Legalize
← Current text · History

Legal Profession and Legal Aid (Scotland) Act 2007

Current text a fecha 2007-03-19

Part 1 — The Scottish Legal Complaints Commission

Establishment

The Scottish Legal Complaints Commission

1

Conduct or services complaints against practitioners

Receipt of complaints: preliminary steps

2

(a complaint suggesting any such matter being referred to in this Part as a “conduct complaint”);

it must, subject to subsection (3) and sections 3 and 4 and any provision in rules made under section 32(1) as to eligibility for making complaints, take the preliminary steps mentioned in subsection (4).

Existence of specified regulatory scheme

3

Complaint not made timeously or made prematurely

4

Determining nature of complaint

5

including whether (and if so to what extent) the complaint constitutes separate complaints falling within more than one of these categories and if so which of the categories.

it must consult, co-operate and liaise with the relevant professional organisation and have regard to any views expressed by the organisation on the matter before making a determination under subsection (1) as respects the complaint.

Complaint determined to be conduct complaint

6

Where, or to the extent that, the Commission determines under section 5(1) that a complaint is a conduct complaint, it must—

Services complaint: notice

7

Where, or to the extent that, the Commission determines under section 5(1) that a complaint is a services complaint, it must give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination and specifying the reasons for the determination.

Services complaint: local resolution or mediation

8

the Commission may, by notice in writing to the complainer and the practitioner refer the complaint back to the practitioner, the practitioner's firm or, as the case may be, the employing practitioner requesting that the practitioner, the firm or the employing practitioner attempt to achieve such a settlement.

Services complaint: Commission’s duty to investigate and determine

9

the Commission must, subject to section 15(2) and (5), investigate the complaint and after giving the complainer and the practitioner an opportunity to make representations, subject to subsections (2) to (4), determine it by reference to what the Commission considers is fair and reasonable in the circumstances.

Commission upholds services complaint

10

and to direct the practitioner to comply or secure compliance with such of the requirements set out in subsection (5) as appear to the Commission to be necessary to give effect to the determination;

in relation to the subject matter of the complaint.

amend subsection (2)(d) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.

Fair and reasonable: matters to be taken into account by Commission

11

In considering what is fair and reasonable in the circumstances, the Commission is to take into account the relevant law (including levels of damages awarded by courts in similar circumstances) and relevant codes of practice, professional rules, standards and guidance.

Services complaint: notice where not upheld or upheld

12

to the complainer and every practitioner specified in it and, where section 10(3) applies, to the employing practitioner by sending to each of them a copy of the determination, the direction or, as the case may be, the report.

Services complaint: reports

13

if the practitioner consents or the condition in subsection (4) is met.

Determination under section 9(1) or taking of steps under section 10(2): effect in relation to proceedings

14

Complaint appears during mediation or investigation to fall within different category

15

it must determine accordingly.

Power to monitor compliance with directions under section 10(2)

16

Power to examine documents and demand explanations in connection with conduct or services complaints

17

Power of Commission to recover certain expenses

18

Documents and information from third parties

19

relevant to the investigation; and

Enforcement of Commission direction under section 10(2)

20

A direction by the Commission under section 10(2) is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

Appeals

Appeal against Commission decisions

21

Appeal: supplementary provision

22

Handling by relevant professional organisations of conduct complaints

Handling by relevant professional organisations of conduct complaints: investigation by Commission

23

by sending to each of them a copy of the decision and specifying the reasons for the decision.

but paragraph (a) does not apply in any of the circumstances mentioned in subsection (5).

by sending to each of them a copy of the decision and specifying the reasons for the decision.

Investigation under section 23: final report and recommendations

24

the Commission may direct the professional organisation to comply with that recommendation if the Commission thinks fit; and the organisation must comply with the direction.

amend subsection (2)(e) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.

Failure to comply with recommendation

25

may order the organisation to comply with the recommendation with which the direction under section 24(6) is concerned.

Abolition of Scottish legal services ombudsman

26

Finance

Annual general levy

27

must, subject to subsection (2) and section 29(2), pay to the Commission in respect of each financial year a contribution (referred to in this Part as “the annual general levy”).

may be recovered by it (as a debt) from the relevant professional organisation which is liable under that subsection to pay the sum.

Complaints levy

28

may be recovered by it (as a debt) from the practitioner.

Amount of levies and consultation

29

in respect of each financial year is such amount as may be determined by the Commission, having had regard to any views expressed in its consultation under subsection (4) in respect of the financial year in question.

provide the Commission with an estimate of the number of persons as respects whom it is the relevant professional organisation and who it anticipates should be liable under section 27(1) to pay the annual general levy for the financial year concerned.

Grants or loans by the Scottish Ministers

30

sums of such amounts as the Ministers may determine.

Guarantees

31

Rules as to Commission's practice and procedure

Duty of Commission to make rules as to practice and procedure

32

in the rules.

as to the proposed content of the rules to be made or varied.

Forwarding complaints, advice, monitoring etc.

Duty of relevant professional organisations to forward complaints to Commission

33

Where a relevant professional organisation receives a complaint from a person other than the Commission about—

it must without delay send the complaint and any material which accompanies it to the Commission.

Commission’s duty to provide advice

34

Services complaints: monitoring, reports, protocols and information sharing

35

Conduct complaints: monitoring, reports, guidance and recommendations

36

Obtaining of information from relevant professional organisations

37

Efficient and effective working

38

Monitoring effectiveness of guarantee funds etc.

39

How practitioners deal with complaints: best practice notes

40

The Commission may issue guidance to the relevant professional organisations or to practitioners as respects how practitioners deal with complaints made to them about—

and any such guidance may recommend or include recommendations as respects standards for systems by practitioners for dealing with such complaints.

Miscellaneous

Power by regulations to amend duties and powers of Commission

41

by regulations modify the provisions of this Part for the purposes of adjusting the duties imposed, or the powers conferred, by it on the Commission (including imposing new duties or conferring new powers).

Reports: privilege

42

For the purposes of the law of defamation, the publication of any report under section 13(1), 23(8), 24, 35(2), 36(2) or paragraph 16 of schedule 1 is privileged unless the publication is proved to be made with malice.

Restriction upon disclosure of information: Commission

43

Exemption from liability in damages

44

Giving of notices etc. under Part 1

45

Interpretation of Part 1

46

Part 2 — Conduct and services complaints etc.: other matters

Conduct complaints: duty of relevant professional organisations to investigate etc.

47

Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations

48

Conduct complaints: financial impropriety

49

without the leave of the court.

Power of relevant professional organisations to recover certain expenses

50

Powers in relation to documents and information from third parties

51

Restriction upon disclosure of information: relevant professional organisations

52

Unsatisfactory professional conduct: solicitors

53

(42ZA) (1) Where a conduct complaint suggesting unsatisfactory professional conduct by a practitioner who is a solicitor is remitted to the Council under section 6(a) or 15(5)(a) of the 2007 Act, the Council must having— (a) investigated the complaint under section 47(1) of that Act and made a written report under section 47(2) of that Act; (b) given the solicitor an opportunity to make representations, determine the complaint. (2) Where a complaint is remitted to the Council under section 53ZA, the Council— (a) must— (i) notify the solicitor specified in it and the complainer of that fact and that the Council are required to investigate the complaint as a complaint of unsatisfactory professional conduct; (ii) so investigate the complaint; (iii) having so investigated the complaint and given the solicitor an opportunity to make representations, determine the complaint; (b) may rely, in their investigation, on any findings in fact which the Tribunal makes available to them under section 53ZA(2) as respects the complaint. (3) Where the Council make a determination under subsection (1) or (2) upholding the complaint, they— (a) shall censure the solicitor; (b) may take any of the steps mentioned in subsection (4) which they consider appropriate. (4) The steps are— (a) where the Council consider that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, to direct the solicitor to undertake such education or training as regards the law or legal practice as the Council consider appropriate in that respect; (b) subject to subsection (6), to direct the solicitor to pay a fine not exceeding £2,000; (c) where the Council consider that the complainer has been directly affected by the conduct, to direct the solicitor to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct. (5) The Council may, in considering the complaint, take account of any previous determination by them, the Tribunal or the Court upholding a complaint against the solicitor of unsatisfactory professional conduct or professional misconduct (but not a complaint in respect of which an appeal is pending or which has been quashed ultimately on appeal). (6) The Council shall not direct the solicitor to pay a fine under subsection (4)(b) where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years. (7) Any fine directed to be paid under subsection (4)(b) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court. (8) The Council shall intimate— (a) a determination under subsection (1) or (2); (b) any censure under subsection (3)(a); (c) any direction under subsection (4), to the complainer and the solicitor specified in it by sending to each of them a copy of the determination, censure or, as the case may be, the direction and by specifying the reasons for the determination. (9) A solicitor in respect of whom a determination upholding a conduct complaint has been made under subsection (1) or (2), or a direction has been made under subsection (4) may, before the expiry of the period of 21 days beginning with the day on which the determination or, as the case may be, the direction is intimated to him, appeal to the Tribunal against the— (a) determination; (b) direction (whether or not he is appealing against the determination). (10) A complainer may, before the expiry of the period of 21 days beginning with the day on which a determination under subsection (1) or (2) not upholding the conduct complaint is intimated to him, appeal to the Tribunal against the determination. (11) Where the Council have upheld the conduct complaint but have not directed the solicitor under subsection (4)(c) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the determination upholding the complaint is intimated to him, appeal to the Tribunal against the Council's decision not to make a direction under that subsection. (12) A complainer to whom the Council have directed a solicitor under subsection (4)(c) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the Tribunal against the amount of the compensation directed to be paid. (13) The Scottish Ministers may by order made by statutory instrument— (a) amend subsection (4)(b) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money; (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (4)(c) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate. (14) A statutory instrument containing an order under— (a) subsection (13)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament; (b) subsection (13)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. (15) In this section, “complainer” means the person who made the complaint and, where the complaint was made by the person on behalf of another person, includes that other person. (42ZB) (1) The Council shall, by notice in writing, require every solicitor who is specified in— (a) a direction made under section 42ZA(4); or (b) such a direction as confirmed or varied on appeal by— (i) the Tribunal; or (ii) the Court, to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction. (2) Where an appeal is made under section 42ZA(9) or (12) or 54A(1) or (2) against a direction made under section 42ZA(4), any notice under subsection (1)(a) above relating to the direction shall cease to have effect pending the outcome of the appeal.

.

(53ZA) (1) Where, after holding an inquiry under section 53(1) into a complaint of professional misconduct against a solicitor, the Tribunal— (a) is not satisfied that he has been guilty of professional misconduct; (b) considers that he may be guilty of unsatisfactory professional conduct, it must remit the complaint to the Council. (2) Where the Tribunal remits a complaint to the Council under subsection (1), it may make available to the Council any of its findings in fact in its inquiry into the complaint under section 53(1). (53ZB) (1) On an appeal to the Tribunal under section 42ZA(9) the Tribunal— (a) may quash or confirm the determination being appealed against; (b) if it quashes the determination, shall quash the censure accompanying the determination; (c) may quash, confirm or vary the direction being appealed against; (d) may, where it considers that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, direct the solicitor to undertake such education or training as regards the law or legal practice as the Tribunal considers appropriate in that respect; (e) may, subject to subsection (5), fine the solicitor an amount not exceeding £2000; (f) may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct. (2) On an appeal to the Tribunal under section 42ZA(10) the Tribunal— (a) may quash the determination being appealed against and make a determination upholding the complaint; (b) if it does so, may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct; (c) may confirm the determination. (3) On an appeal to the Tribunal under section 42ZA(11) the Tribunal may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct. (4) On an appeal under section 42ZA(12) the Tribunal may quash, confirm or vary the direction being appealed against. (5) The Tribunal shall not direct the solicitor to pay a fine under subsection (1)(e) where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years. (6) Any fine directed to be paid under subsection (1)(e) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court. (7) A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland. (8) The Scottish Ministers may by order made by statutory instrument— (a) amend subsection (1)(e) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money; (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(f) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate. (9) A statutory instrument containing an order under— (a) subsection (8)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament; (b) subsection (8)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. (10) In this section, “complainer” has the same meaning as in section 42ZA. (53ZC) Where a solicitor fails to comply with a direction given by the Council under section 42ZA(4) (including such a direction as confirmed or varied on appeal by the Tribunal or, as the case may be, the Court) before the expiry of the period specified in the notice relating to that direction given to him under section 42ZB(1), or such longer period as the Council may allow, the direction shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

.

(54A) (1) A solicitor in respect of whom a decision has been made by the Tribunal under section 53ZB(1), (2), (3) or (4) may, before the expiry of the period of 21 days beginning with the day on which the decision is intimated to him, appeal to the Court against the decision. (2) A complainer may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53ZB to which this subsection applies is intimated to him, appeal to the Court against the decision. (3) Subsection (2) applies to the following decisions of the Tribunal under section 53ZB— (a) a decision under subsection (1)(a) quashing the Council's determination upholding the complaint; (b) a decision under subsection (1)(c) quashing or varying a direction by the Council that the solicitor pay compensation; (c) a decision under subsection (1)(f) directing the solicitor to pay compensation; (d) a decision under subsection (2)(b) not to direct the solicitor to pay compensation; (e) a decision under subsection (2)(c) confirming the Council's decision not to uphold the complaint; (f) a decision under subsection (3) confirming the Council's decision not to direct the solicitor to pay compensation; (g) a decision under subsection (4) quashing the Council's direction that the solicitor pay compensation or varying the amount of compensation directed to be paid. (4) On an appeal under subsection (1) or (2), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses. (5) A decision of the Court under subsection (4) shall be final. (6) In this section, “complainer” has the same meaning as in section 42ZA.

.

(55A) (1) In the case of unsatisfactory professional conduct by a solicitor the Court may— (a) fine the solicitor an amount not exceeding £2000; (b) where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct; (c) find the solicitor liable in any expenses which may be involved in the proceedings before it. (2) A decision of the Court under subsection (1) shall be final. (3) The Scottish Ministers may by order made by statutory instrument— (a) amend subsection (1)(a) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money; (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(b) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate. (4) A statutory instrument containing an order under— (a) subsection (3)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament; (b) subsection (3)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. (5) In this section, “complainer” has the same meaning as in section 42ZA.

.

; “unsatisfactory professional conduct” as respects a solicitor has the meaning given (as respects a practitioner who is a solicitor) by section 46 of the 2007 Act

.

Unsatisfactory professional conduct: conveyancing or executry practitioners

54

(20ZA) (1) Where, after holding an inquiry under section 20(2A) into a complaint of professional misconduct against a practitioner, the Tribunal— (a) are not satisfied that he has been guilty of professional misconduct; (b) consider that he may be guilty of unsatisfactory professional conduct, they must remit the complaint to the Council. (2) Where the Tribunal remit a complaint to the Council under subsection (1), they may make available to the Council any of their findings in fact in their inquiry into the complaint under section 20(2A). (20ZB) (1) Where a conduct complaint suggesting unsatisfactory professional conduct by a practitioner is remitted to the Council under section 6(a) or 15(5)(a) of the 2007 Act, the Council must having— (a) investigated the complaint under section 47(1) of that Act and made a written report under section 47(2) of that Act; (b) given the practitioner an opportunity to make representations, determine the complaint. (2) Where a complaint is remitted to the Council under section 20ZA, the Council— (a) must— (i) notify the practitioner specified in it and the complainer of that fact and that the Council are required to investigate the complaint as a complaint of unsatisfactory professional conduct; (ii) so investigate the complaint; (iii) having so investigated the complaint and given the practitioner an opportunity to make representations, determine the complaint; (b) may rely, in their investigation, on any findings in fact which the Tribunal make available to them under section 20ZA(2) as respects the complaint. (3) Where the Council make a determination under subsection (1) or (2) upholding the complaint, they— (a) shall censure the practitioner; (b) may take any of the steps mentioned in subsection (4) which they consider appropriate. (4) The steps are— (a) where the Council consider that the practitioner does not have sufficient competence in relation to any aspect of conveyancing law or legal practice or, as the case may be, executry law or legal practice, to direct him to undertake such education or training as regards the law or legal practice concerned as the Council consider appropriate in that respect; (b) subject to subsection (6) below, to direct the practitioner to pay a fine not exceeding £2,000; (c) where the Council consider that the complainer has been directly affected by the conduct, to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct. (5) The Council may, in considering the complaint, take account of any previous determination by them, the Tribunal or the court upholding a complaint against the practitioner of unsatisfactory professional conduct or professional misconduct (but not a complaint in respect of which an appeal is pending or which has been quashed ultimately on appeal). (6) The Council shall not direct the practitioner to pay a fine under subsection (4)(b) above where, in relation to the subject matter of the complaint, he has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years. (7) Any fine directed to be paid under subsection (4)(b) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court. (8) The Council shall intimate— (a) a determination under subsection (1) or (2); (b) any censure under subsection (3)(a); (c) any direction under subsection (4), to the complainer and the practitioner by sending to each of them a copy of the determination, the censure or, as the case may be, the direction and by specifying the reasons for the determination. (9) A practitioner in respect of whom a determination upholding a conduct complaint has been made under subsection (1) or (2), or a direction has been made under subsection (4) may, before the expiry of the period of 21 days beginning with the day on which the determination or, as the case may be, the direction is intimated to him, appeal to the Tribunal against the— (a) determination; (b) direction (whether or not he is appealing against the determination). (10) A complainer may, before the expiry of the period of 21 days beginning with the day on which a determination under subsection (1) or (2) not upholding the conduct complaint is intimated to him, appeal to the Tribunal against the determination. (11) Where the Council have upheld the conduct complaint but have not directed the practitioner under subsection (4)(c) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the determination upholding the complaint is intimated to him, appeal to the Tribunal against the Council's decision not to make a direction under that subsection. (12) A complainer to whom the Council have directed a practitioner under subsection (4)(c) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the Tribunal against the amount of the compensation directed to be paid. (13) The Scottish Ministers may by order made by statutory instrument— (a) amend subsection (4)(b) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money; (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (4)(c) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate. (14) A statutory instrument containing an order under— (a) subsection (13)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament; (b) subsection (13)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. (20ZC) (1) The Council shall, by notice in writing, require every practitioner who is specified in— (a) a direction made under section 20ZB(4); or (b) such a direction as confirmed or varied on appeal by— (i) the Tribunal; or (ii) the court, to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction. (2) Where an appeal is made under section 20ZB(9) or (12) or 20D(1) or (2) against a direction made under section 20ZB(4), any notice under subsection (1) above relating to the direction shall cease to have effect pending the outcome of the appeal.

.

(20B) (1) On an appeal to the Tribunal under section 20ZB(9) the Tribunal— (a) may quash or confirm the determination being appealed against; (b) if they quash the determination, shall quash the censure accompanying the determination; (c) may quash, confirm or vary the direction being appealed against; (d) may, where they consider that the practitioner does not have sufficient competence in relation to any aspect of conveyancing law or legal practice or, as the case may be, executry law or legal practice, direct him to undertake such education or training as regards the law or legal practice concerned as the Tribunal consider appropriate in that respect; (e) may, subject to subsection (5), fine the practitioner an amount not exceeding £2000; (f) may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct. (2) On an appeal to the Tribunal under section 20ZB(10) the Tribunal— (a) may quash the determination being appealed against and make a determination upholding the complaint; (b) if they do so, may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct; (c) may confirm the determination. (3) On an appeal to the Tribunal under section 20ZB(11) the Tribunal may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct. (4) On an appeal under section 20ZB(12) the Tribunal may quash, confirm or vary the direction being appealed against. (5) The Tribunal shall not direct the practitioner to pay a fine under subsection (1)(e) where, in relation to the subject matter of the complaint, he has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years. (6) Any fine directed to be paid under subsection (1)(e) shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court. (7) A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland. (8) The Scottish Ministers may by order made by statutory instrument— (a) amend subsection (1)(e) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money; (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(f) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate. (9) A statutory instrument containing an order under— (a) subsection (8)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament; (b) subsection (8)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. (20C) Where a practitioner fails to comply with a direction given by the Council under section 20ZB(4) (including such a direction as confirmed or varied on appeal by the Tribunal or, as the case may be, the court) before the expiry of the period specified in the notice relating to that direction given to the practitioner under section 20ZC(1), or such longer period as the Council may allow, the direction shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland. (20D) (1) A practitioner in respect of whom a decision has been made by the Tribunal under section 20B(1), (2), (3) or (4) may, before the expiry of the period of 21 days beginning with the day on which the decision is intimated to him, appeal to the court against the decision. (2) A complainer may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 20B to which this subsection applies is intimated to him, appeal to the court against the decision. (3) Subsection (2) applies to the following decisions of the Tribunal under section 20B— (a) a decision under subsection (1)(a) quashing the Council's determination upholding the complaint; (b) a decision under subsection (1)(c) quashing or varying a direction by the Council that the practitioner pay compensation; (c) a decision under subsection (1)(f) directing the practitioner to pay compensation; (d) a decision under subsection (2)(b) not to direct the practitioner to pay compensation; (e) a decision under subsection (2)(c) confirming the Council's decision not to uphold the complaint; (f) a decision under subsection (3) confirming the Council's decision not to direct the practitioner to pay compensation; (g) a decision under subsection (4) quashing the Council's direction that the practitioner pay compensation or varying the amount of compensation directed to be paid. (4) On an appeal under subsection (1) or (2), the court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the court and as to any order by the Tribunal relating to expenses. (5) A decision of the court under subsection (4) shall be final. (20E) (1) On an appeal under section 20D, the court may— (a) fine the practitioner an amount not exceeding £2000; (b) where it considers that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct; (c) find the practitioner liable in any expenses which may be involved in the proceedings before it. (2) A decision of the court under subsection (1) shall be final. (3) The Scottish Ministers may by order made by statutory instrument— (a) amend subsection (1)(a) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money; (b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(b) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate. (4) A statutory instrument containing an order under— (a) subsection (3)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament; (b) subsection (3)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

.

Report by Commission to Council under section 10(2)(e)

55

(42ZC) (1) Where the Council receive a report from the Commission under section 10(2)(e) of the 2007 Act as respects a practitioner who is a solicitor, they may direct him to undertake such education or training as regards the law or legal practice as the Council consider appropriate in the circumstances. (2) The Council shall by notice in writing— (a) intimate a direction under subsection (1) to the solicitor; (b) require the solicitor to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction. (3) Where an appeal is made under section 42ZD(1) or (3) against a direction under subsection (1), any notice under subsection (2)(b) relating to the direction shall cease to have effect pending the outcome of the appeal. (42ZD) (1) A solicitor in respect of whom a direction has been made under section 42ZC(1) may, before the expiry of the period of 21 days beginning with the day on which it is intimated to him, appeal to the Tribunal against the direction. (2) On an appeal to the Tribunal under subsection (1), the Tribunal may quash, confirm or vary the direction being appealed against. (3) The solicitor may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's decision under subsection (2) is intimated to him, appeal to the Court against the decision. (4) On an appeal to the Court under subsection (3), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses. (5) A decision of the Court on an appeal under subsection (3) shall be final.

.

(20ZD) (1) Where the Council receive a report from the Commission under section 10(2)(e) of the 2007 Act as respects a practitioner, they may direct him to undertake such education or training as regards conveyancing law or legal practice or, as the case may be, executry law or legal practice as they consider appropriate in the circumstances. (2) The Council shall by notice in writing— (a) intimate a direction under subsection (1) to the practitioner; (b) require the practitioner to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction. (3) Where an appeal is made under section 20ZE(1) or (3) against a direction under subsection (1), any notice under subsection (2)(b) relating to the direction shall cease to have effect pending the outcome of the appeal. (20ZE) (1) A practitioner in respect of whom a direction has been made under section 20ZD(1) may, before the expiry of the period of 21 days beginning with the day on which it is intimated to him, appeal to the Tribunal against the direction. (2) On an appeal to the Tribunal under subsection (1), the Tribunal may quash, confirm or vary the direction being appealed against. (3) The practitioner may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's decision under subsection (2) is intimated to him, appeal to the court against the decision. (4) On an appeal to the court under subsection (3), the court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the court and as to any order by the Tribunal relating to expenses. (5) A decision of the court on an appeal under subsection (3) shall be final.

.

Powers to fine and award compensation for professional misconduct etc.

56

(bb) where the solicitor has been guilty of professional misconduct, and where the Tribunal consider that the complainer has been directly affected by the misconduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as the Tribunal may specify to the complainer for loss, inconvenience or distress resulting from the misconduct;

;

(7C) The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend paragraph (bb) of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as they consider appropriate. (7D) A statutory instrument containing an order under subsection (7C) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

;

(9) In subsection (2)(bb), “complainer” has the same meaning as in section 42ZA.

.

(bc) where the Court considers that the complainer has been directly affected by the misconduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the misconduct; or

;

(5) The Scottish Ministers may by order made by statutory instrument— (a) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend paragraph (bc) of subsection (1) by substituting for the amount for the time being specified in that paragraph such other amount as they consider appropriate; (b) amend paragraph (c) of subsection (1) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money. (6) A statutory instrument containing an order under— (a) subsection (5)(a) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament; (b) subsection (5)(b) is subject to annulment in pursuance of a resolution of the Scottish Parliament. (7) In this section, “complainer” has the same meaning as in section 42ZA.

.

(ca) where the Council consider that the complainer has been directly affected by the professional misconduct or, as the case may be, the matter referred to in paragraph (d) of subsection (1), to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Council may specify to the complainer for loss, inconvenience or distress resulting from the misconduct or, as the case may be, the matter; (cb) subject to subsection (2ZA) below, to impose on the practitioner a fine not exceeding £2,000;

;

(2ZA) The Council shall not impose a fine under subsection (2)(cb) above where, in relation to the subject matter of the complaint, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years. (2ZB) Any fine imposed under subsection (2)(cb) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

;

(aa) where the practitioner has been guilty of professional misconduct, and where the Tribunal consider that the complainer has been directly affected by the misconduct, to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Tribunal may specify to the complainer for loss, inconvenience or distress resulting from the misconduct;

;

(11G) The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (2)(ca) or (2B)(aa) by substituting for the amount for the time being specified in that provision such other amount as they consider appropriate. (11H) A statutory instrument containing an order under subsection (11G) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

.

Review of and appeal against decisions on remitted conduct complaints: cases other than unsatisfactory professional conduct

57

(1A) A solicitor or an incorporated practice may, before the expiry of the period of 21 days beginning with the day on which any decision by the Tribunal mentioned in subsection (1B) is intimated to him or, as the case may be, it appeal to the Court against the decision. (1B) The decision is— (a) where the Tribunal was satisfied as mentioned in section 53(1)(a), the finding that the solicitor has been guilty of professional misconduct; (b) where the Tribunal was satisfied as mentioned in section 53(1)(d), the finding that the incorporated practice has failed to comply with any provision of this Act or of any rule made under this Act applicable to the practice; (c) in any case falling within paragraph (a) or (b), or where the decision was made because of the circumstances mentioned in section 53(1)(b) or (c), any decision under section 53(2) or (5). (1C) The Council may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53(2) or (5) is intimated to them, appeal to the Court against the decision; but the Council may not appeal to the Court against a decision of the Tribunal under section 53(2)(bb). (1D) Where the Tribunal has found that a solicitor has been guilty of professional misconduct but has not directed him under section 53(2)(bb) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's finding is intimated to him, appeal to the Court against the decision of the Tribunal not to make a direction under that subsection. (1E) A complainer to whom the Tribunal has directed a solicitor under section 53(2)(bb) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the Court against the amount of the compensation directed to be paid. (1F) On an appeal under any of subsections (1A) to (1E), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses. (1G) A decision of the Court under subsection (1A), (1B), (1C), (1D), (1E) or (1F) shall be final.

;

; (c) the Tribunal has exercised the power conferred by section 53(6B) to direct that its order shall take effect on the day on which it is intimated to the solicitor, firm of solicitors or incorporated practice concerned, the solicitor, firm of solicitors or incorporated practice may, before the expiry of the period of 21 days beginning with that day, apply to the court for an order varying or quashing the direction in so far as it relates to the day on which the order takes effect

;

(2A) In subsections (1D) and (1E), “complainer” has the same meaning as in section 42ZA. (2B) Subsection (1) does not apply to any element of a decision of the Tribunal to which subsections (1A) to (1G) and paragraph (c) of subsection (2) apply. (2C) Subsections (1A) to (1G), and paragraph (c) of subsection (2), apply to any element of a decision of the Tribunal which does not relate to the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

(8A) Where the Council are satisfied that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner, the practitioner may— (a) before the expiry of the period of 21 days beginning with the day on which the finding by the Council to that effect is intimated to him, apply to the Council for a review by them of the finding; (b) before the expiry of the period of 21 days beginning with the day on which the outcome of the review is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash or confirm the decision.

;

(11ZA) Where the Council find that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner but do not direct him under subsection (2)(ca) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Council's finding is intimated to him, apply to the Council for a review by them of their decision not to direct the practitioner under subsection (2)(ca) to pay compensation. (11ZB) A complainer to whom the Council have directed a practitioner under subsection (2)(ca) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, apply to the Council for a review by them of the direction. (11ZC) The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of the review under subsection (11ZA) or (11ZB) is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash, confirm or vary the decision.

;

(aa) a finding by the Tribunal that a practitioner is guilty of professional misconduct or that the circumstances mentioned in subsection (1)(d) apply as respects the practitioner; or

;

(11B) The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of any appeal under subsection (11ZC) is intimated to him, appeal to the court against the Tribunal's decision in the appeal. (11C) Where after holding an inquiry into a complaint against a practitioner, the Tribunal find that he has been guilty of professional misconduct or that the circumstances referred to in subsection (2A)(b) apply as respects him, but do not direct the practitioner under subsection (2B)(aa) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's finding is intimated to him, appeal to the court against the decision of the Tribunal not to make a direction under that subsection. (11D) A complainer to whom the Tribunal have directed a practitioner under subsection (2B)(aa) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the court against the amount of the compensation directed to be paid. (11E) In an appeal under subsection (11C) or (11D), the court may make such order in the matter as it thinks fit.

.

Part 3 — Legal profession: other matters

Constitution of Scottish Solicitors' Discipline Tribunal

58

(1) The Tribunal shall consist of not more than 28 members.

(1A) The Tribunal shall consist of equal numbers of— (a) members (in this Part referred to as “solicitor members”) appointed by the Lord President, who are solicitors recommended by the Council as representatives of the solicitors' profession throughout Scotland; and (b) members (in this Part referred to as “non-lawyer members”) appointed by the Lord President after consultation with the Scottish Ministers, who are not— (i) solicitors; (ii) advocates; (iii) conveyancing practitioners or executry practitioners, within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) (“the 1990 Act”); (iv) persons exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act. (1B) The validity of any proceedings of the Tribunal is not affected by a vacancy in membership of the Tribunal nor by any defect in the appointment of a member. (1C) The Scottish Ministers may by order made by statutory instrument amend paragraph 1 so as to vary the maximum number of members of the Tribunal. (1D) A statutory instrument containing an order made under paragraph 1C is subject to annulment in pursuance of a resolution of the Scottish Parliament.

.

(c) at least 2 non-lawyer members are present.

;

Scottish Solicitors Guarantee Fund: borrowing limit

59

In paragraph 2(2) of Schedule 3 (Scottish Solicitors Guarantee Fund) to the 1980 Act, for “£20,000” substitute “ £1,250,000 ”.

Safeguarding interests of clients

60

(4A) Where— (a) a solicitor is restricted from acting as a principal; and (b) immediately before the restriction the solicitor was a sole solicitor, the right to operate on, or otherwise deal with, any client account in the name of the solicitor or the solicitor's firm shall on the occurrence of those circumstances vest in the Society (notwithstanding any enactment or rule of law to the contrary) to the exclusion of any other person until such time as the Council have approved acceptable other arrangements in respect of the client account.

;

“principal” means a solicitor who is a sole practitioner or is a partner in a firm of two or more solicitors or is a director of an incorporated practice which is a company or a solicitor who is a member of a multi-national practice having its principal place of business in Scotland;

.

Offence for unqualified persons to prepare certain documents

61

In section 32(2) of the 1980 Act (offence for unqualified persons to prepare certain documents), after paragraph (e) add

; or (f) to a member of a body which has made a successful application under section 25 of the 1990 Act but only to the extent to which the member is exercising rights acquired by virtue of section 27 of that Act

.

Notaries public to be practising solicitors

62

(5) Where a person who is a solicitor and a notary public no longer has in force a practising certificate, the Council shall forthwith remove the person's name from the register of notaries public. (6) If the person mentioned in subsection (5) becomes qualified to practise as a solicitor in accordance with section 4, the Council shall restore the person's name to the register of notaries public.

.

Regulation of notaries public

63

After section 59 of the 1980 Act, insert—

(59A) (1) Subject to subsections (2) and (3), the Council may, if they think fit, make rules for regulating in respect of any matter the admission, enrolment and professional practice of notaries public. (2) The Council shall, before making any rules under this section— (a) send to each notary public a draft of the rules; and (b) take into consideration any representations made by any notary public on the draft. (3) Rules made under this section shall not have effect unless the Lord President, after considering any representations the Lord President thinks relevant, has approved the rules so made. (4) If a notary public fails to comply with any rule made under this section that failure may be treated as professional misconduct or unsatisfactory professional conduct on the part of the solicitor who is the notary public.

.

Part 4 — Legal aid

Criminal legal aid in solemn proceedings

64

are repealed.

(23A) (1) Criminal legal aid shall be available on an application made to the Board, where a person is being prosecuted under solemn procedure, if the Board is satisfied after consideration of the person's financial circumstances that the expenses of the case cannot be met without undue hardship to the person or the person's dependants. (2) Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time. (3) The Board may require a person receiving legal aid under subsection (1) to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive criminal legal aid. (4) The Board shall establish a procedure under which any person whose application for legal aid under subsection (1) has been refused may apply to the Board for a review of the application. (5) The Board shall establish a procedure under which any person receiving criminal legal aid under subsection (1) which is subject to conditions by virtue of subsection (2) may apply to the Board for a review of any such condition.

.

Criminal legal aid: conditions and reviews

65

(1A) Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.

.

— (a) after consideration of the financial circumstances of the person, the expenses of the case cannot be met without undue hardship to him or his dependants; (b)

.

(5A) The Board shall establish a procedure under which any person receiving criminal legal aid under this section which is subject to conditions by virtue of subsection (1A) may apply to the Board for a review of any such condition.

.

; or (c) is no longer receiving criminal legal aid in connection with proceedings because the Board is no longer satisfied as to the matters mentioned in paragraphs (a) and (b) of subsection (1)

.

(2B) Where a person is no longer receiving criminal legal aid because the Board is no longer satisfied as mentioned in subsection (2)(c) above the High Court may, at any time prior to the disposal of the appeal, whether or not on application made to it, notwithstanding the Board no longer being so satisfied, determine that it is in the interests of justice that the person should receive criminal legal aid in connection with the appeal, and the Board shall forthwith make such legal aid available to him. (2C) Legal aid made available to a person under subsection (2) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.

.

(3A) The Board shall establish a procedure under which any person whose application for criminal legal aid under subsection (2) has been refused may apply to the Board for a review of his application. (3B) The Board shall establish a procedure under which any person receiving criminal legal aid under subsection (2) which is subject to conditions by virtue of subsection (2C) may apply to the Board for a review of any such condition.

.

(2A) Legal aid made available to a person under subsection (2) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.

.

(3A) The Board shall establish a procedure under which any person whose application for criminal legal aid under subsection (2) has been refused may apply to the Board for a review of his application. (3B) The Board shall establish a procedure under which any person receiving criminal legal aid under this section which is subject to conditions by virtue of subsection (2A) may apply to the Board for a review of any such condition.

.

Criminal Legal Assistance Register: removal of name following failure to comply with code

66

(4A) Where, after carrying out the procedures mentioned in subsection (1) above and, where a time limit has been set under subsection (3) above, after the expiry of that time limit, the Board is satisfied that, regardless of whether or not there is current compliance with the code— (a) the firm have not complied with the code in a material regard, it may remove the names of the firm and, subject to subsection (5) below, of any registered solicitors connected with the firm from the Register; (b) the solicitor has not complied with the code in a material regard, it may remove his name from the Register.

.

Register of advice organisations: advice and assistance

67

(aa) oral or written advice provided by an adviser— (i) on the application of Scots law to any specified categories of circumstances which have arisen in relation to the person seeking advice; (ii) as to any steps which that person might appropriately take having regard to the application of Scots law to those circumstances;

;

  1. assistance provided to a person by an adviser in taking any steps mentioned in paragraph (aa)(ii) above, by taking such steps on his behalf or by assisting him in so taking them;

;

“adviser” means a person who is approved by a registered organisation for the purposes of providing advice and assistance on behalf of the organisation and who is the person by whom advice and assistance is provided;

.

(aa) any outlays which may be incurred by the registered organisation (which approved the adviser) in, or in connection with, the providing of the advice and assistance;

;

(ba) any fees (not being charges for outlays) which, apart from section 11 of this Act, would be properly chargeable by the registered organisation (which approved the adviser) in respect of the advice and assistance;

.

(12A) (1) The Board shall establish and maintain a register of advice organisations (“the register of advice organisations”) of organisations approved by the Board as registered organisations in relation to the provision of advice and assistance by persons approved by such organisations as advisers. (2) A person who— (a) is a solicitor; (b) is an advocate; (c) is a conveyancing practitioner or an executry practitioner, within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40); (d) has acquired any right to conduct litigation or right of audience by virtue of section 27 of that Act, may not be an adviser. (3) Schedule 1A makes further provision about advisers and registered organisations, the register of advice organisations, code of practice for advisers etc. (12B) (1) The Scottish Ministers may by regulations specify categories of circumstances for the purposes of paragraph (aa) of the definition of “advice and assistance” in section 6(1) of this Act. (2) The power under subsection (1) may specify different categories for different purposes. (3) In this Act— (a) “advice and assistance” as defined in section 6(1)(c) is limited to the extent to which it is competent for the adviser to perform any steps on behalf of the person or by assisting him in so taking them; (b) “assistance by way of representation” as defined in section 6(1) includes advice and assistance provided by an adviser but only to the extent to which it is competent for the adviser to perform such steps referred to in that definition.

.

(1A) A registered organisation shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by it in respect of the advisers it approves providing advice and assistance under this Act.

;

“adviser” has the meaning given to it in section 6(2) of this Act; “adviser code” means the code of practice in relation to the register of advice organisations for the time being in force under Schedule 1A to this Act;

;

“the register of advice organisations” means the register established and maintained under section 12A of this Act;

;

“registered organisation” means an organisation whose name appears on the register of advice organisations;

.

SCHEDULE 1A (1) (1) An organisation which satisfies the Board that it complies with the relevant provisions of the adviser code shall be approved by the Board as an organisation that may approve a person to provide advice and assistance on behalf of the organisation; and the Board shall make an appropriate entry on the register of advice organisations. (2) An individual may apply for entry on the register of advice organisations as an organisation; and if the Board is satisfied that the individual complies with the relevant provisions of the adviser code in relation to an organisation, the Board shall approve the individual and treat the individual as an organisation for the purposes of this Schedule. (3) The Board must make the register of advice organisations available for public inspection, without charge, at all reasonable times. (4) In this Schedule an “organisation” includes— (a) a firm of solicitors; (b) an incorporated practice within the meaning of section 34(1A)(c) of the Solicitors (Scotland) Act 1980 (c. 46). (2) (1) An application for entry on the register of advice organisations shall be made in such form as the Board may determine, and shall be accompanied by such documents as the Board may specify. (2) On receipt of an application the Board shall make such enquiries as it thinks appropriate for the purposes of determining whether the applicant complies with the relevant provisions of the adviser code. (3) The Board may determine an application to be entered on the register of advice organisations by— (a) granting the application; or (b) refusing the application. (4) Where the Board decides to refuse an application it shall as soon as practicable thereafter send the applicant, by recorded delivery, a written note of its reasons. (3) (1) In determining any application for entry on the register of advice organisations, the Board may limit the grant of the application to any of the particular categories of circumstances as specified by virtue of section 12B(1). (2) Where the Board limits the grant of an application as mentioned in sub-paragraph (1), the entry made on the register under paragraph 1(1) must state the categories in relation to which the organisation is registered; and any adviser approved by the organisation may provide advice and assistance under this Act only in relation to those categories. (4) (1) The Board shall prepare a code of practice (an “adviser code”) in relation to advisers and registered organisations. (2) The adviser code prepared under sub-paragraph (1) must include— (a) the conditions to be complied with in order to qualify for registration; (b) the types of organisations eligible for registration; (c) the conditions to be complied with in order for a person to be approved by a registered organisation as an adviser; (d) the laying down of standards, conduct, practice and training expected in relation to— (i) the provision of advice and assistance by advisers; (ii) the supervision of such activity by registered organisations; (e) arrangements for dealing with complaints about the activities of advisers and registered organisations; (f) arrangements for monitoring the activities of advisers and registered organisations. (3) The adviser code prepared under sub-paragraph (1) has effect on such date as the Board may confirm. (4) But the adviser code may not have effect unless and until it has been— (a) approved by the Scottish Ministers; and (b) the Board has laid a copy of the prepared code before the Scottish Parliament. (5) The Board is to publish the adviser code in such way as, in its opinion, is likely to bring it to the attention of those interested in it. (6) The Board is to— (a) keep the adviser code under review; and (b) revise it where appropriate. (7) The provisions of this paragraph apply in relation to any revision of the adviser code as they apply in relation to the version originally prepared. (8) Registered organisations shall comply with the relevant requirements of the adviser code. (5) The Board is to monitor— (a) the provision of advice and assistance and related activities by advisers; (b) compliance with the adviser code by registered organisations. (6) (1) Where it appears to the Board (whether or not following a complaint made to it) that a registered organisation may not be, or may not have been, complying with the adviser code, it shall investigate the matter in such manner as it thinks fit. (2) Where the Board conducts an investigation under sub-paragraph (1) it must allow the registered organisation concerned the opportunity to make representations. (3) Following an investigation under sub-paragraph (1), the Board may give the registered organisation concerned an opportunity, within such time as it may specify, to remedy any defect in the compliance with the adviser code. (4) Where, after carrying out the procedures mentioned in sub-paragraph (1) and, where a time limit has been set under sub-paragraph (3), after the expiry of that time limit, the Board is satisfied that the registered organisation is not complying with the adviser code, it shall remove from the register of advice organisations the name of the organisation. (5) Where, after carrying out the procedures mentioned in sub-paragraph (1) and, where a time limit has been set under sub-paragraph (3), after the expiry of that time limit, the Board is satisfied that, regardless of whether or not there is current compliance with the code, the registered organisation has not complied with the code in a material regard, it may remove the name of the organisation from the register of advice organisations. (6) Where the Board decides to remove the name of an organisation from the register of advice organisations in accordance with sub-paragraph (4) it shall as soon as practicable thereafter send the organisation, by recorded delivery, a written note of its reasons. (7) (1) A decision by the Board to refuse an application under paragraph 2(3)(b) may be appealed by the applicant to the Court of Session within 21 days of the receipt of the notification of the Board's reasons under paragraph 2(4). (2) A decision by the Board under paragraph 6(4) or (5) to remove from the register of advice organisations the name of a registered organisation may be appealed to the Court of Session within 21 days of the receipt of the notification of the Board's reasons under paragraph 6(6); but the making of an appeal shall not have the effect of restoring the name to the register of advice organisations. (3) An appeal under sub-paragraph (1) or (2) may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit.

.

Scottish Legal Aid Board: grants for certain purposes

68

(ac) such sums as are, by virtue of section 4A, due out of the Fund to any person;

;

(ad) any sums recovered from a person in connection with a grant made by the Board in accordance with section 4A;

.

(4A) (1) The Board may, on an application made to it by any person, make grants of such amount and subject to such conditions (including conditions as to repayment) as it may determine to the person in respect of— (a) any of the matters mentioned in subsection (2); (b) any of the purposes mentioned in subsection (3). (2) The matters are— (a) any civil legal aid or advice and assistance in relation to civil matters provided, or to be provided, by any solicitor or counsel; (b) any advice and assistance in relation to civil matters provided, or to be provided, by any adviser; (c) any advice, assistance or representation (not falling within paragraphs (a) or (b)) provided, or to be provided, by any person, which is connected to civil matters. (3) The purposes are facilitating, supporting and developing the provision of any of the matters referred to in subsection (2). (4) The Scottish Ministers must specify a limit to the total amount that may be paid out of the Fund by virtue of subsection (1). (5) In specifying any limit under subsection (4) the Scottish Ministers must specify the period in relation to which that limit applies. (6) Any grant made under subsection (1) must be made in accordance with an approved plan. (7) The Board must prepare and publish a plan as to the criteria which the Board will apply in considering whether or not to make such a grant; and the Board must submit the plan to the Scottish Ministers for approval. (8) The Scottish Ministers may approve a plan submitted to them under subsection (7) with or without modification. (9) The Scottish Ministers may at any time— (a) approve a modification of an approved plan proposed by the Board or withdraw approval of such a plan or modification; (b) require the Board to prepare and publish a plan under subsection (7). (10) An application under subsection (1) must include such information as the Board may reasonably require. (11) In preparing and publishing the plan under subsection (7) the Board must do so in accordance with such directions as the Scottish Ministers may give. (12) Any money due to a person by virtue of this section shall be paid to the person by the Board out of the Fund. (13) Any money paid to a person under subsection (1) as provided in subsection (12), in respect of— (a) any civil legal aid or advice and assistance provided by any solicitor or counsel; (b) any advice and assistance provided by an adviser, shall be taken to be a payment in accordance with this Act; and no other payment may be made out of the Fund in respect of that civil legal aid or, as the case may be, advice and assistance. (14) In this section, “approved plan” means a plan approved, for the time being, by the Scottish Ministers under subsection (8); and includes any part or modification of the plan so approved. (15) For the purposes of this section, “person” includes a body corporate or unincorporate.

.

Financial limit: advice and assistance

69

(1A) The circumstances are that— (a) the advice and assistance requires to be given urgently; and (b) it is not possible to seek the approval of the Board before the advice and assistance requires to be given, and following which an application may be made under subsection (1B) for the Board's approval. (1B) If the Board is satisfied that the circumstances set out in subsection (1A) were present it may, on application by the solicitor or adviser concerned, give its approval to the limit having been exceeded.

.

(4) In the circumstances set out in subsection (5), no application may be made for the Board's approval for the cost of giving the advice and assistance— (a) to exceed the limit applicable under this section; or (b) to that limit having been exceeded. (5) The circumstances are that the matter with which the advice and assistance is concerned is not— (a) specified as a distinct matter for the purposes of advice and assistance by virtue of regulations made under this Act; or (b) being treated as if it were a distinct matter by virtue of such regulations.

.

Further provision in relation to the Fund: advice and assistance

70

(ba) any sums as are, by virtue of section 12C of this Act, due out of the Fund;

.

(12C) (1) This section applies where, in respect of any matter in connection with which advice and assistance has been provided, the sums mentioned in section 4(3)(aa), (ca) and (cb) which are payable into the Fund have been so paid. (2) There shall be paid out of the Fund any sum which, in the opinion of the Board the party concerned would have been likely to receive, after the operation of section 12(3), if the advice and assistance provided had not been provided— (a) by virtue of a grant made under section 4A; or (b) by a solicitor in the course of employment to which Part V of this Act applies.

.

Availability of civil legal aid for defamation or verbal injury

71

(1C) In the case of proceedings described in paragraph 1 of Part II of Schedule 2 to this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) and section 15 of this Act and subject to paragraph 2 of Part II of Schedule 2, such criteria as may be set out by the Scottish Ministers in directions given to the Board are met. (1D) A direction given under subsection (1C) may— (a) include criteria in respect of which the Board may require to satisfy itself; (b) make different provision for different purposes; (c) be varied or revoked at any time. (1E) Where the Scottish Ministers give a direction under subsection (1C)— (a) the Board must comply with it; (b) the Scottish Ministers must arrange for the direction to be published in such manner as they consider appropriate.

.

Civil legal aid: conditions and reviews

72

(1F) Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time. (1G) The Board shall establish a procedure under which any person receiving civil legal aid under this section which is subject to conditions by virtue of subsection (1F) may apply to the Board for a review of any such condition.

.

(5A) Legal aid made available to a person under subsection (2)(d) above or subsection (9) below may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.

.

(6A) The Board shall establish a procedure under which any person whose application for legal aid under subsection (2)(d) above or subsection (9) below has been refused may apply to the Board for a review of his application. (6B) The Board shall establish a procedure under which any person receiving legal aid under subsection (2)(d) above or subsection (9) below which is subject to conditions by virtue of subsection (5A) may apply to the Board for a review of any such condition.

.

Availability of legal aid: Judicial Committee of the Privy Council

73

Solicitors employed by the Scottish Legal Aid Board

74

(aza) any expenses incurred by the Board in connection with the provision by solicitors employed by it by virtue of section 27(1) of this Act of— (i) advice and assistance in relation to civil matters; (ii) civil legal aid; (iii) any services as are mentioned in section 26(2) of this Act;

.

(1A) The provisions of paragraph 8 of Schedule 1 to this Act shall apply to solicitors employed by the Board by virtue of subsection (1) as they apply to employees appointed by the Board under that paragraph.

;

Contributions, and payments out of property recovered

75

(aba) any sums repayable to a person in accordance with section 17(2C) of this Act; (abb) any sums payable to a person in accordance with section 17(2D) of this Act;

.

(ca) any sum recovered as to expenses under an award of a court or an agreement or otherwise in favour of any person in respect of any matter in connection with which advice and assistance has been provided to the person— (i) by virtue of a grant made under section 4A; or (ii) by a solicitor in the course of employment to which Part V of this Act applies; (cb) any sum which is to be paid out of property (of whatever nature and wherever situated) recovered or preserved for any person in respect of any matter in connection with which advice and assistance has been provided to the person (including his rights under any settlement arrived at in connection with that matter in order to avoid or bring to an end any proceedings)— (i) by virtue of a grant made under section 4A; or (ii) by a solicitor in the course of employment to which Part V of this Act applies;

.

(2C) If the total contribution to the Fund made by a person in respect of any proceedings exceeds the net liability of the Fund on the person's account, the excess shall be repaid to the person. (2D) Any sums paid to the Board under subsection (2B) which are no longer required to meet the net liability of the Fund on a person's account, having taken into account any relevant sums paid to the Board under subsection (2A), shall be paid to the person. (2E) Nothing in subsection (2B) shall prejudice the power of the court to allow any damages or expenses to be set off. (2F) In this section, the reference to a “net liability of the Fund” on a legally assisted person's account is a reference to the aggregate amount of— (a) the sums paid or payable to a solicitor or counsel out of the Fund on the person's account, in respect of the proceedings in question; and (b) any sums paid or payable to a solicitor, counsel or registered organisation (in respect of the advisers it approves) out of the Fund on the person's account, for advice and assistance in connection with the proceedings in question or any matter to which those proceedings relate, being sums not recouped by the Fund out of expenses in respect of those proceedings, or as a result of any right which the person may have to be indemnified against such expenses. (2G) Where the solicitor for a legally assisted person is employed by the Board for the purposes of Part V of this Act, references in subsection (2F) to sums payable out of the Fund include references to sums which would have been so payable had the legal aid and, as the case may be, advice and assistance been provided in circumstances other than those specified in subsection (2I). (2H) Where— (a) civil legal aid is or has been provided in respect of the proceedings in question by virtue of a grant made under section 4A; and (b) advice and assistance is or has been provided in connection with the proceedings by virtue of a grant made under section 4A, references in subsection (2F) to sums payable out of the Fund include references to sums which would have been so payable had the legal aid and, as the case may be, advice and assistance been provided in circumstances other than those specified in subsection (2I). (2I) The circumstances are that the legal aid and, as the case may be, advice and assistance has been provided— (a) by virtue of a grant made under section 4A; or (b) by a solicitor in the course of employment to which Part V of this Act applies.

.

Regulations under section 36 of the 1986 Act

76

(ca) make provision allowing the Board to determine— (i) the matters which, subject to subsection (2A), are or are not to be treated as distinct matters for the purposes of advice and assistance; (ii) on a case by case basis, matters which may be treated as if they were distinct matters for the purposes of advice and assistance;

.

(2A) Regulations made under this section which include provision as mentioned in subsection (2)(ca)(i) must include provision to the effect that— (a) any determination by the Board as to the matters which are or are not to be so treated as distinct matters may only be made after consultation with the Law Society; (b) where a matter has been determined by the Board to be so treated as a distinct matter, the Board may not determine that the matter is no longer to be so treated unless the Scottish Ministers consent.

.

Part 5 — General

Advice, services or activities to which Act does not apply

77

the advice, services or activities mentioned in subsection (2).

Ancillary provision

78

Regulations or orders

79

is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

Interpretation

80

In this Act—

Minor and consequential modifications

81

Schedule 5 makes—

Short title and commencement

82

SCHEDULE 1

Status

1

Membership of the Commission

2

Terms of appointment etc.

3
4

In appointing members, the Scottish Ministers are to have regard to the desirability of including—

Removal of members

5

Disqualification from membership

6

Remuneration, allowances and pensions for members

7

of such pensions, allowances or gratuities to or in respect of any person who is or has ceased to be a member of the Commission, as the Commission may determine.

Chief executive and other employees

8

of such pensions, allowances or gratuities to or in respect of any person who is or has ceased to be an employee of it, as the Commission may determine.

Accountable officer

9

Procedure

10

Committees

11

General powers

12

Delegation of functions

13

to exercise such of its functions (to such extent) as it may determine.

to be exercised only by one of the Commission's members;

Location of office

14

Accounts

15

in accordance with such directions as the Scottish Ministers may give.

Reports

16

SCHEDULE 2

1

Where the Commission—

and the person refuses or fails to produce or deliver any of the documents or the information within the time specified in the notice or requirement or to cause them to be so produced or delivered, the Commission may apply to the court for an order requiring the person to produce or deliver the documents or information or to cause them or it to be produced or delivered to the person appointed at the place fixed by the Commission within such time as the court may order.

2

Where the Commission takes possession of any such documents or information which have or has been produced or delivered to it, it must—

a notice giving particulars and the date on which it took possession.

3

Before the expiry of the period of 14 days after service of a notice under paragraph 2 the person on whom the notice has been served may apply to the court for an order directing the Commission to return such documents or information to the person from whom they were received by the Commission or to such other person as the applicant may request; and on the hearing of any such application the court may make the order applied for or such other order as it thinks fit.

4

If no application is made to the court under paragraph 3, or if the court on any such application directs that the documents or information in question remain in the custody or control of the Commission, the Commission may make enquiries to ascertain the person to whom they belong and may deal with the documents or information in accordance with the directions of the person.

SCHEDULE 3

Provision which must be included

1

The rules as to the Commission's practice and procedure made under section 32(1) must include provision—

unless the complainer has, for the purposes of Parts 1 and 2 of this Act, waived any right of confidentiality in relation to the matters to which the complaint relates;

Provision which may in particular be included

2

The rules as to the Commission's practice and procedure made under section 32(1) may in particular include provision—

a complaint under Part 1 is not to have an effect under the Part where the Commission considers that appropriate in the interests of fairness;

3

In this schedule—

SCHEDULE 4

1

Where a relevant professional organisation gives notice—

and the person refuses or fails to produce or deliver any of the documents within the time specified in the notice or to cause them to be so produced or delivered, the relevant professional organisation may apply to the court for an order requiring the person to produce or deliver the documents or to cause them to be produced or delivered to the person appointed at the place fixed by the relevant professional organisation within such time as the court may order.

2

Where a relevant professional organisation takes possession of any such documents which have been produced or delivered to it, it must—

a notice giving particulars and the date on which it took possession.

3

Before the expiry of the period of 14 days after service of a notice under paragraph 2 the person on whom the notice has been served may apply to the court for an order directing the relevant professional organisation to return such documents to the person from whom they were received by the relevant professional organisation or to such other person as the applicant may request; and on the hearing of any such application the court may make the order applied for or such other order as it thinks fit.

4

If no application is made to the court under paragraph 3, or if the court on any such application directs that the documents in question remain in the custody or control of the relevant professional organisation, the relevant professional organisation may make enquiries to ascertain the person to whom they belong and may deal with the documents in accordance with the directions of that person.

SCHEDULE 5

Solicitors (Scotland) Act 1980 (c. 46)

1

; (aa) that under section 47(2) of the 2007 Act of determining what action to propose, or take, as respects a conduct complaint remitted to them under section 6(a) or 15(5)(a) of that Act; (ab) that under— (i) section 42ZA(1) or (2) of this Act or section 20ZB(1) or (2) of the 1990 Act of determining whether or not to uphold a conduct complaint so remitted which suggests unsatisfactory professional conduct; (ii) section 42ZA(3)(b) of this Act or section 20ZB(3)(b) of the 1990 Act of determining what steps to take when upholding such a conduct complaint; (ac) that under section 51(1) of this Act of determining whether or not to make a complaint to the Tribunal as respects a conduct complaint so remitted which suggests professional misconduct; (ad) that

;

(14A) Where the Commission makes a determination under section 9(1) of the 2007 Act upholding a services complaint against a solicitor, the Council may, if they consider that the complaint has a bearing on his fitness to exercise any right of audience held by him by virtue of this section and that it is appropriate to do so, suspend or revoke the right.

.

(4ZA) If any solicitor fails to comply with any rule made under this section, that failure may be treated as professional misconduct or unsatisfactory professional conduct.

;

(4C) Subsection (4) does not apply to any failure to which subsection (4ZA) applies. (4D) Subsection (4ZA) applies to any element of failure which does not involve the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

(4) This section does not apply to any element of dishonesty other than that involving the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

(3) This section does not apply to any element of undue delay other than that involving the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

(10) The Council shall notify the Commission of any case— (a) where any of the following things occur— (i) they withdraw a practising certificate under subsection (2); (ii) they terminate a suspension from practice and restore a practising certificate under subsection (3); (iii) the Court makes an order under subsection (8); and (b) which does not involve a complaint remitted to the Council under section 6(a) or 15(5)(a) of the 2007 Act.

.

(5) The Council shall notify the Commission of any case— (a) where any of the following things occur— (i) they withdraw a practising certificate under subsection (1); (ii) they terminate a suspension from practice and restore a practising certificate under subsection (2); (iii) the Court makes an order under subsection (3); and (b) which does not involve a complaint remitted to the Council under section 6(a) or 15(5)(a) of the 2007 Act.

.

following documents— (a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the solicitor or his firm or, as the case may be, the incorporated practice; (b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which the solicitor is a sole trustee or is a co-trustee only with one or more of his partners or employees or, as the case may be, of which the incorporated practice or one of its employees is a sole trustee or of which the practice is a co-trustee only with one or more of its employees.

;

(5) This section does not apply to any element of professional misconduct other than that involving the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

(3A) If the solicitor or, as the case may be, the incorporated practice fails so to satisfy the Council, the Council may— (a) require the production or delivery to any person appointed by them at a time and place fixed by them of the documents mentioned in subsection (3B); (b) take possession of all such documents; and (c) apply to the Court for an order that no payment be made by any banker, building society or other body named in the order out of any banking account or any sum deposited in the name of the solicitor or his firm or, as the case may be, the incorporated practice without the leave of the Court and the Court may make such order. (3B) The documents are— (a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the solicitor or his firm or, as the case may be, the incorporated practice; (b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which the solicitor is a sole trustee or is a co-trustee only with one or more of his partners or employees or, as the case may be, of which the incorporated practice or one of its employees is a sole trustee or of which the practice is a co-trustee only with one or more of its employees.

;

(4B) Part II of Schedule 3 has effect in relation to the powers of the Council under subsection (3A).

;

(3A) The things are to— (a) require the production or delivery to any person appointed by the Council at a time and a place fixed by them of the documents mentioned in subsection (3B); (b) take possession of all such documents; and (c) apply to the Court for an order that no payment be made by any banker, building society or other body named in the order out of any banking account or any sum deposited in the name of the solicitor or his firm without the leave of the Court and the Court may make such order. (3B) The documents are— (a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the solicitor or his firm; (b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which he is a sole trustee or is a co-trustee only with one or more of his employees.

;

(4A) Part II of Schedule 3 has effect in relation to the powers of the Council under subsection (2) or (3).

.

(2A) The power in subsection (2) to report to the Tribunal any case where it appears that a solicitor may have been guilty of professional misconduct does not apply to any element of professional misconduct other than that involving the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

(iii) appeals under section 20ZB(9), (10), (11) or (12) or 20ZE(1) of that Act;

;

(3) Rules made by the Tribunal under subsection (2) for regulating the making, hearing or determining of appeals referred to in paragraph (aa) or (ab)(ii) of that subsection may include provision as to persons being entitled, or required by the Tribunal, to appear or be represented at the appeal.

.

(3ZA) The Tribunal shall not impose a fine under subsection (2)(c)— (a) where the Tribunal is proceeding on the ground referred to in subsection (1)(a) and the solicitor, in relation to the subject matter of the Tribunal's inquiry, has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years; (b) where the Tribunal is proceeding on the ground referred to in subsection (1)(b).

;

(7B) A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

;

(10) The powers of the Tribunal under paragraph (bb) of subsection (2), and subsection (3ZA), apply to any element of a decision of the Tribunal which does not relate to the provision of advice, services or activities referred to in section 77(2) of the 2007 Act. (11) Subsection (3) does not apply to any element of a decision of the Tribunal to which subsection (3ZA) applies.

.

(2A) The solicitor, firm of solicitors or, as the case may be, the incorporated practice may, before the expiry of the period of 21 days beginning with the day on which the decision of the Tribunal under subsection (2) is intimated to him or, as the case may be, it, appeal to the Court against the decision. (2B) The Council may, before the expiry of the period of 21 days beginning with the day on which the decision of the Tribunal under subsection (2) is intimated to them, appeal to the Court against the decision. (2C) On an appeal under subsection (2A), the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses. (2D) A decision of the Court under subsection (2C) shall be final.

.

(8) The power under paragraph (bc) of subsection (1) applies to any element of a decision of the Court which does not relate to the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

“the 2007 Act” means the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5);

;

“the Commission” means the Scottish Legal Complaints Commission;

.

(5) In this Act, references to “inadequate professional services” do not include any professional services other than the advice, services or activities referred to in section 77(2) of the 2007 Act.

.

(ca) in paragraph 11, for the words “complainer and respondent” there shall be substituted “ parties to the appeal ”; (cb) in paragraph 12— (i) for the words “the complainer or the respondent” there shall be substituted “ any party to the appeal ”; (ii) for the word “respondent” where it second appears there shall be substituted “ solicitor, the firm of solicitors or, as the case may be, the incorporated practice ”; (iii) for the words “complainer and to the respondent” there shall be substituted “ parties to the appeal ”; (cc) in paragraph 14A(a), after the word “complaint” there shall be inserted “ (as respects which the appeal was made) ”; (cd) in paragraph 15, for the words “respondent, the complainer and, as the case may be, the person who made the complaint as respects which the appeal was made to the Tribunal” there shall be substituted “ parties to the appeal and, if the person who made the complaint as respects which the appeal was made was not a party to the appeal, to that person ”; (ce) in paragraph 16, after paragraph (e) there shall be inserted— (ea) under section 42ZD(2); or (eb) under section 53ZB(1), (2), (3) or (4); or

;

(d) in paragraph 19, for the words from the beginning to “respondent” there shall be substituted “ The Tribunal may make such order as it thinks fit as to the payment by any party to the appeal ”;

;

Legal Aid (Scotland) Act 1986 (c. 47)

2

(aa) for the purpose of any determination or investigation by the Scottish Legal Complaints Commission under the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) (“the 2007 Act”);

;

; (f) for the purposes of, or required by virtue of, section 50 of the Freedom of Information (Scotland) Act 2002 (asp 13)

.

Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40)

3

(11C) Failure by a practitioner to comply with any rule made under subsection (11) or any rule or regulation referred to in subsection (11B) may be treated as professional misconduct or unsatisfactory professional conduct.

.

(10C) Failure by a practitioner to comply with any rule made under subsection (10) or any rule or regulation referred to in subsection (10B) may be treated as professional misconduct or unsatisfactory professional conduct.

.

(11F) A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

;

(11A) Where the Council make a direction under subsection (3) or (4) or apply to the court for an order under subsection (10), the Council shall notify the Commission to that effect and provide it with details of their findings in any inquiry held by virtue of subsection (1) as respects the practitioner concerned.

.

(a) in paragraph 9(a)(i) and (b), the words “or, as the case may be, of provision of inadequate professional services” were omitted;

;

“complainer” means the person who made the complaint and, where the complaint was made by the person on behalf of another person, includes that other person;

;

“the court” means the Court of Session;

;

; “the Tribunal” means the Scottish Solicitors' Discipline Tribunal; “unsatisfactory professional conduct” has the meaning given (as respects a conveyancing practitioner or, as the case may be, an executry practitioner) by section 46 of the 2007 Act

.

(6) This section does not apply to any element of a conduct complaint other than that involving the provision of advice, services or activities referred to in section 77(2) of the 2007 Act.

.

“the 2007 Act” means the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5).

.

Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7)

4

In the Ethical Standards in Public Life etc. (Scotland) Act 2000, in schedule 3 (devolved public bodies) after the entry relating to the Scottish Legal Aid Board insert— “ The Scottish Legal Complaints Commission ”.

Freedom of Information (Scotland) Act 2002 (asp 13)

5

In the Freedom of Information (Scotland) Act 2002, in schedule 1 (Scottish public authorities) after paragraph 92 insert—

(92A) The Scottish Legal Complaints Commission.

.

Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)

6

In the Public Appointments and Public Bodies etc. (Scotland) Act 2003, in schedule 2 (specified authorities) after the entry relating to the Scottish Legal Aid Board insert— “ Scottish Legal Complaints Commission ”

Receipt of complaints: preliminary steps

Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations

Unsatisfactory professional conduct: solicitors

Report by Commission to Council under section 10(2)(e)

Review of and appeal against decisions on remitted conduct complaints: cases other than unsatisfactory professional conduct

Constitution of Scottish Solicitors' Discipline Tribunal

Scottish Solicitors Guarantee Fund: borrowing limit

Offence for unqualified persons to prepare certain documents

Notaries public to be practising solicitors

Regulation of notaries public

Criminal legal aid in solemn proceedings

Criminal legal aid: conditions and reviews

Criminal Legal Assistance Register: removal of name following failure to comply with code

Register of advice organisations: advice and assistance

Scottish Legal Aid Board: grants for certain purposes

Financial limit: advice and assistance

Availability of civil legal aid for defamation or verbal injury

Civil legal aid: conditions and reviews

Availability of legal aid: Judicial Committee of the Privy Council

Solicitors employed by the Scottish Legal Aid Board

Regulations under section 36 of the 1986 Act

Ancillary provision

Short title and commencement

Status

Membership of the Commission

Terms of appointment etc.

Removal of members

Disqualification from membership

Remuneration, allowances and pensions for members

Chief executive and other employees

Accountable officer

Procedure

Committees

General powers

Delegation of functions

Location of office

Accounts

Reports

Solicitors (Scotland) Act 1980 (c. 46)

Legal Aid (Scotland) Act 1986 (c. 47)

Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40)

Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7)

Freedom of Information (Scotland) Act 2002 (asp 13)

Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)

Editorial notes

[^c20881301]: Act applied (1.10.2008) by Legal Services Act 2007 (c. 29), ss. 195(1), 211(with ss. 29, 192, 193); S.I. 2008/1436, art. 3(a) (with transitional provisions in art. 4)

[^c20884611]: S. 1 wholly in force at 23.11.2007; s. 1 not in force at Royal Assent, see s. 82; s. 1 in force for certain purposes at 19.3.2007 by S.S.I. 2007/140, art. 2; s. 1 otherwise in force at 23.11.2007 by S.S.I. 2007/497, art. 2

[^c20884981]: S. 69 partly in force; s. 69 not in force at Royal Assent, see s. 82; s. 69(1)(2)(a)(4) in force at 8.2.2007 by S.S.I. 2007/57, art. 2

[^c22558091]: S. 81 wholly in force at 1.10.2008; s. 81 not in force at Royal Assent, see s. 82; s. 81 in force at 19.3.2007 for specified purposes by S.S.I. 2007/140, art. 2(d); s. 81 in force at 23.11.2007 for further specified purposes by S.S.I. 2007/497, art. 2(c); s. 81 in force so far as not already commenced by S.S.I. 2008/311, art. 2(f)

[^c20885251]: S. 82 power exercised as follows: 8.2.2007 appointed for specified provisions by {S.S.I. 2007/57}, art. 2; 19.3.2007 appointed for specified provisions by {S.S.I. 2007/140}, art. 2; 30.7.2007 appointed for specified provisions by {S.S.I. 2007/335}, art. 2; 23.11.2007 appointed for specified provisions by {S.S.I. 2007/497}, art. 2; 1.10.2008 appointed for specified provisions by {S.S.I. 2008/311}, art. 2; 25.11.2010 appointed for specified provisions by {S.S.I. 2010/376}, art. 2

[^c20881381]: Sch. 1 para. 16(1) modified (1.10.2008) by The Legal Profession and Legal Aid (Scotland) Act 2007 (Transitional, Savings and Consequential Provisions) Order 2008 (S.S.I. 2008/332), art. 5

[^c20881361]: Sch. 1 para. 16(1) modified (1.10.2008) by The Legal Services Act 2007 (Transitional, Savings and Consequential Provisions) (Scotland) Order 2008 (S.I. 2008/2341), art. 5

[^c20885281]: Sch. 5 para. 1 wholly in force at 1.10.2008; Sch. 5 para. 1(15)(16) in force at 23.11.2007 by S.S.I. 2007/497, art. 2; Sch. 5 para. 1 in force so far as not already commenced at 1.10.2008 by S.S.I. 2008/311, {act. 2}

[^c20885291]: Sch. 5 para. 3 partly in force; Sch. 5 para. 3 not in force at Royal Assent, see s. 82; Sch. 5 para. 3(10) in force at 19.3.2007 by S.S.I. 2007/140, art. 2; Sch. 5 para. 3(1)-(6)(7)(a)(i)(ii)(b)(8)(9)(11)(12) in force at 1.10.2008 by S.S.I. 2008/311, art. 2

[^key-84e55a24c552f8413db213702e3b9bbc]: Word in s. 75(4) substituted (23.3.2011) by The Legal Profession and Legal Aid (Scotland) Act 2007 (Modification and Consequential Provisions) Order 2011 (S.S.I. 2011/235), arts. 2(1), 7