingly, the obvious response to cries for independent regulation is, we have it already. Simply, Scotland was ahead of the game in that regard. If I may add a brief supplementary comment specifically addressing your question, insofar as it is related to the scope of this bill, I think that the answer has to be no. It could not be within the scope of the bill to go backwards, to introduce this fundamentally different concept within the legislation that is proposed. You would have to take away all sorts of other material in this bill, which goes to the amendments of the 1980 act, which affect solicitors, but it would run contrary to the entire direction of this bill. It would be a different thing altogether. I understood your question in addition to the principle questions, also to be about the scope of this, and it is just not there. Sorry if I could just add to that in that regard. How would this committee do that? It would involve grafting on to a bill something that was deliberately and on a considered basis omitted from the bill, without knowing what would be necessary to do it, how much it would cost. It would be impossible. If this is truly something that is to be done, you would need to go back to square one. You would need to go back to the drawing board and start the consultation process again so that one could have a proper understanding of what it would entail and what it would cost and what it would mean for the profession. I am grateful for those contributions. I think that it is helpful to this committee in order to have that on the public record as well as the written statement. Indeed, in terms of trying to consider how the bill may change, it is useful to understand your view that the bill would have to be substantially rewritten in terms of trying to achieve some of what has been set out by other witnesses that we have heard from. I appreciate that the Association of Construction Attorneys has taken a different view. I wonder if I might just be able to ask how that was arrived at and what your view would be of the discussion that we have just had. We are basing our view on what has happened in England where there are independent regulators and there does not seem to be any great outcry from the senior judiciary or from the legal professions there. On that basis, we think that it would work quite well here. If I may, I think that it would work well. Perhaps it is just exploring the point about the comparison with England, notwithstanding the point that was just made about the scope of the bill, but if we are having an academic discussion, let us have the academic discussion. Rachel Wood, I saw you maybe want to come in on this. Yes, I think that there has been some conversation and some comparison with England and Wales. It is important to start by saying that there is a really significant difference between what actually happens in England and Wales and the model proposed by Esther Robertson as option one and also the proposed state intervention model currently set out in the bill. If the committee would allow me, perhaps I could explain, and I should say by way of background that before I joined the law society, excuse me, I worked in private practice in international farms which are regulated by many regulators, including the main solicitors regulator in England and Wales, the Solicitors Regulation Authority. The Solicitors Regulation Authority is the regulator of England and Wales, the SRA. It is a separate regulatory arm of the Law Society of England and Wales and part still of the Law Society of England and Wales group. Under the relevant legislation, which is also helpfully or unhelpfully called the Legal Services Act 2007, in England and Wales the power to regulate is delegated from the council of the Law Society of England and Wales to the SRA, so that's a statutory requirement, but they still hold that the power still sits with the Law Society of England and Wales. The SRA independently appoints members of its board, which is different than what we currently have in Scotland. The SRA is funded by the profession in England and Wales through practicing certificate fees and also levies of various sorts. The SRA, as is the case actually with every regulator in every sector, not just the legal sector, is staffed primarily by solicitors. Regulation of any sort tends to be a legal process that involves a lot of law, so solicitors are necessarily involved in every regulator. The SRA, more of its decisions are actually made by its staff, then is the case through delegated powers again, then is the case in Scotland, but they do have adjudication panels, which are similar to some of our regulatory committees. There are adjudication panels. The requirement is that there must be at least one lay member, but the majority tend to be solicitors on those. Are the SRA more independent currently than the Law Society of Scotland? Yes, they are, but when the bill is enacted, less minus the ministerial intervention powers, then in as much as you can compare them directly, they'll be pretty much the same. I suppose when we talk about independent regulation it depends really what we mean by independent, but if the question is, well, is the English model causing any difficulties with the independence of the profession in England and Wales, the answer to that is no, because as I've outlined it is actually remarkably similar to both what is happening now and once the bill is enacted will be more or less the same as what occurs now. I think that that is useful to have a sense of the view. I don't have anyone else who wants to add to that particular point before I ask perhaps another question. Perhaps just to add that Ms Wood has spoken about the position of the SRA that there is a similar position with regard to the bar standards board. In England there is not one regulator for legal profession unless you are thinking about the oversight role of the legal services board. There are multiple regulators as a bar standards board or CILEX, such as the Solicitor's Regulation Authority, for example. It would be quite wrong to think that the Robertson model would simply ape what is happening in England if it would not. I wonder if I can just come to Mr Murdock in terms of his submission. I think it's obviously quite concerning for a committee to hear your view on the threat as opposed to the independence of the judiciary, so I wonder if you might expand on your view of the bill as drafted and maybe that point about amendments to the bill and actually what might be required in terms of trying to deal with some of those problems. You asked for a succinct answer. Sorry, I appreciate that I'm asking very why you take such a question. I can give you a succinct answer on this particular instance. I believe that all sections within the bill relative to Scottish ministers having power over the legal profession should be admitted. I just simply don't believe there is any place in a democratic society. I don't think that it helps the profession in any way. I don't think that it helps the public as well. I just don't believe that those sections have any place whatsoever in a democratic society. Globally, people look at other countries—I've got friends internationally—that talk about Scotland and the Scottish legal system as well. If we can see ourselves as others see us to quote a certain Mr Burns, how are we going to be viewed internationally if the Scottish Government has control over the legal profession? We are fortunate to have grown up in a society that has always had an independent legal profession. Those powers might never be used. I accept that, but the fact that those powers exist may cause difficulty further down the line. I'm grateful. I just wanted to ask if there were witnesses that wanted to expand on the arguments that we have heard about a conflict of interest in professional bodies being regulators. I would say that we don't believe that a conflict of interest exists in having a professional body approach to the regulation of solicitors specifically. We believe that there is a coincidence of interest and that the model that exists of the dual role of the professional body of robust regulation on one hand and representative functions on the other exercised independently. That model is common across professions. There are many examples of that. Accountants, architects, surveyors and my own profession actuaries within the law society by law, the council can't interfere with regulatory functions. Solicitors who make up at least 50 per cent of all regulatory committees and subcommittees. The solicitor members have a strong personal and professional interest to protect the status of solicitors to ensure that education standards are high, that the right people are accredited as solicitors and likewise that if there is misconduct that they are appropriately as appropriate sanction against them. The average citizen on the street is going to find it quite difficult to see the difference between a conflict of interest and a coincidence of interest if you see what I mean. How would you reassure them? As a lay member, I'm not a solicitor and we represent half of all the membership of each of the regulatory committees and subcommittees. We bring to the party our experience of not being solicitors from being customers of solicitors and from our professional lives outside the solicitor profession. How would the law society choose between its joint professional and regulatory interests when it comes to lobbying, for instance, or providing input into draft legislation? The regulatory functions and the member support and representation functions are split within the law society. We keep a careful divide between them and make sure that they don't cross over. It is true that, on occasion, the regulatory side of the house might have a view and opinion on a piece of legislation, but that's rare and they are kept differently. If I could also take the opportunity, you asked about the perception of the consumers of legal services. I think that's a really good question. Some of what we're talking about in this committee is, of course, necessarily technical, but the interesting thing is that the law society has carried out polling usually every other year with the public. In the last few times that we've done that, the perception of trust and confidence in the solicitor's profession, which partly comes from it being well regulated, is much higher than in other jurisdictions. In Scotland, it runs at about 84 per cent. That is independent polling of the public that we undertake. It rises to over 90 per cent—I'm sorry, I can't think at the moment of the exact number—but over 90 per cent for those who have recently used a solicitor. I think also it's really important to perhaps just counter what I would refer to as a myth of self-regulation, which is where the notion of potential conflict comes from, which is that I think at a previous evidence session somebody talked about the international trend was towards independent regulation, and that is simply not, in fact, the case. The IBA is the organisation which regularly carries out an analysis of legal regulation around the world. Obviously, as you can imagine, that's a daunting task, so the last time it was comprehensively carried out was 2016, but it has not changed significantly since that point. What they found in that was that 11 per cent of the world's jurisdictions are what could be classed as independent regulators. In fact, 52 per cent were still regulated by whatever the National Bar Association is, and then there were other flavours and types of regulation, including state regulation within that mix. The perception of conflict, I think, sits with the misperception of self-regulation, which I hope we've spelt out and happy to talk further, is not, in fact, the case in Scotland. In terms of regulatory decisions, those are made entirely independently of the representative side of the House, and I think that's really key as well. They are made by lay members and solicitors. The more serious ones are sent to the absolutely independent Scottish Solicitor's Discipline Tribunal. Okay, thank you. Maggie Chapman, please. Thank you very much, convener. Good morning to the panel. Thank you for joining us, and thank you for your contributions, both written and what you said so far this morning. I want to continue just—I'm picking a little bit this notion—the issues around regulation independence or otherwise, and the different types of performance of regulators. If I can stay with you, Rachel, that would be helpful. When we're looking at, I suppose, particularly sections 19 and 20 of the Bill, which we understand will change, we don't know how yet, what is your view of how we understand and how we regulate and how we assess the performance of the proposed different regulators? Thank you. Well, I would agree with what our colleagues today from SLAS have said that we don't think there's any place for the provisions in 19 and 20 within the Bill, but if you're asking about the broader question of oversight, certainly the solicitor's profession and the Law Society of Scotland, there is already extensive oversight. There is the SLCC currently have oversight powers already, particularly in relation to complaints, but not solely in relation to complaints, also in relation to some limited oversight in relation to things like our master policy and our client protection fund or guarantee fund, as it's sometimes called. We also currently have oversight from, and let me see if I can remember all of them, the FCA in relation to what's called incidental financial business, which is we were delegated to authorise some of that for our solicitor members from the HM Treasury, and they're particularly the Office of Professional Body Supervisor, sorry, I can't remember the full acronym name. They heavily oversee regulation that we do on anti-money laundering from the Office of Immigration Services Commissioner, the OISC. They oversee and regulate us on our regulation of immigration services, which is obviously very important because so many of the people needing to use those services are particularly vulnerable. So there is quite a lot of oversight already, and of course the bill, and we accept that there should be oversight. What we don't accept is oversight by the state. We also understand that of course there will be increased oversight powers put in place with the new commission under the bill, and we are comfortable with some but not all of those. We do have some concerns about some of the powers that the commission are being given, and we have some concerns about lax of checks and balances, but there is hefty oversight. Sorry to interrupt, can you just give us a little bit more detail on that, the concerns with the commission, the oversight powers of the commission you've just raised? Yes, certainly. So the commission will be given far more power than it renamed and given far more power than it currently has, and I suppose there are two principal concerns we have about what's in the bill in relation to the new commission. There are some others as well, such as their name and we have some, but I think that's detail that we don't need to worry about. But one of our main concerns is that there are two sections of the bill, the combination of section 69 and 71, which would allow the commission to bring in rules by the back door, practice rules for the profession by the back door. Section 69 says that the commission has the power to set certain minimum standards directly for the profession, and section 71 includes a provision that requires practitioners to comply with those standards. But there are no checks and balances on that. There is no requirement for approval by the Lord President, and I think that everybody has accepted that practice rules, and although they're framed as standards, in effect, they are more rules, because if you say to the profession you must do these things, there will be consequences if you don't. Those are practice rules, and they simply can bring them into force, and the profession would have to follow them. There are no checks and balances on that. More widely, I mentioned that the SLCC currently has direction powers and will have increased powers over the society, so very limited direction powers at the moment. Mainly what they can do is bring recommendations, particularly through the handling complaints mechanism. That is in practice a very collaborative process, so they write a report, they investigate, they write a report. There is conversation between some of my colleagues and the SLCC about that. We get a chance to have our say, and at the end of it, the SLCC makes a recommendation, which we almost always, but not always, will follow. The bill will change that into directions. It will eliminate recommendations and say that there are directions. The concern we have is that, again, there are missing checks and balances. With the increased power to direct, rather than recommend, there will be no requirement to consult by the commission on these. There will be no requirement, and this is really key, for them to give reasons, which currently exist in the legislation. That to us seems to find the face of fair process, so they can make directions without giving reasons. There is no mechanism for us to challenge any of those directions from the commission. Occasionally, we do not follow a recommendation from the commission, because, in our opinion, they do not always get things right. It is unfettered power to direct us oversight power. We accept that there should be oversight power. We have a lot of it already, which will continue, and the SLCC will have more power. We think that there need to be important checks and balances. In fact, at second stage, we would be recommending that the commission, in fact, retain the power to recommend with reasons that we then have a statutory obligation to respond to that and give good reason if we are not going to, and then the SLCC might have a mechanism to take that further possibly to the Lord President if they feel that we are wrong with that. That might be a more balanced approach, but as it stands, lots of current oversight and lots more to come that does not have checks and balances worked into it. Thanks, Rachel. That is really helpful. Could you just give us a little bit more detail on the society's view of the proposals for the two different categories of regulators, categories one and two, to have different regulatory regimes? We have heard different views around complexity. We have heard different views around understanding for consumers and the structures on the point that Cocab made earlier, but what is the society's views around the different regulatory regimes and how you view those working or not? Thank you. Our view is perhaps simpler than that. It is simply that we do not really understand the reasons and justifications that have been given by government. I understand what they say, so they say that it is due to numbers. We regulate more people than the ACA or the faculty, and also that it is due to the solicitors who have that direct face-to-face contact with members of the public who are seeking to use and have legal services. We think that if it is simply a numbers game, that is not really a good justification. We accept both of those things to some extent, but the nature of the work that is carried out by the faculty and by the ACA is extremely important work. It is often very high value civil litigation pieces. It is sometimes dealing with some of the most vulnerable people in society, some of the most vulnerable cases, important cases in the criminal sphere, so it is not just a numbers game, but really important things. Also, both the ACA and the faculty of advocates do have contact directly. The faculty has less so, but there is contact directly with the public. That notion of solicitors always being in between the faculty, the advocate and the client is no longer the case. We simply do not understand particularly why the reasons that the government has given. I am supposed to link to your views on the position that category 1 regulators should not be subject to FOI requests and those kinds of interrogations. Yes, FOI is an interesting one. We welcome the provisions of the bill that will give greater transparency. We are constrained currently by, we can't publish other than a couple of meaningless lines really on our unsatisfactory professional conduct decisions which the society makes itself and other information that we are unable to publish. Obviously, there would always be some restrictions of GDPR, human rights legislation and also a very key provision in existing in the 2007 act, section 52, which makes it a criminal offence for us to discuss any conduct complaint outside of the society. All of that would still be there, but the cost of FOI would be significant in spite of the statutory limitations on that. There needs to be a balance between what FOI could actually deliver for people looking for more information because there would be very little that we could actually say under FOI that we wouldn't already be able to say through the increased transparency and publishing powers we'll have, the increased reporting obligations that we'll have under the bill and it would be very cumbersome and disproportionate for us to actually operate FOI. I think I'd also like to flag that if FOI were brought in for the society, which we were required to be subject to that, we would be the only legal regulator in the UK that was subject to FOI and there's good reason for that. It's because of the limitations of what legal regulators can say and also the disproportionate cost that then goes with that. Sorry Maggie, I think Bill would like to come in. Just to say that I agree with what has been said by the Law Society, essentially the ACA performs a similar function to solicitors in that we engage directly with the public when struck council, so it does appear to me to be simply, as you say, a numbers game as to the reason why they've decided what's a category 1 and what's a category 2 regulator. If we were asked to become a category 1 regulator, we would struggle just because there's so few of us. That's really helpful. I was just going to come back to either more agorodi and see if they wanted to add anything to what they've already said around thinking specifically about category 1 and 2 regulators and the different regulatory frameworks or regimes. No, thank you for that. As you'll have seen from our response, faculty is content to be allocated as a category 2 regulator. I do accept that it's not purely a numbers game, but numbers are part of it. More importantly are the limitations on what it is that council do, for example and really crucially, we don't hold client money, we don't handle client money, so a lot of the requirements that would be imposed on tier 1 or category 1 regulator simply would be inapposite for faculty. Insofar as the law society and we have a difference, it is perhaps more that I don't think it's being suggested that we be elevated to category 1 regulators. I think rather what's being said is too much as being expected of category 1 regulators. I don't have a view on that. That's for the law society to make their own case in that regard. We think the right balance has been struck with regard to the requirements imposed upon faculty as a category 2 regulator. However, one wants to describe those requirements by way of categories or otherwise, we're content with what's proposed in the bill. Thanks, Rody. One final question, if I may, co-cab. Coming back to you, Bill, in your opening remarks you talked about the problematic experience of going through the application to practice. This isn't about regulation or anything, but I wondered could you just say a little bit more about that and what you would like to see in sections 25 to 27 that isn't there, because it's not an area that we've had unpicked for us in our previous evidence sessions? The difficulty that we've found is that you're entered into a process where you have very little knowledge because most of it, in fact, all of it is geared around solicitors being the essential part of how the court system works. If you compare what happens in England, if a new body wants to apply for court rights, they get advice as to how to go through the process and what rights they can ask for. We found that when we were doing it there was no support whatsoever and we were in the circumstances when we were debating with the Lord President's office and they were arguing again some aspects of what we were looking for and ultimately the Lord President's was also the decision maker. We never got an opportunity to speak direct to the Lord President and maker case, it was always through his office and we found that frustrating. There were occasions when we would ask for something and it would be rejected, but there was no explanation given and then a couple of years later what we'd asked for would be granted but again with no explanation, so we would certainly like to see a process where explanations were given as to why something was not being agreed by the Lord President and also where the Competition and Markets Authority have made some recommendations about restrictive practices. If these were rejected, reasons should be given for that and that's not been the case thus far. I would like to touch on the entity regulations and I note in the law that I had said that they would provide suggested amendments at stage 2 and I don't know whether you want to just expand on that for us please. Yes, thank you. First of all to say we absolutely welcome entity regulation, it's something that we've been asking for for a really long time and also just to clarify because I think sometimes the two are conflated. Entity regulation is something different similar to but different from the regulation of licensed legal service providers or ABS as it's sometimes called under the 2010 act. So entity regulation would allow us to wrap our arms around the whole business and I think particularly important consumer protection because as far as the consumers are concerned their contract tends to be with the law firm obviously so practitioners are an exception and yet the decisions that are made in the delivery of that service are often made by multiple individuals some of whom won't even be solicitors so entity regulation would also allow us to regulate paralegals for example which currently we can't so I think it's a really good thing. The challenges that we think there are in the bill with entity regulation and the concerns we have is that because a lot of it has duplicated or lifted and shifted parts of the 2010 act which don't are not about the current legal profession and so we have been working very closely with Scottish Government on how we might how we might change some of those. I suppose the main one main concern we have is over I think the reference in the in the bill is actually a special rule exemptions but really we think of them as waiver procedures which that's something something new and that is not workable for us at all so we have concerns about that. We currently already have the power and the existing legislation to issue waivers of practice rules with some exceptions. We do it very very rarely it tends to be in relation to things like a some very technical niche points about conflicts of interest for example where there might only be a potential conflict and one client is a house builder developer and the other may be a family member wanting to build by a house in that development and everybody's quite happy that the same solicitor act for them. Also we waive things on admission for example if somebody has had a longer period of absence then the rules allow for due to health reasons or family child care reasons then we might waive those requirements. So we have limited waiver powers and those waiver powers would also allow us if the need arose in Scotland which it has not yet to create what are known as regulatory sandboxes so areas where particularly for licensed providers or ABS they may want to do something quite different and quite innovative that none of us can foresee at the moment and it would allow that to be done in a supervised way but what what we had asked government for was in fact we don't have power to waive any rules in the ABS scheme under the 2010 act and it's really important we do because that's where the innovation is more likely to come from and instead they've brought in these very complex waiver provisions which are very time consuming require huge amounts of consultation and waivers normally need to be done quickly they're often transaction based and also requirements about publishing waiver decisions which we often almost never would be able to do because of the commercial confidentiality and client confidentiality involved in them. So that's just one example of where some of the entity regulation has gone has gone slightly awry and we're working as I say really constructively with Scottish Government on working through some of that. I think the other key thing is in relation to what are known as authorised legal business rules where currently we are rules as we say are we bringing in the regulatory committee and only the regulatory committee make rules there's another key of independence our members don't make the rules it's only the regulatory committee that can make them with the approval and consent of the Lord President so ultimately it's the Lord President who has that power and the entity regulation requirements in relation to ALB rules would require again mandatory consultation it would give other people including ministers powers over those rules and we don't think that that is a good thing. I don't know if anyone else wants to come in on that or I'd be quite content. My next question is about making an offence to use the title of lawyer. I've asked various panels this over the last few weeks and just asking your views on Professor Mason's argument that the title regulation will not benefit consumers as various people with legal qualifications can legitimately describe themselves as lawyers and provide legal services without being a solicitor or advocate. I don't know who wants to come in on that one first. Roddie? I've been involved in a few cases over the years in which people have been contravening the existing provisions in terms of the 1980 act but pretending to be a solicitor and the law society has had to seek an interim interdict against them doing that and my involvement has been as counsel for the law society so you can tell from that that there is a problem that needs to be addressed and that the problem has become more acute because there are providers out there some of whom have been previously solicitors but have been struck off but are presenting themselves to the public as lawyers without explaining that they were a struck off solicitor which you would have thought a consumer might want to know before handing over any cash to that particular person. It is something that needs to be addressed. The way in which it's done in the draft bill is a way in which the faculty supports it. We were looking for something to go further in terms of protecting things like the title advocate. We can understand the difficulty that that imports because you have the concept of mental health advocate for example there are various provisions for advocates with a small a both north and south of the border so we can understand why that is so and the way that it's done is by holding yourself out as being a practising member of faculty I think that's an adequate way of dealing with it but it is a protection that's necessary it seems to me the bill strikes the right line in that regard and I'm supportive of it. Okay can I sorry could I just bring in David please followed by Darren? I would support most of the comments so I would just add that you know by hiring working with an unregulated lawyer the consumer just loses the protection and they don't know the educational qualifications that a solicitor would have and the cpd that a solicitor would need to follow and isn't protected by the indemnity insurance that the solicitor would have or indeed the fact that they haven't had complaints against them. I have come across a number of examples of individuals perhaps holding themselves out as solicitors that were never on the solicitors role. I reported one instance to my local faculty it was reported to law society and no sooner had it been reported than his Facebook page was stating the word lawyer. I have seen I had a client meeting and a client asked me is a solicitor the same as a lawyer and you know I just sort of sat back in my chair and I thought well understand why there is confusion out there and the term is misused from time to time. I've come across powers attorney designed not by a solicitor but someone holding themselves out as a lawyer allowing the attorney to transfer heritable property whether situated as opposed to whatever situated. I have seen wills poorly drafted by pretend lawyers pretend solicitors and I agree with the law society and agree with Mr Dunlop as well. There is a requirement that we really need to protect the public. Someone coming to a solicitor knows that there is that level of insurance there is that level of competence and the individual is comfortable that the solicitor sitting in front of them has went through years of experience whereby they go to another sort of firm of lawyers and inverted commas and they're sitting there under a total misconception there. Thank you for that. Rachel, did you wish to if I could very quickly say I understand Professor Mason's position to be one of support for regulating the unregulated market in a proportionate way. I think his comment was about does regulating the title lawyer get us there. My view on that is it's a good start regulating the whole unregulated market is very difficult to do proportionately and also to balance the need for access to sometimes good enough services. But in the main there is a public protection problem with people calling themselves lawyer and that is what we are trying to do with this bill. Thank you. I think that the bill was just one to come in as well. We all agree on this. My view is that there's a public perception that a lawyer will be regulated and for that reason alone I think that the title should be protected. I'd like to bring in Fulton MacGregor please who is online. Thank you, convener. Thank you for that and good morning to the panel members. Thanks very much for your evidence so far. Following on from Annie Wells' line of question, I wanted to come back to something that Rodi Dunlop had started to address there. This was around the faculty's position that a protection should also be extended to the title of advocate. Rodi, I just wanted to give you a wee opportunity if you wanted to expand a wee bit further on that. I know what you've already said and you can't see that there's some issues with that but I wanted to know where the initial thinking around it was and if there's any solutions to those issues that you started to address in a previous item. The original thinking comes back to the response to the Roberton report itself in which the faculty contended that there should be protection given to the title of advocate, which is of course in Scotland a particularly well expressly a public office that's not seen elsewhere. But in the course of the consultation process in that regard it was pointed out that there would be difficulties in that. What we don't want to do is to be criminalising people who justifiably say that they are an advocate for something or to criminalise people who are known south of the border as a mental health advocate or anything of that nature. I think it's for that reason that the bill struck the line which it does, which makes it an offence to hold oneself out as a member of the faculty of advocates if one is not. That means that if you wander around with a business card saying, rodded and lob advocate and you're not a rodded and lob advocate you've probably got a problem but it doesn't fall foul of criminalising those who ought not to be criminalised. It's for that reason that I think on deflection the bill has struck the right line and I'm not advocating with apologies for the pun or return to the position that faculty put forward in its original response. Okay, the thanks library, I think that is helpful to get that on the record. Convener, my second question, which I'll open up to the whole panel, is a task for thoughts on the rules on alternative business structures including asking about SLASs or to expand on its concerns in relation to, apologies, sorry, to expand on concerns in relation to rules on the suitability of outside investors. Is the answer in first? Thanks, Fulton, maybe not open to all seven members of the panel but is there anybody on the panel that would particularly like to come in on that one? Thank you, Rachel, anyone else? Okay, go for it. Oh, sorry, I thought the question was first directed at SLAS, but I'm happy to pick up on given that we are the ones pulling that together. Yeah, that's fine, and then I'll go over, yeah. Go ahead, Darden, is it? Andrew? Can I say, convener, we do have a particular concern about one provision in this bill, section 80 of the bill, which is headed on, it's under the heading of miscellaneous, but actually quite important provision is regards, ABS. What it does is it amends section 49 of the 2010 act by reducing from 51 per cent lawyer minimum ownership to 10 per cent. We have a real concern about that because in terms of the 2010 act, anyone who owns less than 10 per cent of an ABS is not liable to undergo a suitability test, and it could mean that one could... I think this is in our written response. We can have a situation where there's an ABS with 11 owners, a lawyer owning 10 per cent, and then 10 non-lawyers each owning 9 per cent, so together they would own 90 per cent. They wouldn't be liable to undergo any suitability test. We don't understand why that provision is in the bill because it does alter considerably the responsibility that we have to ensure that the owners of legal businesses are suitable and proper persons to do that, so we do have a real concern about that provision. Rachel, do you want to come in on the back of that, please? Yes, please. I think it's important first to clarify that it's not about solicitor or non-solicitor ownership in either the existing legislation or what's proposed. In fact, what section 49 of the 2010 act talks about in the other sections is there is a split between ownership by certain regulated professionals, which includes solicitors and about 10 other categories of profession which are listed in the act, such as actuaries, accountants, surveyors, and some others. The distinction is between that and people who do not fall into that list of regulated professionals. The reason for that in the first place is that regulated professionals are regulated. They will have already gone through some fitness to practice mechanism and approval before gaining that title. That's really important. In terms of the percentage, I think that the 51% was very much of its time. It was very contentious at the time that it was brought in Scotland at the time this was being discussed was one of the first countries in the world to be trying to bring this into place. Other countries were talking about it. Nobody had done it at that point. ABS did not start in England and Wales until March 2012, so the legislation was being worked through around the same time as it was in Scotland, but it didn't actually start. The US states and Australian states who do it also had not, no-one had done it at that point, so it was actually us that asked for a reduction in the 51%. We didn't suggest a percentage. We're not quite sure why 10% was chosen. We would say if it's going to be 10% why I have one at all, we are now 10 to 12 years on of ABS working very happily, very well, a lot of data on that from around the world to show that there are not issues with ABS and in fact it increases access to justice and access to legal services and helps the existing profession really to innovate. The 51% was a barrier for people to become an ABS. The 10% could still be if we were to move to allowing legal services businesses, licensed legal services businesses, to list on the stock exchange, as has been done successfully in Australia and in England and Wales, then you couldn't have any percentage requirement because the requirements of listing and changing ownership just wouldn't be compatible with that. Our position is that it's something we're really keen to move forward with. We're really keen to move on having taking on board the experience of it being very successful in other jurisdictions and we welcome the reduction of the restriction on ownership. Are you content, Fulton? I've got thumbs up there, that's great. I'm going to try and explore the issue around complaints. We have heard obviously in previous witness sessions lots of themes around that. The law society in itself has said that the current complaint system is too slow, too rigid, too complex and increasingly expensive to operate, so either Rachel or David, what are your suggestions to make it less expensive, more efficient and does the bill sort of like cover that? Again, I'll take that. The bill helps for sure, so we welcome the changes that are brought in through the bill in relation to reducing the making it faster, more streamlined, less complex in terms of eligibility, which is the gatekeeping done by the SLCC. We welcome things like the ability for us to be able to raise and begin investigating a complaint directly. Currently, as part of what's often referred to as the maze of the complaint system, if we do see something, we can raise a complaint in our own name, anybody can, but we have to still send it to the SLCC for eligibility, they've sent it back to us. That can be a very long process, actually. There are a number of things that are very good and some other things in there which arise from a long piece of collaboration between the Scottish Government, the faculty and the SLCC and the society for what would have been a secondary piece of legislation and now has been wrapped into the bill. We also welcome the reinsurrection of hybrid complaints, that will speed things up and make things less expensive as well to take us back to the position that we were before a court case on that. Unfortunately, the bill did not include additional powers we had asked for that would allow us levers to be able, on conduct complaints, to be able to move things along more swiftly. Yeah, absolutely. Two in particular, and we are discussing these with Scottish Government, we would like a power for what is called consensual disposal and I can explain a bit more about that and also one to cease or discontinue investigations. 70% of our complaints at the moment around 70% result in no action and yet according to the current legislation we have to take those all the way through every small step, lengthy small step and yet very few actually result in action. So these consensual disposal and discontinuing investigation would allow us to flush things out where it's appropriate to do so or to impose more quickly a moderate appropriate sanction rather than having to get all the way to the end and I'm happy to explain to the committee more about what those things mean. Okay, thank you for that. Turning to the faculty of advocates you obviously also had concerns about it and the role of the SLCC so I'm just giving you a wee opportunity to sort of talk around the complaints and the role of the SLCC in that. We are largely supportive of the changes that have been proposed in the bill. I think the one area of concern centres on the proposed removal of the right of appeal and I've seen the previous evidence sessions where that's been discussed and some people have said it that's a good thing. I beg to differ. The suggestion that the right of appeal as it currently stands would be replaced with a right of review by the SLCC itself is highly questionable whether that would be an adequate remedy and the result would in any event be challengeable by way of judicial review. Now I've seen previous contributors suggest that's a good thing. I do doubt that. At the moment if there's a wrong decision made by the SLCC and I'm afraid there have been several that have been ruled unlawful by the Inner House of the Court of Session there is an ability to go direct to the Inner House for a final decision with no onward appeal. If one had to go to review and then to judicial review in the Outer House and then to an appeal in the Inner House you're adding considerably to delays and to expense in all of that. So I do query whether that's right. It does seem to me there needs to be some sort of automatic right to go to a court rather than via judicial review. The other aspect that's been touched on is hybrid compliance. Hands up I was the council in the two cases that led to the problem being exposed with regard to hybrid compliance. So I'm very familiar with them. We don't have a difficulty with the statutory reintroduction as it were of the notion of hybrid complaints. The main point that arises from that is you potentially have the same set of facts leading to parallel proceedings. One before the SLCC for services, one before the disciplinary body for conduct and that is not necessarily a good thing. We have suggested that that can easily be resolved by faculty dealing with all complaints, whether services or conduct, as was the case satisfactorily before services complaints were aggregated to the SLCC. As with the question of an independent regulator, that's not in the bill and it's perhaps too late to reopen the question just now. It would be an easy solution and it would resolve the delays that are inherent in the present system. But if that is not something that's open then it does seem to me that the changes made by the bill are to be welcomed as designed to minimise the delays that are presently found in the system. Hang on. Is it on the back of Roddy's point there? It's to supplement that observation with a further comment about the benefit of having the power to initiate complaints within the regulator itself. That's already been discussed. I'm aware that the committee has already had information about that and that seems to be a sensible tidying up approach. It's possible, of course, to say more about some of the other experiences of efficiency or lack of or complexity and so forth, but I appreciate that the questions, so far as they've been addressed by the Law Society, I think we would share a number of those responses. I particularly wanted to mention that aspect because I'm aware that the committee has had it before us already. Thank you. Can I bring Darren in, please? Yes, earlier we discussed public perceptions and in terms of section 58 of the bill I understand that there will be that internal review committee of the SLCC. My concern would be that the public will perceive that as the SLCC marking their own homework. One of the concerns that I raised at the start of the discussion was that I was looking for this bill to be fair but I was looking for the bill to be cost effective as well. I referred to the position of solicitors and the stresses that were under. I think that it's only fair and reasonable that what we have is a complaint to the SLCC and if they have to have their internal complaints commission, then fair enough, but I think that the final route of an appeal should be to the share of court. It's cost prohibitive for solicitors to appeal to the court of interhouse of the court of session and if you get a finding made against you and it's a finding whereby you have to pay the sum of £4,000 but you have to pay multiple times that to appear in the interhouse of the court of session, then that's my concern for solicitors. So far as we hold the share of courts competent for other business, I believe that the share of courts will be competent to hear an appeal as well. I'm glad that you brought that back up because we have heard representations and not least I've had members of the public speak to me constituents regarding public trust and faith in a system that if you've got professional bodies that are investigating their own members' conduct and it's hard enough for the average sort of like citizen to be navigating the legal profession as it is, let alone making a complaint against one of their members and then it's that professional body that is then investigating that complaint. So I'm glad that that was raised again. I believe that my colleague Karen would like to come in on this theme of complaints as well, Karen. Thank you convener, just waiting to be unmuted there. Yes, just drilling down a bit more into that, if I may, if I could ask and open up more to the panel going down the line of the supplementary that had popped up what the views would be on these powers granted to the SLCC to initiate a complaint on its own name when it becomes aware of a public interest issue and the powers for professional organisations to investigate complaints on their own initiative where these arise from their own regulatory monitoring. Happy to be guided and led on who to ask, convener. To take that first, we are supportive of the introduction of the ability of the SLCC to bring forth a complaint where it's deemed necessary in the public interest as the committee will doubtless be aware of the stems from a decision in which that's exactly what happened and the solicitor under investigation sought judicial review on the basis that the SLCC couldn't be both complainer and thejudicating body. It would effectively offend principles of natural justice and that was upheld. Those concerns—natural justice concerns—need to be taken on board and they would need to be within the SLCC a proper demarcation so that people involved in initiating the complaint weren't involved in any way in terms of the adjudication of the complaint or indeed even just at passing the sift. But with those, as long as we understand those concerns and provisions are made to address those concerns, it is far better that that situation should be introduced than we have a situation whereby there is a problem and no one's doing anything about it, no one can do anything about it, that would be quite unwelcome and regrettable. You're happy with that response, Cardin? I think that Rachel has indicated that she'd quickly like to come in and then I'll move on to Megan. Oh, are you all right? Thank you. Yes, we also agree with both of these powers for the reasons that the Dean has laid out and welcome it. It's often the SLCC that may have first sight of a problem in a farm. If there are repeated service complaints coming through, we may not be against this list or we might not be aware of that and so for them to be able to say, actually, there's a bigger issue here is really important. Likewise for us, we receive intelligence, we become aware of things through some of our proactive regulations such as inspection, we already have the power to raise it, it's just that we have to then again, there was a provision which would have allowed us previously in statute, which would have allowed us to do this and it dropped out in 2010. We think, and the Scottish Government, I think, I don't want to put words in their mouth, we think it was accidental actually that it dropped out that we could not have to throw it to the SLCC to throw it back to us. So it's a really important public protection. On Roddy's point, within the Law Society, what happens now is there are very distinct regulatory subcommittees, different subcommittees who would raise the complaint to begin with and then deal with the outcome of the investigation at the other end and then, of course, it goes to the tribunal for the most serious cases. Karen Adam, do you have anything further that you would like to ask? Yes, please, convener. I'd also like to ask what the panel's thoughts are on the proposal to allow the SLCC to investigate complaints about unregulated legal service providers. Can take that first, if you like. Yes, I think, again, echoing what we said earlier about the regulation of the title lawyer being a start. It's a start. It'll be interesting to see how it pans out in practice because it may be difficult in practice to identify sometimes. There will be a voluntary register of those who agree to be regulated by the SLCC and whether or not people will sign up for that voluntary register, we're not sure. I think it's a start and it'll be interesting to see what happens. Thank you. I will now go to... Is there anything else that members would like to particularly cover here? I wonder if I could bring in perhaps Paul that might want to something about the legal services in section 6 being rather narrow. I don't know. Have we covered that? I mean, the law society, I think, had quite a bit to say in terms of that section 6 being too narrow, not covering, for example, estate agency work and incidental financial businesses, which, obviously, the public would recognise as being long established within the sector more broadly. I just wonder if you might give comment as to why you arrived at feeling it was broad and how, actually, the bill might be amended to widen the scope. Thank you. You'll be pleased to hear my answer to this as fairly short. It arose because these were sections that were lifted from the 2010 act, and our understanding under the 2010 act is that it would not be possible for us to regulate estate agency, or particularly incidental financial business, of licensed legal service providers. That's not to say they couldn't do those things. They would need to then be regulated by somebody else, the FCA, for a start, as well as us. That was based on a lot of discussion at the time and legal opinions taken at the time. We had thought that must therefore be our first concern when we saw it. All I'll say is that we are thinking and reflecting in a lot of detail on that further. We're at a point where I can't really comment one way or the other other than to say we're still working through whether, in these circumstances where it links into the 1980 act, in fact there is or is not an issue. We should have our views on that finalised fairly soon, and I know that the Scottish Government is waiting for us to let them know what we think and how we might fix it if we need to fix it. Sorry, it's important that we are able to regulate those things, particularly for the existing profession who already do those things. I think it would be a very poor outcome for the public and for the profession, if suddenly they were not able to do those things under our regulation. But, as I say, we're considering it further and should have a view soon. If I could go back to the complaints process, please, in terms of a complainers fee, because it's something that we don't have in Scotland, but we do see in other areas such as South Australia where I do believe that there is a complainers fee of £60, which is therefore returned to the complainant should the complaint be successful. Given the pressure of the complaints system, that's referencing the delays that were mentioned earlier on, is that something that the panel is perhaps thought of in terms of whether that would be better for the legal profession in terms of moving forward with this piece of legislation? I'm happy just to throw out to whoever would like to come in to answer. If I could start with that, we don't think that that would be either necessary or desirable. It would be for some people a significant barrier to the making of a complaint. Even if it was just £60, it might deter somebody from making a complaint. We would not seek to impose such a barrier. I'm not for the introduction of such a measure. I think that it is perhaps important to put in an interpretive context. Indeed, so, no dissent at all. It must be the position. It would appear that there is perhaps a move in the bill away from recognising the importance of the ability to sift against cases that are frivolous, vexatious or totally without merit. It seems to me that a financial barrier is the wrong way to address that, if indeed that is intended to be the thinking behind that. However, it is important to realise that there are such cases and that there should be an opportunity to sift those out at a very early stage in everybody's interests that that happens. We would just say that the Law Society would agree with the faculty on this that we don't agree that there should be a fee in this regard. I don't want to sow the seeds of dissent here, but we certainly disagree with the views that have been expressed by the other speakers. We are strongly in favour of that. We don't think that it is a barrier to justice. Sixty pounds is less than you would pay to sow a solicitor under a simple procedure on the sheriff court, where the fee is £110. If you choose to sow a solicitor for £3,000, you have to pay £110 to the sheriff clerk. Our suggestion is 60 pounds, which is roughly $110 AU, which is the amount that has to be paid if you wish to complain about a solicitor in South Australia. The commissioner there reported in 2022, and I am quoting, that a not insignificant amount of resources of my office are applied to dealing with what are ultimately unproved or unmeritorious allegations about legal practitioners. The commissioner was also the view that the fee there was almost certainly deterring frivolous complaints, and that freed up resources, time and energy to dealing with more meritorious claims. We talked earlier about trying to make the process faster and more efficient, and our view is that a fee such as this, which in the context of a great many clients, is not a significant barrier. If you are buying a house, for example, 60 pounds is nothing compared to what you will pay in terms of registration fees or stamp duty, or such like that. We feel that this is a reasonable requirement so that the entire cost of the exercise is not borne by the solicitors, and the complainer requires to essentially put his money where his or her mouth is. It will, in our view, free up the resources of the SLCC to deal with meritorious actions at the expense of frivolous actions, of which there are a few. We feel that this is a reasonable measure. At the risk of starting a new debate, I will leave it there convener, but thank you very much everyone. I suppose that 60 pounds is quite a lot of money to a lot of people, and if we are trying to make sure that the law is accessible and every aspect of it is accessible to as many people as possible, then there will be many people who will think that 60 pounds is quite a lot of money. I understand what you are saying about reducing vexatious complaints and that has worked, but I suppose that I am considering the balance of risk is that will it put off people who need to have access to the law and that 60 pounds will actually put them off? Is that a risk that we are worth taking? That is worth taking, that is the balance. So you can come back on me on that one if you wish. Presently, the whole SLCC is funded by solicitors. There is no polluter pays ethos in the current system. There is nothing preventing the serial complainer presently. In terms of fairness to other complainers who are somewhat delayed in respect of the serial complainer, if we can weed these serial complainers out on the spurious vexatious complaints, that is to the betterment of the complaints system and a nominal fee of 60 pounds plus interest, if successful. I would be in favour, as long as there is some fee. Even if the fee was only 30 pounds, I would be in favour of introducing such a fee to hopefully weed out some of those frivolous and vexatious complaints. I suppose that there is the cost of setting up a system that even a nominal fee of 30 pounds and yet to create a system that would have to process that would cost quite a lot of money, I would imagine. Rachel, you indicated that you might wish to come in. Please do. Yes, thank you. We are opposed in principle to charging people for bringing complaints, and I do not think that it would necessarily stop what are currently termed as vexatious frivolous or totally without merit complaints. However, I would like to pick up on the point about the system and those clogging up the system. It is important, as Morag has said, that there is—and we think that there should still be—a statutory mechanism. We recognise that the term frivolous, vexatious and totally without merit is really difficult for an individual who is not a solicitor to understand and in some cases even offensive. We did have long conversations previously with the SLCC and Scottish Government about coming up with a better form of words. Those terms are legal terms of art. There are case law around them, but we could overcome that. We could come up with something that for complainers of all shapes, sizes, colours would be a more acceptable one. We certainly understand the stress that that term can cause, but we think that it is a very important provision. We know that the bill allows the SLCC to make rules about that. We do think that there should be a statutory provision that is some sort of mechanism for sifting out these things, which for lack of a better phrase currently are vexatious or frivolous or ten complaints on the same subject. The levers that I have referred to for conduct complaints to help to relieve the system of things where the time would be better spent, but charging for complaints we do not agree with. We are coming to the end of our session, but I wanted to make sure that we had covered everything. One area that we appear not to have touched on at the moment, and I would refer to the Law Society in the first instance to expand on its argument that the rules in section 81 of the bill, which allow charities to employ solicitors to carry out reserved legal services, are not desirable and should be replaced by allowing third sector organisations to establish themselves as a licensed legal service provider in the alternative business structure yet. It would be good to get some views on that. I will take that. It is not a question that I have prepared for, so bear with me. I do not think that that is what we meant, if that is what we said in our response. The position is simply that we absolutely think that allowing law centres, citizens, advice bodies, charities, third sector to be able to deliver legal services direct is a good thing, but we think that there should be some regulation around it. As the bill currently stands, it would mean that there was, again, no public protection. The balance in achieving that is very difficult because some of the costs involved with being regulated can be significant. We need to balance that between the third sector and their resources and the need for these legal services to be delivered to the public, but it is simply that we think that, as it stands, an open door to say, yes, go ahead and just provide this without any checks or balances or protections for the public, gives us some concern. We absolutely welcome third sector and charities being able to become licensed legal service providers. We suspect that that is where they end up falling anyways because of their ownership structure. They would then be regulated. In fact, that is something that we asked for. We said, can we please, we do not understand why it was in the 2010 act in the first place to stop them from doing that. We are very keen to allow that additional access to legal services for members of the public. We simply think that section 81 we have some concerns with about no public protections built in and some concerns about trying to create a statutory definition of a legal privilege, but I think that that is a different subject matter. Thank you very much for that. That is brilliant. We have come to the end, but we have a few minutes in hand. I just wanted to make sure that everybody on the panel had had an opportunity to say what they wanted to say. If there is a burning thing that you have not managed to bring up through our questioning and you would like that opportunity, that is your moment. Roddie. I was not able to contribute on the question of the notion of conflict of interest, which has come up more than once. I genuinely see no true conflict of interest nor any risk of the perception of that once one properly understands the regulatory process. Anyone who has ever experienced regulation by one's peers will know that there is, when one falls short of what is expected, no harsher critic than one's peers. Moreover, as I have been at pains to stress, the system that endures in Scotland as it stands is not one of self-regulation properly understood. There is no aspect of the disciplinary regime for faculty nor, I should add, for the disciplinary regime applicable to solicitors, in which faculty or the law society, as it may be, is able to control or to direct because the disciplinary bodies act independently and none of them has a majority of practising members, whether of faculty or of solicitors. Rather, the simple truth of the matter is that proper and robust regulation is essential to the future of the legal profession. Without it, if we cannot show proper and robust independent regulation of the legal profession, there will be a loss of public trust in that profession. That being so, there is no conflict between the interests of faculty and the interests of the public. They are completely aligned. Independent, robust regulation, without fear or favour, is absolutely what we are all about. In that regard, I do not discern any difference, any conflict between the interests of the public on the one hand and the interests of the profession on the other. Okay. Thank you very much. We've heard you there. That concludes our formal business this morning, and I thank all the witnesses for your attendance. We will now move into private to consider the remaining items on our agenda. Good morning.