³ÉÈË¿ìÊÖ

As members know, the Scottish Government opposed both Brexit and the Retained EU Law (Revocation and Reform) Act 2023. However, we recognise that we need to take technical action to ensure that things work as smoothly as possible. In some cases that involves working with our colleagues at Westminster.

The purpose of the Westminster statutory instrument is to continue the savings that were made at European Union exit to ensure that the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters can continue to apply in certain legacy cases. The 2007 Lugano convention contains rules governing jurisdiction in civil and commercial matters when a case has connections to more than one country, and it contains rules that provide for recognition and enforcement of judgments in such matters.

The convention is a treaty between EU member states, Norway, Iceland and Switzerland, and was entered into by the EU on behalf of member states while the UK was itself a member state. At EU exit, the convention was revoked for the UK because the UK’s convention membership was dependent on its status as a member state and because its operation relied on reciprocal application, which would no longer occur.

However, the convention was saved for transitional cases—that is, to save the jurisdiction rules for cases that were commenced before the end of the transition period and to save the recognition and enforcement rules for judgments that were issued in cases that were commenced before then.

The savings provision relied in part on section 4 of the European Union (Withdrawal) Act 2018; section 2 of the Retained EU Law (Revocation and Reform) Act 2023 will repeal section 4 of the European Union (Withdrawal) Act 2018 at the end of the year, which creates a risk that the savings that have been put in place will fall away. The proposed SI will use transitional powers under the 2023 act in order to continue the savings provision. Given that the original savings for transitional cases extended UK-wide, the UK Government proposes to extend the SI UK-wide.

As I said, the Scottish ministers remain opposed to Brexit. However, in order to minimise the damage that EU exit brings, this technical SI is necessary to ensure continuity in respect of relevant judgments and those that were issued before the end of the transition period. It will also save the recognition and enforcement rules for judgments that have been issued in cases that were commenced before the end of the transition period.

The relatively small number of statutory instruments that have been proposed under the 2023 act that are notified to committees—seven so far, including this one—reflects the fact that the Government will never consent to proposals that threaten the vital safeguards and high standards that Scotland benefited from when the UK was part of the European Union. The programme for government commits the Scottish Government to maintaining alignment, where that is possible and meaningful, with EU law, and this SI has implications for devolved responsibilities. I invite the committee to agree that the Scottish ministers should consent to the SI being made.

My understanding is that the lawyers will draft them for stage 2, but we will have agreement on the way forward for the different sections with stakeholders and the Lord President’s Office. We will be able to provide the committee with detail on that—probably not the exact wording, but the agreed principles for the amendments.

The Law Society has 12,000 members, one third of whom work in-house while the other two thirds predominantly serve the public and handle client money. On the other hand, there are 450 advocates in Scotland, and advocates are members of an independent referral bar. That means that, as a general rule, advocates do not provide their services directly to the public but are available to be instructed by solicitors and other designated professionals and bodies. Similarly, construction attorneys operate in a specialist area of law, and there are 10 practising members of the Association of Construction Attorneys.

It was viewed as a proportionate response to put greater regulatory requirements on the Law Society, as it has substantially more members, at 12,000, than on the Association of Construction Attorneys, which has 10 members. In an evidence session with the committee, the Association of Construction Attorneys said that it would struggle to be a category 1 regulator.

The bill significantly increases the transparency of all three branches of the legal profession and future proofs the framework to provide a risk-based and proportionate approach to any new entrant into the Scottish legal sector.

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

I know that the committee heard anecdotal evidence of solicitors being struck off and subsequently providing unregulated legal services to the public using the title of lawyer. Our view is that because of such cases there is a public protection concern involved in protecting the title of lawyer.

We have to strike a balance. If we end up with no bill, we will have no legal reform, which is required for the legal sector and consumers. The positive aspects of the bill will still bring progress to reform of the legal sector, even though there might be some opposing views along the way.

I will bring in Leanna MacLarty to answer that.

Yes. The McClure situation shows the necessity for justice reform to ensure that situations such as that at McClure’s do not happen again. I am aware of the number of families who are facing issues as a result of McClure’s going into administration. As ³ÉÈË¿ìÊÖ, we will all have been contacted by constituents on that.

I cannot comment on individual cases, but the Scottish Government has taken proactive steps to help to mitigate such situations. Such cases show the need for legal regulation that centres on the public interest and protection of the consumer. The bill will introduce the authorisation of legal businesses. That will bring benefits such as consistency in the way in which legal firms are regulated, with all entities having to meet the same high standards; and greater collation of data, which would enable the regulator and the legal profession to identify and address deficiencies early and take the necessary preventative action.

I know that this is a different bill but, as part of the process for my Trusts and Succession (Scotland) Bill, which is currently going through the Parliament—we have just had stage 2—I heard of the significant practical difficulties that co-trustees may have in administering trusts when a trustee who was appointed in their professional capacity is no longer a member of the profession. I therefore lodged amendments at stage 2 of that bill to ensure that that would not happen in future. With the justice reform bills that are going through, we can address situations such as that at McClure’s and prevent them from happening in future.

I do not believe that it is too complex; I believe that we are improving the system. Regulatory complaints already exist in respect of licensed legal services providers and the bill will extend that type of complaint to authorised legal businesses by the introduction of entity regulation. I do not believe that that is making the system more complex; I believe that it is simplifying the system for consumers to access legal advice.

As the committee has already heard, there were vastly differing views on Esther Roberton’s primary recommendation. That was backed up by a consultation that showed that views were evenly split between support and opposition to it. However, there are many areas where there is broad agreement between the stakeholders.

The bill takes a proportionate approach that seeks to balance and deliver stakeholders’ key priorities. It requires that all legal service regulators exercise regulatory functions independently of other functions or activities and introduces greater transparency and accountability of legal services regulation.

On the whole, it was simply due to both sides—the legal profession and the consumers—having polarised views on the recommendation for an independent regulator that the decision was made not to go down that track.

Back in 2015, the Law Society approached the Scottish Government on the need for reform, and that is when Esther Roberton was asked to carry out an inquiry and produce a report. After the report was published, we saw polarised views from the legal sector and the consumer. I do not believe that there is any way that the bill could move forward with both sides on board 100 per cent, because there will always be a conflict between the legal sector and the consumer. It is about trying to find the fine balance between the two, so that we can bring in good legislation to improve things for the legal sector and for consumers.