 Rwy'n gwybod i'n gwybod i'r 25 ysgolwyddiadau 2023 yn y awdurdodau cymdeithasol y Llyfrgell i'r cymdeithasol cymdeithasol. Rwy'n gwybod i'n gwybod i'r cymdeithasol ym mwyaf. Mae gennym ymddangosol ymddiadau ymddiadau 5 yn y regulau y Lleidydd Sgolwyddiadau. Mae gennym ddechrau'r cymdeithasol ymddiadau. Mae gennym ymddiadau ymddiadau ymddiadau ymddiadau ymddiadau. paved arbannau omrien communications dystaur hynny gyna Dream Justice Clark, y dyma fyrda rh Raiseun Sgolwyddiadau 5 yn Ysgolwyddiadau. Mae Snif 에�ch Dynpriddel yn 2002 rhwas contrau Yangurau triwf yn Ysgolwyddiadau, yn 2005. Mae Oerbyn Disg替 y Maor Daud Dynnu LOTe Ysgolwyddiadau i'n 2016 ac mae amfawr oedd na dda wedi'i enhyahuid misteri ac yn rhwe endured yranken yma i ddim ymddiadau maen nhot, rydym piano legacyLetbenchau no Minnesota. Yng Nghymru Llywodraeth Eric was appointed as a judge to the Supreme Court in 2016. He sits in the outer house of the Court of Session and also presides over trials in the High Court of Judiciary. He is just judiciary, I beg your pardon. He is also chair of the UK Competition Appeals Tribunal. We are very grateful to both of you for giving up your time to speak to us today. We are very aware of the concerns that have been expressed by the senior judiciary with regards to the bill, both in response to our call for views and in correspondence with the Delegated Powers and Law Reform Committee. We will look to explore those in depth during this session. We also noted the DPLR Committee's report published last Thursday and have written to the Minister for Victims and Community Safety to seek more detail from her on what impact any potential changes to the bill might have and whether they will alleviate an address concerns that have been expressed. We are also expecting Oliver Mundell from the DPLR Committee to attend as soon as his committee has concluded its business this morning. I refer members to Papers 1 and 2 and I invite Lady Dorian to provide an opening statement on behalf of the Senators of the College of Justice before we move to questions. The Lord President is grateful to the committee for accepting his offer that Lord Eric and I could attend today to indicate the grave concerns that we have with aspects of this bill. Members of the judiciary rarely attend Parliament to comment on proposed legislation and the fact that we are doing so merely underlines the extent of our concerns. As you know, our principal concerns relate to the removal of the Lord President and the Court of Session as the ultimate regulators of the profession and the constitutional threats to the independence of the judiciary and of the legal profession contained in some of the provisions. Whilst the SLCC, the Law Society, faculty and others handle complaints, the profession is ultimately regulated by the Lord President who has responsibility for the education, training and admission of all regulated lawyers as well as for the disciplinary processes which apply to them. Independent by the Lord, regulation by the Lord President, independent from Government, independent from Parliament, independent from the lawyers he regulates ensures compliance with the separation of powers and the rule of law central to our democracy and has evolved over hundreds of years to guarantee that it does so. Under the bill, Scottish Ministers would be given direct control to change the professional obligations of lawyers to reassign regulatory categories to review the performance of or impose sanctions on the regulator directly exercise power to regulate the profession and even set up an entirely new regulator. Those provisions clearly transgress against adherence to the rule of law as do provisions requiring the Lord President to act jointly with Scottish ministers. It is equally unacceptable to remove the Court of Sessions appellate jurisdiction designed to prevent the SLCC from acting unlawfully to the detriment of consumers and others. We agree, Madam Convener, that robust regulation is required and that regulatory bodies need to make continuous improvements in how complaints are handled in the interests of consumers. All that can be achieved without removing the rule of the Lord President or introducing a rule for government. The fundamental problem with the bill, as with the Roberton recommendations before it, or A, the mistaken premise that the legal profession regulates itself when there is an independent regulator in the Lord President and B, a failure to recognise the importance of the independence of the profession as a fundamental aspect of the rule of law. The senior judiciary voiced strong objections to the Roberton recommendations on grants that echo directly our concerns with the present bill, namely that the proposals are constitutionally inept. We are here to answer questions that the panel may have, the committee may have, and we are very happy to do so. Thank you very much. I would like to now move on to questions. I'm going to kick us off and then my colleagues will come in. You mentioned, Lady Dorian, the role of the Lord President. I just want to give you an opportunity to unpick that a little bit. If possible, if you could give some practical examples of the role of the President as it is at the moment and the implications within the bill of what the Lord President would or would not be able to do. I can give you an overview immediately of what the Lord President does at the moment. He has overall responsibility as the head of the Court of Session for the regulation of the profession. He has responsibility for the criteria for admission or for removal from office of an advocate for regulating professional practice, conduct and discipline. His powers to regulate professional practice, conduct and discipline would all be adversely affected by the provisions of this act. Whilst the faculty exercises functions which include handling disciplinary matters and complaints, that's under a delegated power from the Court where the Lord President retains overall responsibility. The faculty's disciplinary rules must be approved by the Lord President and they can't be revoked or amended without his agreement. They are currently in the process of being amended at the moment and he has written to them explaining certain changes that he requires them to make, including improvements to the timescales within which complaints are dealt with. Similarly with the Law Society, the society can only make rules regarding training, education, rights of audience, whether relating to training, professional practice, conduct, discipline, accounting, professional indemnity or whatever. They can only make those rules if the Lord President approves. The disciplinary tribunal must get the Lord President's approval of any rules relating to his procedure and complaints and appeals. He also appoints leisilisters and members of the tribunal and has an important role in termination of appointments. As to the SLCC, the SLCC must consult the Lord President before making or amending rules about its practice and procedure or changes to those rules. The ministers must consult with the Lord President before appointing members of the SLCC. The chair of the SLCC may not remove a member from office without the agreement of the Lord President and the Lord President can remove the chair from office if satisfied on the basis of rules set out in practice that it's appropriate to do so. At every aspect of regulation, the Lord President is at the top and everything requires his say so. The fundamental changes that this bill would have would be to remove the Lord President from that power of control as an independent regulator, independent of government, require him to act in certain circumstances along with government, which is constitutionally inept, as I'm sure you appreciate, and substitute his role in other regards for action by government or others. I think Lord Eric has, we have already indicated these maps and maybe I can hand over to Lord Eric to go through them with you because it might help illustrate the point that we've been trying to make if you could look at those. Lord Eric, please. Certainly. The first one I'd like you to look at is the current regulatory framework. You'll see in that that the system is we have the Lord President at the top as the ultimate regulator of the legal profession. Underneath the Lord President's ultimate regulator we have the professional bodies. The system that we have at the moment is the Lord President's regulator with limited self-regulation by the professional bodies. The professional bodies have to get the consent of the Lord President. He makes the kind of rules that Lady Dorian has mentioned. The court of session of the Lord President's role as a regulator is bigger than that. The court of session can take direct control of a solicitor's firm through a system called appointing a judicial factor to take control of the company and also can directly remove and suspend advocates. The advocates are there just as a delegated power of the court of session. Anything the faculty of advocates do is exercising a delegated power. The faculty of advocates has no independent right to regulate any advocates. That's the overview as it is. The next one that might be helpful to look at is the model proposed by the Robertson report. We have replicated the SPICE briefing on that. It completely transforms the current system. Instead of the Lord President, the ultimate regulator being at the top, the Scottish Parliament is at the top. In terms of separation and powers, that is a major change. You are moving control of the profession from the judiciary to the Scottish Parliament. That's quite deliberate. It's part of the whole scheme of Robertson. If you look at the first recommendation, the first recommendation is that the new independent regulator is to be accountable to Parliament. The court of session falls off the edge in this plan. It doesn't have any place in the hierarchy. What you have under Robertson is that you continue to have an independent regulator, but instead the independent regulator being the Lord President, the independent regulator is a new body answerable to the Scottish Parliament. The next one that I will ask you to look at is the regulatory framework proposed by the bill. You will see that this immensely complicates the situation in terms of constitutional theory. We now have a complete mishmash of the three branches of government. The Law Society, category 1 regulators report to the Scottish Parliament. The Lord President and the Court of Session exercise various differing powers. Sometimes they can achieve the same thing by using different powers over the different bodies. What you then have is the professional bodies that split their functions. They have a representative function and they have a separate regulatory committee. That's where you get the split of the functions. If you could then look at diagram C, I'm sorry, the numbers and the letters don't really make much sense. The next one to look at is the regulatory framework. If the Scottish Government termined the bill to transfer ministerial powers to the Lord President, on that analysis the Lord President retains its place as the ultimate regulator of the legal profession, but still underneath that existing limited self-regulation of the professional bodies is in a sense limited even further because they are split into a representative part and a regulatory part. The final thing, I think I might just mention it just now, if the convener would find it helpful, is just to have a look at the English position because I think that's quite useful by way of background to understand what happens in England. Of course, as far as lawyers are concerned, we tend to look on England as a completely foreign country because it does have its own separate legal system, which has been preserved since 1707. What do we have in England? You've got to understand the historical position in England has always been very different from Scotland. In England you had self-regulation of lawyers through professional bodies. In Scotland you've never had that, ever since the Court of Session was created back in 1532, the Court of Session has been the ultimate regulator. The reforms that were brought in England in 2007 were to address the position whereby the professions were self-regulating. If you look at the oversight map that we've taken from the legal services board, you will see that they have got to a position that is quite similar to Scotland. On the top you have the legal services board, which is an independent regulator. In the Scottish system that is the place where the Lord President sits as an independent regulator. Under that you have the professional bodies, the Law Society, Bar Council etc. The Law Society and Bar Council are then split into a set representative and regulatory part. Where you end up in England is that you have, as in Scotland, an independent regulator sitting underneath that, the professional bodies with limited self-regulation split into a representative and regulatory part. The only thing that I'd mention about this is that in terms of this diagram it doesn't show where things go upward from the legal services board, but I think that that's quite important to know as well, because constitutionally England is really in a very, very different position from Scotland. If you look upwards from the legal services board, the legal services board reports to the Lord Chancellor. We don't have anything in Scotland at all similar to the Lord Chancellor. Traditionally, the Lord Chancellor is the head of the judiciary. If you wanted to plot his traditional role, it's the equivalent of the Lord President. In 2007 there was a big reform and the judicial functions were mostly removed, but the Lord Chancellor retained some judicial functions and one judicial function he retained was that the legal services board reports to him. I think that's quite significant, because it's not reporting to him as a cabinet minister or a member of Parliament, it's reporting to him in what is the remnants of his role as head of the judiciary. I hope that that helps to explain and I'm happy to elucidate in more detail. Thank you very much for that. The diagrams were exceptionally helpful, and I don't say that just as a teacher who loves diagrams, but they do illustrate things. Can I just come back to just ask for points of clarification? Under the current regulatory framework it says that Scottish ministers have a duty to consult the Lord President. What does that actually involve? Is that a legal duty to consult on, for example, what? How do you know that they have consulted? Does that transfer into decisions? I'm just interested in what power they have at the moment. They must consult before making rules, and they must consult in relation to changes to the rules for practice of procedure, and they must consult before appointing members to the SLCC. That is usually done on a formal consultation basis, where the rules would be proposed, the Lord President would consider them, would indicate whether he deems them acceptable or not, if it's a question of changing the rules, whether those changes are acceptable or not. I imagine that there may sometimes be a dialogue in order to achieve something that is acceptable to the Lord President. I don't have any personal experience of that. Equally, there would be a formal consultation in relation to the appointment of members of the SLCC. We are in that situation at the moment. The minister has indicated that there will be amendments that are coming. That should allay some of the concerns that have been quite robustly made. We are in that situation where we don't know what those are. I suppose that in that wiggle room space, would either of you like to give me an indication of what those amendments could be that could address your concerns? Well, as much as I would like to draft the legislation, I don't really think that we can. It's good that the Scottish ministers have recognised that it's important to amend the bill to address some of our concerns. We have had engagement to a certain degree about what the main issues are, as I outlined in my introduction. We don't have, as you yourself have pointed out, Madam convener, any idea of what those will look like. As ever with these things, the devil is in the detail. Whether amendments that are to be proposed, and we don't know what they are yet, whether they will address our concerns adequately or not, remains to be seen. It's really not possible to discuss it in a vacuum, because you need to know what the proposals are. For example, simply transferring functions from the proposal that they go to the Scottish ministers, simply transferring those to the Lord President, is unlikely to be sufficient, because it doesn't address some of the underlying issues that are there, and it doesn't address, so for example, simply transferring some of those functions to the Lord President, so just to take an example, the power to create a new regulator. You can't just transfer that to the Lord President and say, that's fine, that means everything's okay. How would the Lord President go about doing that? How would the system enabling him to do that look like? How would it work? That in itself risks politicising the role of the Lord President. So the extent to which the amendments will address concerns really cannot be determined in advance of seeing the amendments. I think it's as simple as that. Okay, thank you. A final one for me, and then I'm going to bring Cardin in on this theme as well. Just to finish off, the views of consumers, obviously. Just interested in how the Lord President takes that into account when he is carrying out his regulatory functions. For example, are there any formal processes to ensure that consumer views are considered in addition to the views of the legal profession? The Lord President does consider that the interests of consumers are vital. That's one of the reasons why, as I say, he wrote to the faculty to raise with them the issue of timescales and the difficulties that have been raised in relation to some recent examples in connection with that for the faculty. I think that Lord Erich perhaps will be able to deal with the question about consumers more adequately. Although the Lord President's door would no doubt be open if consumer groups wanted to meet him, the formal structures are different because the formal structures of consumer groups engage with the professional body level or on the consumer panel of the Scottish Legal Complaints Committee. The current regulatory framework, of course, we are not saying that it is ideal. There are many ways in which it could be improved, and it may be that a process for more consumer involvement would improve it. Our point today for the committee is that you do not need to remove the powers from the Lord President to make them better. You could strengthen the Lord President's powers in relation to consumers without removing his powers to regulate. We are always looking to improve and to do things better. One of the key issues that consumers are concerned with is that it comes back to the competition and markets authorities and what one of the main things they are concerned with from the CMA point of view is price transparency and the extent to which consumers can shop around for prices. You do not need to remove the President's regulatory powers to solve that. It will be done within the same structure or by improvements to the structure. Save in relation to the Faculty of Advocates, which is in a separate position. As far as matters concerning the SLCC, for example in the Law Society, by and large dealing with regulating matters, the Lord President can only operate within the framework that has been given to him by Parliament. The Bill could have sought to strengthen his powers of regulation, particularly in the interests of consumers, but instead the opportunity to do that was not taken in favour of introducing governmental involvement. I can give one small example of a situation that arose in relation to the SLCC and the Law Society. I do not want to go into great detail about this, but the SLCC raised with the Lord President an issue that they were complaining that a number of lawyers were not responding to them or not providing them with necessary material. The Law Society disputed the figures that were being suggested by the Commission. The Lord President said that that was a factual issue. It must be possible to determine, as a matter of fact, how many there are. The Lord President suggested that it would be useful if the two would work together in the public interest and in the interests of consumers in order to present him with a joint factual basis on which he could then address the extent of the problem, what the problem was, how it could be resolved. That met, that fell on deaf ears. Let's just put it that way. It fell on deaf ears and he does not have the power to make any kind of direction in that regard. There are a number of areas in which the bill could have strengthened the Lord President's powers, but it didn't do so. Thank you. Cardin Adam, please. Thank you, convener, and good morning to the panel. I appreciate your answer to the question earlier from the convener in regards to, you can't really speculate on amendments, for example, but I was just wondering if I can word it like this, if there are any updates on discussions between the Lord President and the Scottish Government in terms of any areas which may be easier to transfer in an amendments to the Lord President from the Scottish Government as the bill proposes at the moment. For example, you said that it would be tricky to set up an independent regulator. Are there any areas that would be possible that you could see any hints? Well, I think that this, you know, we have to look at this as an overall scheme of regulation and I don't think it's really easy to cherry-pick one bit and say, oh, well, that might work. Because again, whether it might be possible to amend to address the concerns depends on precisely the wording of the amendment. Frankly, we are in a very strange position because we had no sight of the bill before it was published. And we are, like everyone else, reacting to the contents of it and trying to work backwards rather than work forwards. And so, I'm sorry, I have to decline the invitation. Okay, thank you. Megan, please. Thank you, convener. As it stands that the Parliament is scrutinising legislation, the Scottish Government itself intends to amend, and that's been part of the discussion that we've had this far. So we're looking at the bill at face value, but we know that there are significant and valid concerns that have already been raised and we don't know if those amendments will make the bill more amenable to do those in the legal profession. So I'm just wondering, I just want to throw this question out, but do you think there is a risk that the intended amendments, if they're not forthcoming as soon as possible, that this could lose confidence within the legal profession in terms of the principle and the direction of the bill and given that we might have to invite witnesses back to re-scrutinise the amendments once we have sight of them, do you think that that could set back the intended bill's principle itself? Well, all I would say is that, obviously, the sooner one can see the amendments that are being proposed and can understand what shape that gives the bill thereafter and what it would mean for the regulatory framework in the country, the easier it will be to address those issues, to address the concerns and to try to find a way forward. But seeing sight of the amendments has really got to be the first stage. Thank you. Can I just add through the convener here that we're a long way away from that. We've had some high-level proposals from the Scottish Government as to how they may amend the bill. There have been some conversations between officials, but we need a lot more information from the Scottish Government before we can consider whatever proposals they come up with are viable. The essential thing will be to see the draft amendments because it's only at that stage that we can focus on them. Thank you. Okay, thank you. I'd like to bring in Annie, please. Good morning, panel. The sort of bit I'm trying to get to grips with is the independent regulator. In our call for views, the argument that you put forward was that the independent regulator proposed by the Roberton review would threaten the independence of the legal profession and the rule of law, as well as the Lord President. I was wondering whether you could expand a bit more on that for us, please. The fundamental weakness of the Roberton proposals, rather than the present legislation, are that they rested on the false premise that the legal profession regulates itself. There was a complete failure to understand the role of the Lord President as the independent regulator. The Senators of College of Justice didn't even feature on the list of consultees for Roberton. That, in itself, is an indication of the extent to which there was a complete failure to understand the role of the Lord President and the Court of Session in the regulation of the profession. The other failure was in not appreciating the extent to which the proposals impinged on the rule of law by importing a degree of political control over the profession, creating the same risks as the current legislation. On the map that we saw, putting the Scottish Parliament at the head of this and making the regulator of the profession accountable to the Scottish Parliament clearly impinges on the independence of the legal profession. The independence of the legal profession is an essential aspect of independence of the judiciary. You can't have one without the other. Making the profession accountable in that way just transgresses against the separation of powers. It's really as simple as that. It fails to recognise that the legal profession must be independent from Government and from Parliament. There's just a lack of understanding of fundamental democratic principles. It's particularly important to recognise that independence is not something that's created for the benefit of lawyers. It's not there for them to shield them or to make them unaccountable. It's designed to benefit the individual consumer to make sure that someone who may end up having to sue the Government may be sure of obtaining a lawyer who will be absolutely fearless in the presentation of their case and entirely independent of any Government influence. It's of particular importance if you think that between April 2016 and November 2023 there have been 4,946 civil cases before the courts involving the Government. Nearly 5,000 cases. Of course, some of those are high-level litigations. There have been two litigations about the representation of public boards. One in relation to the census, the section 35 challenge, which is still undergoing at the moment, a reference to the Supreme Court and the Independence referendum, litigation about the UNCRC, the named person system, loads of others. Those are really high-level important matters and it's essential that individuals who want to challenge the Government can do so through an independent lawyer of their own choosing who is not going to be subject to any kind of Government influence or risk of discipline. Thank you very much for that. I think my other question was answered earlier by Lord Dettrick. Thank you. The other bit was about the legal services board. Lord Dettrick mentioned that earlier about England and Wales. It was a very different system. Thank you for explaining that. I'm just looking here at the evidence from Chris Kenny that there was no evidence that the independent regulation has damaged the independence of the legal profession in England and Wales. What's your view on that? I think we're slightly across-purposes on that because what we say is we already have independent regulation and that has been taken away. I think he's coming at it from a separate angle which is that you could have an independent regulator who wasn't the Lord President. We would say about that. First of all, you have to justify removing and completely changing the system. Secondly, in respect of that, we'd have to say, well, maybe you could do it that way, but it would have to come under the control of the Lord President and not under the control of Parliament or elsewhere. I think we're talking about two different things. Not so much an independent regulator but about who is the person that regulates them. We're not sitting here with a blank piece of paper. We have to address ourselves to what's in the bill and to what's in the Robertson report. If you set millions of permutations you could have to work out a legal system and one of them might include a legal service as tight board under the authority of the Lord President, but that's not been suggested by anyone so we don't want to get into speculation about that. Fair enough. Thank you very much. I'd like to bring in my colleague Paul. Thank you, convener and good morning to your Lordships. Good morning. I think the convener began in the area that I'm interested in. Last week I had an exchange with Mr Dunlop on behalf of the faculty around this issue about an independent regulator. Mr Dunlop's contention, I think, was that it's an academic discussion in some ways given that it's not in the bill. There's not in the scope of the bill an independent regulator. I think the challenge for this committee will be taking a view more broadly on whether that would be something that the Government may wish to consider at some point in the future in terms of Robertson. I just wonder if we can expand just on the point that Lordeic made there around your concerns about independent regulation. I know we've heard quite a bit of this already, but any future move towards what was in Robertson? We have no concerns with independent regulation. We need to be absolutely clear about this. We have no concerns with independent regulation because we have independent regulation. We have independent regulation in the form of the Lord President. Now, if there's a wish to strengthen the Lord President's powers in that regard, well and good, but that's not what's been done. We have no difficulty whatsoever with independent regulation. As Lordeic says, the question is who does it? The problem with Robertson is that you have responsibility of the regulator to the Scottish Parliament and that is just constitutionally inept. It's an impossible system. The question of whether further down the line the independent regulation by the Lord President is changed in some way to feature an independent board answerable to the Lord President, that's an entirely different landscape that we're not being asked to look at here. As with the question of amendments, you would need to look at what any scheme was before you could actually address whether it did offend against constitutional principles or not, but the point would be if you have independent regulation at the moment, what is the benefit of changing that to appoint another independent regulator when you could actually make improvements and strengthen the powers given to the current independent regulator? We heard some of that last week certainly as well from the faculty and the lost society and others. Do you think there is a real problem of perception here, of people thinking that there is abadi that is completely separate in lay people's views that that is independent regulation rather than actually the Lord President being an independent regulator as it stands? I do think that there is an element there that people don't quite understand that what we do have at the moment is independent regulation and it's a challenge undoubtedly to get over to explain so that people fully understand that we have got a system which involves independent regulation at the moment and so yes, I think you have got a point there. I wonder if I might finally just in terms of the known unknown if you like to borrow a phrase around the amendments. The Lord President has made certain views known about what those amendments might contain. Can I ask about what the engagement has been like with Government thus far from the Lord President's point of view in that regard? We have had as I say, high level suggestions made to us. I think what happened was that we were presented with a paper we felt we couldn't respond to that paper because it was lacking in detail. We had another paper submitted to us more detailed but all at a high level all at a very high level about what the options for amendment might be so that's the level of it it's not looking at actual detailed proposals for amendment or anything else and insofar as we were able to we responded to that in as positive a way as we could in as helpful a way as we could but as we have said repeatedly and as I think everyone in this room appreciates until you see the detail you can't find the devil. Sorry, Lord Eric. You had said and correct me if I'm wrong that we're some way off from that point of perhaps having substantive amendments do we have any sense of timescale from Government about because I think we've been frustrated at trying to get that detail No, we don't. Just as Doreen has explained we've given some high level comments about some high level options That's where we're at Okay, okay I'm grateful to you all our chips We have time so I am happy to bring in Oliver Mundell from the DPLR committee this morning for a question please Oliver Morning and thank you for making the time on your schedule to come to the Parliament I'm particularly concerned around a number of the delegated powers in the bill particularly in relation to section 5 on the regulatory objectives and principles and the Lord President obviously wrote himself to the convener of the DPLR committee setting out some concerns and in that he says that his consent or withholding consent would not be a veto and flags up the risk of judicial review and I just wondered if you're able to elaborate on how that might come about I agree with that entirely I think that the issue in relation to section 5 we simply think it's unacceptable to have that delegated power to amend or remove the regulatory objectives and professional principles and I've yet to see any justification for it and I think that's the problem with a number of the delegated powers that are here that there is really very little by the way justification for them when you look at the current system and you look at what is the mischief that this is intended to address it's really rather difficult so I think that I would entirely agree with the contents of the Lord President's letter to the convener of that committee on 17 November because the minister who's taking forward the bill wrote to the committee also on the 16 November and in relation to section 5 and some other sections there was a suggestion that it might be possible to narrow the scope of these changes so that they're only possible at the recommendation of certain bodies and I wondered in terms of getting into more specific detail on what amendments might look like we heard from the factive advocates in the law society that there was no amendments in relation to those in relation to section 5 that would make it acceptable and I just wondered if there was kind of further amendments to it that wouldn't alleviate your concerns I think it's unlikely because the issue with something like section 5 is there's no explanation as to why it's needed and should a situation arise Mr Mundell where it was necessary to consider changing amending or removing regulatory objectives or professional principles that's a matter of the utmost importance utmost importance the idea that it should in any circumstances be left to delegated power seems to me to be highly unsatisfactory I don't know whether it has anything to do with it when you look at the examples of it and I don't have the act in front of me but for example there's a regulatory objective that lawyers must act independently and in the best interest of your client as the bill actually stands the government could abolish that that is so absolutely significant that if it were to be abolished then that should have a proper parliamentary act to deal with that Do you think that section 5 for example should only be able to be changed by primary legislation Yes Can I just add there's a kind of knock on to that because there's also a general I think it's section 90 or something a general clause allowing amendments to the bill and that may have to be looked at as well to check that that isn't used as a backdoor to do the section 75 Thanks I'd like to bring Maggie in please Good morning to the panel thank you for joining us this morning articulating so clearly the concerns that you've outlined I'm interested in I'm wondering if you could just unpick for us a little bit more around your concerns with the proposal to abolish the right of appeal and what that would do or what you perceive it would do in terms of delays in terms of consumer experience I suppose as well as the broader legal question that's taken Of course First of all there is the constitutional point which is that the right of appeal to the Court of Session is part of the regulation of the profession the exercise of regulatory functions by the Court and it's important that there should be a right of appeal to the inner house of the Court of Session and not to any other Court not to a lower Court which does not play a part in that regulatory function it's the Court of Session which does excuse me it would also be a right of appeal to another a lower Court or worse still the abolition of a right of appeal diminishes the important of the issues to the consumer which are considerable and it wouldn't entirely prevent cases being brought to the Court of Session because judicial review would still be available but that as I'm sure you're aware is not a complete jurisdiction and it would be far from satisfactory of appeals to the inner house and importantly it would not enable any systemic failures in the disciplinary process to be identified which an appeal process which looks at the facts as well as looking at the facts found as well as the decision made can do and it would be gravely mistaken to think that there would be any financial saving by removing the right of appeal or that there would be a saving in time perhaps I could give you some figures we have a note of the number of appeals to date so from 2020 and I'm only using that figure because from that date we have them specifically as appeals direct to the inner house as opposed to potential other cases involving the SLCC so using those figures that have been 12 appeals since 2020 of those 2 are still alive 10 of them have been resolved of those 10 4 were disposed of by agreement in other words they were settled between the SLCC and the individual 6 of them were successful in 6 of them the court held that the SLCC had acted unlawfully of the 10 cases that went to the inner house 6 of them were appeals at the instance of the lawyer but 4 of them were appeals at the instance of the consumer so almost half of them are appeals at the instance of the consumer seeking to vindicate their rights the average period of time that these appeals took from start to finish was 34 weeks was 34 weeks excuse me now that's because it's a one-step process straightforward straight to the inner house of the court of session if you change that by what is proposed in the bill you change a one-step process to potentially four-step process the first step is the internal review the marking of the own homework the second one is bringing up a judicial review to the outer house of the court of session as is could be predicted I think a fair number of those would be appealed that would be stage 3 an appeal to the inner house and it's not inconceivable in a very important case that there could be an appeal to the UK Supreme Court from that that never actually had a jurisdiction in this field at all hitherto and as to the costs I can give you some figures for that too using the court of session fees order of 2022 as a guide and I'm talking averages here obviously this doesn't doesn't apply to every single case it's the average the average fees payable to appeal to the inner house is around £947 that these are exclusive of the what you pay for your lawyer on top of that there's a court fees the fees for bringing a judicial review to the outer house on average range from 1142 to 1455 it may be expected as I say that a number of these cases brought as judicial review would then be appealed so you would add the 947 on top of that so the cost would it would definitely be more I find it impossible to accept the suggestion that it would be cheaper to abolish the direct right of appeal to the inner house and of course your 34 weeks would go off and up the cowgate the length of time that it would take to present a judicial review would be significantly longer I think the average time for a decision on a judicial review is 17 months and then of course you might have an appeal to the inner house so I failed to see the justification for removing the right of appeal for a consumer unsatisfied, dissatisfied with decision of the SLCC to the inner house to correct that decision in a simple, straightforward relatively cost effective process should be changed because we've had 10 cases in the last three and a half years I wonder if the volume of cases is an indication that maybe consumers don't feel confident enough to or able to use direct route and one of the issues that the proposals of having what might be intermediate routes or just might be lower level if that makes sense so maybe it doesn't seem as daunting to a consumer can you see that as being an argument I can see it being suggested but I can't see it as being an accurate situation in England where a person can complain to the ombudsman and the ombudsman can say well because of lawyers and this has happened in a specific case because the lawyer has agreed to abate the fees by three quarters then we don't need to investigate it and the individual is left with that's going to put people off so I think I don't really think that that's an answer and the reality is that the appeal any appeal should be to the court that has the regulator responsibility and appeal to say the sheriff court or even the sheriff appeal court wouldn't suffice because they do not have that responsibility and you know over the years the court has had to correct a number of decisions of the SLCC where they have not complied with time limits for example where they've investigated matters they did not have authority to investigate where they have miscategorised complaints that's a quite a common issue about which consumers express concern where they've sought to waive legal professional privilege when it wasn't permissible these are matters of some considerable importance and they should be dealt with at the appropriate level I just wanted to add something about the cost because I know that the SLCC are concerned about the costs involved and the costs of the profession but you'll have seen from these statistics that the SLCC lost every single case that went to hearing and the reason why they have incurred a lot of legal fees is because when they've lost they've had to pay their own legal fees and the other side so you have to look carefully at the reason for this expense it's because they have run cases which they've lost another question thinking about the different regulatory regimes and the proposal to split the regulators and we've heard last week from the Law Society that such a split is not appropriate and I was just interested to know if you or the Senators have a view on this or whether you consider it to be Law Society's decision I suppose Can I just clarify you mean the split between the regulatory arm and the centre firm and the different types of regulators categories one and two category one and category two it's not something we have a strong view on the only thing that we bring to the table on this is that the Faculty of Advocates is not an independent regulator so it's a category two regulator but it's actually the Court of Session which has that part which it just happens to have delegated to the faculty but beyond that I don't have anything to say about that Okay, thank you Thank you very much Can I bring in Karen Adam, please? Thank you, convener The Association of Construction Attorneys stated last week that becoming a new regulator under the existing rules and I'll quote them was challenging and at times traumatic and that no reasons were given from the Lord President for decisions so can I ask do you think that rules in sections 25 to 37 of the bill on applications to become a new regulator need to be amended in some way to deal with this issue? Well I wonder how easy it should be to be able to become a new regulator these are really important serious powers the Court has to be satisfied that anybody being given these powers has the skill the experience the knowledge operates within the correct ethical and professional way in order to be able to exercise such powers I think it is probably only right that that should be a relative challenging process because these are very important matters to preserve the standards for consumers to make sure that those who enter this field know what they're doing have got ethical responsibilities can be trusted to act in the best interests of the consumers are conscious of their obligations to the Court and are altogether suitable to be put into that role I don't think it should be an easy process Yeah, it's helpful, thank you Thank you, are you satisfied, brilliant So we're nearing the end just to give an opportunity to any of my committee members if they have anything that they wish to clarify this is your moment while we have you Maggie one possibly slightly cheeky question if I may in your earlier responses Lady you were very clear about the powers that need to reside in the person of the Lord President what happens if that person goes rogue Well we don't legislate on the basis that we have to worry about people going rogue there are provisions that if the Lord President becomes incapacitated in some way then the Lord Justice Clark becomes interim Lord President as it were so there are steps that can be taken to address that I certainly think that we would notice if the Lord President went rogue Thank you I think I get Maggie's point there is that obviously sort of having that much of power and over legislature and everything else but from a consumer's point of view I suppose it's about transparency that's the more serious point is that anybody's decisions are transparent and open and there are enough checks and balances within the system that's provided for us that I think is the point that Maggie was trying to make The system is not incompatible with transparency and as I've already said the fact that there may be improvements that could be made does not mean that you have to throw out the baby with the bath water and the improvements can be made within the current system and they already are being made I suppose there's that point is who oversees the overseer and I wonder if that was at the root of some of what the Roberton report was trying to get at you've made the case very clearly that it's inappropriate but I do wonder if that's and we have Esther Roberton coming later so we can ask her Absolutely thank you very much now that concludes any questions that the panel have and Lady Dorian or Lord Ericht do you have any final points that you wish to make I don't think so I think that covers everything thank you very much indeed once again can I thank you on behalf of the committee for giving up your time this morning we do appreciate how busy you are and it has certainly been valuable evidence this morning and the meeting briefly whilst we change witnesses thank you and we now move on to our second evidence panel for this morning but before we start could I ask at this point for any register of interests thank you convener just to say that Esther Roberton and I worked together when I was rector of Aberdeen University and she was senior governor and we were also both on the record so welcome to Esther Roberton who was commissioned back in 2017 to chair the independent review of legal services in Scotland her report fit for the future report of the independent review of legal services regulation in Scotland was published in October 2018 the report's main recommendation was that an independent body non-legal chair and a non-legal majority should be set up to regulate legal professionals with the professional body only retaining their role as a representative of the profession the new system would be financed by a levy on practitioners so I welcome Esther Roberton to the meeting and we are very grateful that you accepted our related invitation to appear before us and I would now like to invite you to make an opening statement before we move to questions thank you very much indeed convener and thank you for the invitation it is a bit strange having already done a session in front of the delegated powers committee so you may already know some of what I'm about to say but I will for the record briefly set the context as you say I was commissioned in 2017 and I spent 18 months on the review which it's now more than five years since I've published so I would preface all my remarks by saying I am not as in command of some of the detail as I might have been five years ago but I have gone back to the report to refresh my memory I was disappointed as you won't be surprised to know that it's taken this long and that my principal recommendation wasn't accepted and I'll come back to that I am aware not least of which because Jamie who I worked with at the time is sat behind me here the civil servants have been working hard over that time to find a compromise between the two opposing positions but of course in my view you can't compromise either you believe in independent regulation as I do or you don't and there is no halfway house my review took 18 months I was supported with an expert panel which included some very senior solicitors and others with regulatory experience and over that time supported by a small secretariat we did a wide range of engagement with wide range of stakeholders and from consumer bodies and with individual groups of lawyers the idea was that one of my challenges was to balance the consumer and the professional interest we also commissioned significant research and I became more of an expert about regulation than I ever expected I might my conclusion was then and it still is that regulation should be independent of those it regulates a position supported by the CMA and by other consumer bodies and by many senior members of the profession in fact one very senior member of a big supporter of the law society said to me early on I've heard you say about the perception of the public that the law society would always take the side of the lawyer and I've realised that that perception alone is damaging to the profession whether it's true or not he said the thing that worries me most is that on reflection I realised that on the rare occasions when there is that conflict it is actually the case that it does side with the profession because in the end that's what it's there to represent I don't believe the current model serves the profession or the public and Lorne Crerar when we launched a report went on record as saying he was a keen supporter of a law society that represented him as an individual his firm, his profession and Scott's law as a model for the rest of the world but that he was not happy with that representative body and professional support body also being the body that would prosecute and I've come across that word a few times and if you're a lawyer being prosecuted through the law society where do you go for support because you can't go to your professional body I do believe that the global direction of travel in regulation is towards independence I've been surprised throughout my time to hear people confuse the architects because of course the architects themselves now have a separate independent regulator called the Architects Registration Board and they have their membership bodies as do dentists, doctors, teachers and others so the direction of travel across the professions is there but in fact in the legal profession it's also the direction of travel Ireland had already done so by the time I started my review albeit it hadn't been terribly effective and the legislation was pretty muddled since then Steven Mason who started his review quite late on during my time I didn't think would come down to the conclusion of independent regulation but he shared his report and he obviously did and most recently Ron Patterson who'd been here for a visit and his colleagues came to the same view in New Zealand and it's interesting that in New Zealand that review was actually commissioned by the law society where they have both roles their only funding is for the regulatory role so they are already preparing for what they will be as a membership body and how they will persuade the profession to fund them because they've accepted that regulatory model The bill definitely goes some way to address many of the problems that we identified in particular around complaints but I also think it causes others and I suspect the one that you'll have heard most of is about the role it gives Scottish Government because my review is very clear that independent regulation should not just be independent of those it regulates but also of the Government and I think nowhere other than law is that more critical so I gave Parliament a role not that it has any control but that it would appoint and despite assurances the law society never quite got the message Parliament would require to appoint the chair and it would require two thirds majority to remove the chair so it could never be Government or party political decisions In conclusion I don't think that the current bill helps, I think it seems to have upset everybody which sometimes you could say is a good sign in that nobody is wholly happy The thing that's come to me as I've been reflecting since I went back to my report was that when I was commissioned I came up with a set of recommendations but wasn't asked and hadn't given consideration at that time to how you would transition from the current model to a new model and I think one of the solutions to the current dilemma is that you could move that transition to the front of the bill and could look at a way of creating something like a legal standards board in Scotland that would be a first step towards an independent regulator and you could give them the powers that Scottish Government currently have in the bill that upsets everybody I think including the consumer bodies that would create that independence from the profession and the senators this morning would also give you an opportunity to codify the role of the Lord President because in my discussions with him it was clear to me that the role of the Lord President is hugely wide and that yes he is the overarching regulator but my own view was the risk of him being a direct regulator is quite significant A it politicises him and B if I want to go to court as an individual that's not happy with the regulator while Lord President is ultimately that regulator I think that creates a real conflict so I think there's a possibility an opportunity now to revisit in light of the evidence I understand you've heard that could take us a step closer to my recommendation satisfy the needs of the consumer perhaps the senators themselves obviously I doubt the law society or the faculty would be happy because it would be a step towards them losing part of their function but I believe in the interests of the public and in the long term interests of the profession that would be the right thing to do thank you thank you very much for that just to kick us off before I bring in my committee members obviously well I don't know whether you heard the previous evidence session as well but also in written evidence we've heard that your review was fundamentally flawed in its premise that the legal profession in Scotland regulates itself and that has been totally refuted so why do you think that it's had that response I don't think I can tell you why it's had it but I do think there is a misunderstanding between the role of the Lord President as the independent regulator and the role of the professional bodies so I don't think the premise is false and again if you come back to perception the perception of the public will always be that the law society and the faculty will look after their own if you like so I think there is a debate to be had about the Lord President's role and the role of the judiciary but I'm not persuaded that the two are irreconcilable in the way that I do think the professions regulating themselves which is what most of the work is done in the professional bodies not by the Lord President he has oversight and the final say but that's a very different role in my view okay thank you it was just to get us going thank you please thank you for joining us this morning I suppose that just following up from that last point oversight and the final say as different to regulation can you just unpick what you mean by that? well I was always very clear that when you set up an independent body that body would be required to work with the professions and with the Lord President it would not be operating in a vacuum and it wouldn't be looking to Parliament for guidance so you would have one of the arguments that the Law Society made against the case was that at the moment a lot of their regulatory activity supported by lawyers would give their time voluntarily and my argument was that would not change if you still have an independent regulator I believe those lawyers would continue to contribute in the interests of their profession and there would be legal members on the panel itself and the Lord President would be consulted you could take that further if you wish in terms of the appointments I think that the independent regulator would still have all the functions that it was described but would still have the oversight by the profession and by the Lord President to make sure they didn't act out with the rule of law or whatever I suppose one of the questions and you talked about a legal standards board do you see that as the equivalent in England the legal services board I think it's called? to be quite recently having heard some of the evidence that you've been taking and of course when Chris Kenny set up the legal services board in England they were very clear that they wanted to be redundant and that they wanted to move to completely independent regulation as part of my engagement I went to London and I met with the SRA the Bar Standards Board, the Law Society and the Bar Association to get their names right and of course that had been portrayed as independent regulation by the SRA and the BSB but when I spoke to them they didn't see it as that at all they were very much of the view that they were controlled by the professional bodies the chair at that time of the BSB herself was a barrister and she said I'm not even allowed a checkbook I have to get checks written by the Bar Association but the legal standards board was quite clear that their direction of travel was towards properly independent regulation that would remove them and the need for them from the equation so I'm suggesting and it's still in the thinking stage it would be a transitory body that could become the overarching regulator in the longer term as it draws functions to itself from the two professional bodies but that would have to be done in consultation with them and with the Lord President obviously OK, so just so I can understand your point when you said earlier that the legal direction of travel is towards complete independence how do you you talk about a transitional relationship perhaps as a way to solve or to deal with the situation we're in at the moment but I suppose that doesn't address necessarily the contention by the Senators and others actually that the Court of Session and the Lord President actually do function independently and I was just wondering if you could tease that out a little bit and I do think they could still do that but instead of it being the two representative membership bodies it would be the legal services board or whatever you wanted to call it that would still have the overarching responsibility to the Lord President if that was something it could be agreed on and that would be for discussion with them I don't know what the New Zealand position is other than that the recommendation has been made there's been an election there so we don't know if the new government will prioritise legislating but I haven't heard from my colleagues in New Zealand that there's any resistance from their judiciary now their model, like the English model may well be very different from ours historically but I still believe if their independent regulator was going to compromise the rule of law we'd be hearing much more objection than we're hearing at the moment I suppose on a similar point but just looking at it from the other angle in the bill as they stand and we expect this to change is having a role or an accountability or relationship to Scottish ministers that impinges on the independence of the legal profession in your view with a completely independent body who would oversee the overseer if that makes sense obviously there's not the opportunity for that role as we've heard and the government has conceded that having ministerial oversight is problematic for a whole range of reasons who would oversee the independent regulator I would be clear as an individual taking aside my role here I'd be really unhappy about government because I might want to sue government one day who knows and if that's the case I don't want them to be the regulator so I think there are all sorts of reasons that shouldn't be at the moment the model is that the Lord President oversees but actually that only means he has consulted and makes decisions he has no governance responsibility for either of the bodies well actually I may be wrong there I'm not as familiar with the faculty as I am with the law society now so it is about who would it be accountable to and that was one of the questions that was asked and for me the accountability at Scotland is about a financial governance model it's about the transparency of the finances and it's about appointing a person to chair and a board that is acceptable both to the public but also to the judiciary and the legal profession so I think it's perfectly possible to give the Lord President a responsibility that does make him the ultimate regulator but in a very hands-off way that keeps him free of potential conflict and of flea politicisation I think the one thing that I gathered from my own research and from conversations with the Lord President is nowhere is it very clearly codified what the Lord President's role actually is and when you ask individual solicitors they have no idea so to me one of the opportunities would be to make that much more explicit and have it agreed an in public domain okay okay thank you and final question if I may just one of the law society's contentions if we hadn't done the route of an independent regulator it would be considerably more expensive I just wondered whether that was what your view on that position is there is a section in the report as you'll know about cost partly out of time and partly out of resource but partly also because the information was so difficult to get to grips with we couldn't do the kind of detailed analysis I'd like to have done but if you're a solicitor right now you have no option but to pay your fee to the law society I think I've said in New Zealand they're only allowed to take money for regulation here there is no accounting or there wasn't that may have changed that would allow you as a lawyer to say which proportion of your money is spent on regulation and which is spent on the membership and professional body part of it but the key in the end is we have five organisations currently the SLCC the faculty the chamber sorry the faculty the society where commercial attorneys I believe have changed their name and the tribunal it is not conceivable in my head that to have one organisation doing those things would not be cheaper and the one thing that we were able to cost was the current cost of the SLCC and apart from saving on back office functions the current legislation around complaints makes that complaints handling process much more complex and much more expensive than it needs to be if we adopted a more modern complaints process then that should reduce their costs so the overall levy on the profession should not be more than and might even be less than in a streamlined organisation but I wasn't able to prove that okay okay no I appreciate that thanks I'd like to bring in Paul please thank you very much and good morning to Ms Robertson I wonder I'm just particularly interested in the regularity role for the Lord President that might have been envisaged just in terms of your review and if there was an independent regulator what role would the Lord President play because I think in evidence over the preceding weeks and this morning we heard the kind of view that the Lord President is an independent regulator so I wonder if you might just expand on that for committee well and I do think overall you could argue that he absolutely is but as I've said earlier I think it's a much more hands-off role on a day-to-day basis and certainly the law society perhaps less so of the faculty because of course the judiciary I believe are still members of the faculty so there is more engagement there but I do think that to avoid politicisation to avoid conflict that should remain a slightly arms length relationship but I do think that if you're going to be changing the rules the Lord President has to have a role whether that's a consultative role or a right of veto or whatever I think could be codified and negotiated but it was impossible for me in the time available to clarify what the existing functions are and how they were carried out because obviously he has a much bigger role than just his role in regulating the profession and I wonder so in the beginning of your remarks you spoke about this bill being imperfect to maybe be kind and so your view would be there could have been a different version of legislation that would have created something that was independent but with a role for the Lord President which could have been developed in conflict between the parties essentially and I assumed once I'd published the report and had begun to do some of the engagement I did that was probably when I started to think about transition I wasn't surprised to know that as time went on I stopped thinking about it and moved on to other things but there was no doubt in my mind just as I worked with them all to write the report in the first place that were government to adopt my recommendation it would not be done in a vacuum it would be done in collaboration with the various bodies and with the Lord President and the bit I struggle with is that of course the SLCC currently is a non-departmental public body answerable to government and I didn't hear huge amounts of complaint about that at the time but that model had been adopted it would have created more space between that part of the operation and government that's there already but certainly I was surprised to see the scale of the role being put in place for government and I don't envy your task delegated powers asking me I hadn't read them all but I already knew that government were planning to renegotiate which makes your next stage of your bill an interesting one I'm sure I wonder if I can just on that point would your view be that compromise is going to be impossible within the current context of the bill and going to be really really difficult to teach? Yes, I mean I think consumer bodies when I was doing my consultation the CMA wasn't even completely explicit but they became so I engaged with citizens advice they were on the fence my understanding now is they believe the new consumer Scotland body women's aid all the organisations that I engaged with on the consumer side are very clear that this compromise does not satisfy their major interests it satisfies some I mean I know women's aid will be pleased that they might be able to hire their own lawyers for example which was one of the things I was keen to see but I don't think you can and it's not a surprise with all due respect to the faculty and the law society they're never going to be happy if they lose that function I understand that but at the same time personally and I don't think they believe I believe this but I do I think in the long run I think it would free them up to become professional bodies and I know that some of the lawyers I spoke to were keen to see the law society spend much more time on the representing of Scots law and of contract law and of legal firms beyond Scotland and increasing the visibility and the economic future of the legal profession in Scotland and have that separation so I do believe there are a fair number of lawyers who would welcome it too and I wonder if I can obviously this bill is going to be amended we believe sorry Government are going to bring amendments we think you know we've had that discussion and we're sort of that's the known unknown in a sense and we had that discussion with witnesses previously I wonder first of all you know do you think this bill can be amended to I mean you've said there that you don't think that the compromise is going to satisfy everyone are there other amendments that can be made that would move it into a place where you think we could get more consensus the first thing and then the second thing would be there was a view that the Lord President perhaps didn't feel as consulted in terms of your review as it could have been so I'm keen to get your view of that and indeed they have contributed more in a sense to your review that would have maybe got us into a position where the consensus would have existed can I take those in reverse sure of course and I might have to ask you to remind me about the scope of the first one I met with the Lord President twice once at the very beginning of my review and once at the end before I started to have the report drafted with the benefit of hindsight I could have asked for a wider engagement but my view was that if I met the Lord President he would speak on behalf of the judiciary so yes I could maybe have done more and I'm pleased to hear that government are now engaging in terms of the bill I'm not a parliamentary drafts person so I can't comment on that I think there is there are two things, one is for me having read the bill it does not achieve the one thing out or one of the things I was trying to achieve which is to simplify the process if anything it makes it much more complex I can't get my head round category 1 and category 2 regulators I haven't studied it in the kind of detail I might have so yes I'm sure with consultation could streamline the bill and resolve some of the issues but you cannot find a compromise between a group of people who are not all consumers, some are lawyers who believe it should be independent of the profession and the bodies that currently regulate and you're not going to get a compromise that satisfies both so it's really about is Parliament willing to be bold enough to say we need to find a way that meets the public interest whilst giving as much say to the professions as is possible and they should have a say absolutely should have a say and a role I just don't believe it should be their role any more than I would want the GMC not to be regulating doctors or the like thank you convener thank you very much Paul I'd like to move on to Megan please thank you convener and good morning I must admit just after the line of questioning from Paula Kane I am concerned about the current status of the bill and I think you rightly summed up at the start by saying you know I think the bill seems to have upset everyone and that is certainly true but I'm just worried because we could end up having to heavily amend and then have to re-scrutinise the amendments that are forthcoming from the Scottish Government but also then having to engage with all stakeholders involved and then that goes beyond the legal side it also goes into the consumer side which of course is the whole intent of the bill is to try and streamline the legal process to make sure that people can access it where possible but moving that side I don't know if you've got any further comments on that part of it but moving that side and moving on to the concerns relating to the independence between the legal profession the judiciary and of course the executive we've had so many concerns and arguments being raised that with the new legislation the Lord President could be drawn into a collaborative administration with Scottish ministers so I would just like to hear a little bit more about your thoughts and the proposed powers for Scottish ministers as it stands and if there's any way that we can try and manoeuvre that to make sure that the judiciary remains completely independent To answer your first question first and as I say, I'm not a parliamentary draftsman I helped to establish the Parliament and the committee structure and I've taken an interest in it for 25 years I know it's a huge ask for a committee to say to the ministers this bill won't do go and start again and in terms of time we've waited 13 years for alternative business structures we've waited 5 years since my report was published to go back to the drawing board is a huge ask but the bill that established the SLCC one of the reasons that the SLCC process is so convoluted is because of the amendments that were added at a late stage in the bill and what came out the end bore very little resemblance to what went in at the beginning and had lots of unintended consequences which lawyers have paid a price for because of the additional complexity the costs and court of session cases so I am concerned about the notion of having to amend a bill so much that by the time you get to the end it's not ideal sorry, I've forgotten the first part the other part of your question relating to the power when I was invited to give evidence to the Delegated Powers Committee I hadn't looked at the bill at that point I wasn't sure if I was going to need to and when I read it I remembered saying to a former colleague on that table this will be a very short evidence session I believe that Government should have no powers and therefore should have no delegated powers is a notomatic consequence of that and that hasn't changed I really don't think it's in the interests of ministers or in the interests of the profession and the public that they should be involved in this at all and the notion I absolutely share not many things a law society and I agreed on but that was one but I also share the concerns of the incident having to be that close to Government I don't think that's appropriate in terms of the independence of the judiciary and that's one I would stand very firm on so no, I don't that was the only way I could come to a transition and a compromise was to say nobody wants Government to have those powers so take them out and put them in an oversight body that could be the next step towards the independent regulator but I don't know enough to know what the knock-on effects that would be of that would be on the rest of the bill I'm glad it's you doing that job and not me Thank you very much for that and I'm just going back to the first answer that you gave so do you think where we are sitting now it's removed far from where you started in terms of your review and do you think that if there was any advice that you could perhaps give Scottish ministers at this point would be maybe to re-look at the original principles that you outlined I mean I know that your stage 1 view is to be on the principle of the bill and I for one if I were sat around your table I would be saying I don't accept the principle I spent 18 months making a case for the alternative and I'm sorry that they felt unable to deliver that Thank you very much Thank you Megan I'd like to bring in my colleague Karen please Thank you convener and good morning Esther Thank you for your evidence thus far it's been really quite interesting particularly with the previous session that we had it's been really helpful to have those side by side actually I'd like to ask really kind of following on from Megan's questions as well the Scottish Government's proposals to amend the bill to transfer their powers to or some powers to the Lord the Lord President in specific what are your views on that until I knew what they were I couldn't comment but I can only imagine that it wouldn't be all of them so it would still leave a role for the Scottish Government that I would be uncomfortable with and as I say whilst I think the Lord President has a key role to play in all of this in whatever form that takes I want him or her whoever that role is held by to be independent of government in the best interests of all of us so I can't see how tweaking and amending that section of the bill could possibly keep that separation of powers between government and the Lord President in judiciary so for example Lady Dorian stated that the possibility of the Lord President having say over an independent review body how that would be something that would be problematic do you agree that that would be it was one of the discussions we had at length around my advisory board table and there were pretty strong views that viewed the Lord President shouldn't have any role at all I'm a pragmatist in the end and I am a defender of the independence of the judiciary and of the rule of law and if that requires giving the Lord President clear powers I can live with that so that those powers can just as easily be exercised over an independent regulator as they are at the moment over the faculty and the law society so I don't think that needs to change but as a member of the public who's now got to grips with this incredibly complicated system I'd be really keen to see whatever role the Lord President ends up having being clearly codified and articulated so that we could understand what it was but I do think and I think it was Chris Kenney made the point that it is that bit about the Lord President should be very careful of being the direct regulator because of the conflict potentially further down the line so I think being that arm's length regulator as he is at the moment can be exercised over an independent body just the same OK, thank you Fulton, please Thank you, convener and good morning I've got a couple of questions like I call the Karen Adam which is on the substance of the bill I was drafted, but I think before I asked, it would probably be remiss if me not to... Sorry, I'm struggling to hear a bit Sorry, it would probably be remiss if me not to recognise the concerns that have been raised by yourself and others about the bill and the fact that we will have a decision to make on the general principles of the bill which looks like it's going to be very difficult as well as coupled with the fact of when but taking that aside because I think you've articulated your concerns around that quite well, I'll move on to questions as the bill is drafted and my first one is on a basic question if you think the bill is drafted in terms of the complaint process will that be more consumer friendly than the existing one? I think there are stages in that process that look better I don't know all the details of it and I haven't had any conversations with the SLCC team more recently I do think that from my perspective, given what I've looked at across better regulation and consumer principles the bill should avoid being too prescriptive I've believed all along that should you have an independent regulator it should be high level principles that allows the regulator in consultation with the professions and the Lord President to develop procedures to keep up to date with best practice so I do think there are steps forward but I couldn't comment in any detail on how much better it would be than the current model and I'm sure the SLCC will have been pretty clear about that I mean I do think under the leadership of Jim Martin and Neil Jim was on my panel obviously they'd taken a lot of steps to improve the process as far as was possible within that legislation but it was still far too complex without question OK, thanks very much for that my second and final question is just to ask for your views on the fact that the bill as drafted will remove the right of appeal to the Court of Session we did hear from the faculty of advocates and the senator and they expressed as that abolishing the right of appeal is likely to lead to increased delays and expenses in the complaints process if you get any views on that you'd like to put on the record it's a very technical point that goes beyond my detailed expertise but if I go back to the conversations I was having during my review I was certainly concerned about the fact that the SLCC had to go very quickly to the Court and that that was a very costly process and hiring lawyers and hiring advocates and all the rest but that's a different thing from removing the right of appeal if I'm taking a complaint to the SLCC or any other body I want to know that I've ultimately got that right of appeal but I think it's if my recollection is correct it wasn't the right of appeal that was the issue it was the sudden jump so you know if that's what's being proposed I would be concerned but it's not an area that I'm a particular expert in okay thank you okay happy okay okay, Annie please morning and thank you I would just like to get your views on whether the bill is drafted as in line with the Scottish Government's better regulation principles as was proposed in your report no it's an easy answer I went back, Annie, because I wasn't sure and I've forgotten again whether the better regulation principles are explicit about the independence point but one of the people I consulted as part of the review I've just forgotten his name, Russell Griggs who was the Government's advisor on better regulation and he certainly seemed very clear at that point that independent regulation was the right move the right direction so no, I don't think it is in line I think it's overly complex as well as everything else yeah and just one final question from me as well just asked you to expand on why you no longer have the view that there is a need for the regulation of the title lawyer I haven't said anywhere that I don't believe that there is a need it's the one area where I have wrestled with where I got to at the time because at the time there was a lot of current noise about a particular case and that had generated a view which seemed to be unanimous across the profession and the consumer bodies but I have reflected a lot and I'm not sure I would stand well, I'm not sure I would stand by it but I'm not sure I would abolish it either because I think you don't legislate on the basis of one bad apple I don't know how prevalent it's been since, as far as I was aware at that time there had only been one case that everybody knew about and I do understand there are difficulties I had the same discussion with the faculty about the advocate title but of course the point in the end and I could understand why they wanted it regulated but they also understood why that's complicated in that context but the bottom line is a consumer doesn't commission an advocate first of all and there's not an alternative title so there's no confusion about the person in the wig in the court for you whereas between a lawyer and a solicitor for the public there is confusion and it hadn't occurred to me until I got involved so it's one that I would step back from and allow wiser voices than me because as I say it was a unanimous view but I suspect it was a knee jerk thank you thank you very much for that I'd just like to come back on a few points I've been listening really carefully so I'd like to generate a little bit more discussion about the consumer's perspective because we have taken lots and lots of evidence from the lawyer's point of view, from every other view so can you give us a little bit of insight into how the consumer's point of view informed your report at the time whether your views have developed over that and whether you think that the consumer is served well by the bill that is presented to us in its current state so I had lots of engagement with consumer bodies I met with Citizens Advice Scotland but I also met with some of the managers of individuals Citizens Advice Services I met with Consumers Scotland of course because it didn't exist at that point and there was a general view that the current model wasn't designed to meet the needs of consumers and particularly not those in the most need there was a whole conversation and I had been there and I think I used the words in here you know nobody consults a lawyer other than in times of stress not always distress although it can be that but stress because we all know even if it's buying a house that's a stressful thing and that power imbalance was there and the view around the tables of all the consumer groups that I met with was that that power imbalance wasn't helped by the fact that the profession were regulating themselves one of the clear things that I did come up with which I think I know that the women's aid people are happy about was this notion of why couldn't Citizens Advice or Women's Aid or whoever employ their own lawyers and I think that there are a range of ways that the bill sorry that my report addressed that I'm not sure if the bill does in terms of entity regulation and the like and that can all be very proportionate you don't apply the same kind of entity regulation to Women's Aid as you would to Vincent Mason's or Harper McLeod so I think that was the general view was that they would have much more confidence in a situation a very specific example from Women's Aid was about the fact that when a woman came to them for advice they would look for a lawyer that had a background in that sector and the Law Society offered I'm not sure if they call it an accreditation scheme but if you went on the Law Society's website my understanding was there would be a group of lawyers who claimed to be specialists in domestic abuse cases but the view was they had not been involved in any discussions about that and that their experience of dealing with lawyers under that category was that they hadn't had any special training they didn't have accreditation and not necessarily even a lot of experience in that field and there were some real horror stories about women being very badly let down by their legal advisers I'm sure it's not common across the board but there were enough awful stories I met some women directly involved not just the workers so there was a general view that consumer principles better regulation principles perception, power imbalance I heard no voices at all opposed to the notion of independent regulation and being taken out of the hands of the Law Society That's interesting We've also heard this morning about the case where a citizen could want to sue the Government however what about the consumer the person on the street that maybe wants to sue their lawyer because they haven't received a good service and what I have heard anecdotally albeit but also through constituency people know that we're dealing with this, they're coming that their experiences I've heard some that have not had good experiences that they feel that they're up against a whole system that system's going to look after itself Did you speak to individuals or did you look at casework like that could you give us an example of that That's a really good point For those of you that know my background you'll know that I've chaired health boards and of course we have the same sort of debate in the health service about the public and their complaints and what I found in the legal side was much the same as in the health service most people don't want to sue they want satisfaction, they want speedy resolution they want an apology or whatever and in some points yes compensation if it's in a legal situation there will potentially be a financial loss in a way there isn't in the health service so for me I think it was that absolute view and one of the things we looked at and quite a lot of detail using the experience we had around the table and elsewhere in complaints handling was that law firms themselves didn't all have particularly effective complaints handling procedures and if you're in a public body you can't go to the ombudsman unless you can demonstrate you've been through that process and one of my recommendations was that an independent regulator shouldn't take a punitive approach but should take a quality improvement approach to work with law firms to help them develop appropriate processes and part of the argument against it is lawyers themselves are under a huge amount of pressure in many cases and if the complaints against them might have a conduct element that might end up in the society prosecuting them sometimes the head in the sand is the easiest thing to deal with because it's all too much so my view was that you take a much more positive much more supportive model and help firms develop proper complaints procedures that mean fewer complaints have ever come to the regulator and that one option would be available to say that if you have a persistent offender, if you like who doesn't respond to the positive approach then you can fine and at the moment the SLCC has no opportunity to address a firm that might be a multiple offender because that is not allowed in the legislation but a regulator that had oversight of the whole process would not just know this is a firm that's not handling its complaints well they might also know it was a firm that was in financial difficulty or whatever and could take a whole systems approach to that so my view is it's not punitive it's not about encouraging people to sue but my goodness I wouldn't want to be somebody trying to sue a law firm because that would be a very expensive process apart from anything else so take all the steps you can to avoid that ever reaching that stage would be my view thank you very much for that we have actually come to the end of our session but I did want to give you an opportunity was there anything that we haven't covered that you would like to bring to our attention this is your time no I don't think so no doubt I'll be halfway down the stairs and I'll remember something to do I think your question makes me very fat and I've had an opportunity to say what I needed to say so thank you very much and I wish you every success with the task ahead of you thank you thank you once again for your evidence so that concludes our business in public this morning we will now move into private session to consider the remaining item on our agenda thank you