Legalize / United Kingdom / Public General Act

Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Type Public General Act

Publication 1990-11-01

Last updated 2026-03-05

State In force

Department Statute Law Database

Source legislation.gov.uk

articles 72

Reform history JSON API

(b) stating general criteria to which members of the body should have regard in determining whether to accept instructions in particular circumstances; and

(c) securing, through such of their officers as they think appropriate, that, where reasonably practicable, any person wishing to be represented before any court by one of their members holding an appropriate right of audience is so represented,

and, for the purposes of such rules, the Inner and Outer Houses of the Court of Session, and the High Court of Justiciary exercising its appellate jurisdiction, may be treated as separate courts.

(6) A person exercising any right of audience held by virtue of this section shall have the same immunity from liability for negligence in respect of his acts or omissions as if he were an advocate, and no act or omission on the part of any such person shall give rise to an action for breach of contract in relation to the exercise by him of such a right of audience.

(7) Any person who wilfully and falsely—

(a) pretends to have any right to conduct litigation or right of audience by virtue of this section; or

(b) where he has any such right, pretends to have any further such right which he does not have; or

(c) takes or uses any name, title, addition or description implying that he has any such right or, as the case may be, any further such right,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(8) For the purposes of section 25, section 26 and this section—

“right of audience” includes, in relation to any court, any such right exercisable by an advocate; and

“right to conduct litigation” means the right to exercise on behalf of a client all or any of the functions, other than any right of audience, which may be exercised by a solicitor in relation to litigation.

Surrender of rights to conduct litigation and rights of audience

28

(1) Subject to the provisions of this section, where an application made under section 25 of this Act has been granted under section 26(6) of this Act, the body concerned may apply to the Lord President and the Secretary of State for permission to surrender any entitlement of their members to acquire rights to conduct litigation or rights of audience.

(2) The Lord President and the Secretary of State shall jointly issue directions as to the requirements with which any body wishing to surrender their members’ entitlement will have to comply, and, without prejudice to the generality of the foregoing, any such directions may include provision—

(a) where members of a body have acquired rights to conduct litigation or rights of audience, as to the arrangements to be made for the completion of any work outstanding at the time the application is made; and

(b) relating to the particular circumstances of a particular body.

(3) An application under subsection (1) above shall describe the manner in which the body have complied, or will comply, with the directions issued under subsection (2) above.

(4) Where the Lord President and the Secretary of State are satisfied that the body concerned have complied, or will comply, with the directions issued under subsection (2) above, the Lord President shall grant the application, and shall so inform the body.

(5) With effect from the date on which an application under subsection (1) above is granted, any member of the body concerned who has acquired rights to conduct litigation or rights of audience by virtue of the scheme shall cease to hold those rights.

Revocation of rights granted under section 26

29

(1) Where it appears to the Secretary of State that a body has failed to comply with a direction under section 42(6) of this Act, he may by order made by statutory instrument revoke the grant of the application made by that body under section 25 of this Act.

(2) No instrument shall be made under subsection (1) above unless a draft of the instrument has been laid before and approved by each House of Parliament.

(3) With effect from the date on which an order under subsection (1) above takes effect, any member of the body concerned who has acquired rights to conduct litigation or rights of audience by virtue of the scheme shall cease to hold those rights.

Regulation of right of English, Welsh and Northern Irish practitioners to practise in Scotland

30

(1) The Secretary of State, after consulting the Lord President, may by regulations prescribe circumstances in which, and conditions subject to which, practitioners who are qualified to practise in England and Wales or Northern Ireland may, in such capacity as may be prescribed, exercise in Scotland—

(a) prescribed rights of audience; or

(b) prescribed rights to conduct litigation,

without being entitled to do so apart from the regulations.

(2) The Secretary of State, after consulting the Lord President, may by regulations make provision for the purpose of enabling practitioners who are entitled to practise in England and Wales or Northern Ireland to become qualified to practise in Scotland on terms, and subject to conditions, corresponding or similar to those on which practitioners who are entitled to practise in member States may become qualified to practise in Scotland.

(3) Regulations made under subsection (1) above may, in particular—

(a) prescribe any right of audience which may not be exercised by a person in Scotland unless he is instructed to act together with a person who has that right of audience there;

(b) prescribe legal services which may not be provided by any person practising by virtue of the regulations;

(d) provide for the body by whom and the means by which the qualification of any person claiming to be entitled to practise by virtue of the regulations is to be verified; and

(e) provide for such professional or other body as may be prescribed to have power to investigate and deal with any complaint made against a person practising by virtue of the regulations.

(4) Regulations made under subsection (1) or (2) above may modify any rule of law or practice which the Secretary of State considers should be modified in order to give effect to the regulations.

(5) Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(6) In this section “practitioner” means, in relation to England and Wales and Northern Ireland—

(a) a barrister or solicitor; and

(b) any person falling within such category as may be prescribed in regulations made by the Secretary of State after consultation with the Lord President.

Rules of conduct

Rules of conduct etc

31

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Where it appears to the Faculty of Advocates that any rule of conduct in relation to the exercise of an advocate’s right of audience in the Court of Session is more restrictive than the equivalent rule in relation to the exercise of the equivalent right in the sheriff court, they may submit that rule to the Secretary of State for his approval, and the Secretary of State shall consult the CMA in accordance with section 40 of this Act, and thereafter, having—

(a) considered any advice tendered to him by the CMA;

(b) compared the rule applicable in the Court of Session with the equivalent rule applicable in the sheriff court; and

he may approve or refuse to approve the rule.

(3) In section 34 of the 1980 Act (rules as to professional practice, conduct and discipline)—

(a) at the end of subsection (1A) there shall be inserted—

and (f) make such additional or different provision as the Council think fit in relation to solicitors who, or incorporated practices which, are partners in or directors of multi-disciplinary practices.

; and

(b) after subsection (3) there shall be inserted—

(3A) Without prejudice to subsection (3), any rule made, whether before or after the coming into force of this subsection, by the Council under this section or section 35 which has the effect of prohibiting the formation of multi-disciplinary practices shall not have effect unless the Secretary of State, after consulting the Director in accordance with section 64A, has approved it.

Multi-national practices

32

Before section 61 of the 1980 Act there shall be inserted the following section—

(60A) (1) Subject to the provisions of this section, solicitors and incorporated practices may enter into multi-national practices with registered foreign lawyers. (2) The Council shall maintain a register of foreign lawyers, and may make rules with regard to registration; and, without prejudice to the generality of the foregoing, such rules may include provision as to— (a) the manner in which applications for registration are to be made; (b) the fees payable in respect of such applications; (c) conditions which may be imposed in respect of registration; and (d) the period for which any such registration is to run. (3) Section 34(2) and (3) apply to rules made under subsection (2) as they apply to rules made under that section. (4) Any foreign lawyer may apply to the Council to be registered as such for the purposes of this section and the Council shall, if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for him to be allowed to enter into a multi-national practice with solicitors or incorporated practices, enter his name on the register. (5) Subject to subsection (6), the Secretary of State may by order made by statutory instrument provide that any enactment or instrument— (a) passed or made before the commencement of this section; (b) having effect in relation to solicitors; and (c) specified in the order, shall have effect with respect to registered foreign lawyers as it has effect with respect to solicitors. (6) Before making any order under subsection (5), the Secretary of State shall consult the Council. (7) An order under subsection (5) may provide for an enactment or instrument to have effect with respect to registered foreign lawyers subject to such additions, omissions or other modifications as the Secretary of State specifies in the order. (8) No order shall be made under subsection (5) unless a draft of the order has been approved by both Houses of Parliament.

Complaints in relation to legal services

33

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Scottish legal services ombudsman

34

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Judicial appointments

35

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Paragraph 4 of Schedule 4 shall have effect in relation to the appointment of—

(a) members of the Inner House of the Court of Session; and

(b) a Lord Ordinary of that Court to be the Lord Ordinary in exchequer causes.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Solicitors’ and counsel’s fees

Solicitors' and counsel’s fees

36

(1) An advocate and the person instructing him may agree, in relation to a litigation undertaken on a speculative basis, that, in the event of the litigation being successful, the advocate’s fee shall be increased by such percentage as may, subject to subsection (2) below, be agreed.

(2) The percentage increase which may be agreed under subsection (1) above shall not exceed such limit as the court may, after consultation with the Dean of the Faculty of Advocates, prescribe by act of sederunt.

(3) After section 61 of the 1980 Act there shall be inserted the following section—

(61A) (1) Subject to the provisions of this section, and without prejudice to— (a) section 32(1)(i) of the Sheriff Courts (Scotland) Act 1971; or (b) section 5(h) of the Court of Session Act 1988, where a solicitor and his client have reached an agreement in writing as to the solicitor’s fees in respect of any work done or to be done by him for his client it shall not be competent, in any litigation arising out of any dispute as to the amount due to be paid under any such agreement, for the court to remit the solicitor’s account for taxation. (2) Subsection (1) is without prejudice to the court’s power to remit a solicitor’s account for taxation in a case where there has been no written agreement as to the fees to be charged. (3) A solicitor and his client may agree, in relation to a litigation undertaken on a speculative basis, that, in the event of the litigation being successful, the solicitor’s fee shall be increased by such a percentage as may, subject to subsection (4), be agreed. (4) The percentage increase which may be agreed under subsection (3) shall not exceed such limit as the court may, after consultation with the Council, prescribe by act of sederunt.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous and supplementary

Admission of solicitors and notaries public

37

(1) For subsection (2) of section 6 of the 1980 Act (admission of persons as solicitors) there shall be substituted the following subsection—

(2) Where— (a) a person has complied with the requirements of subsection (1); but (b) the Council have not lodged a petition for his admission as a solicitor within one month of his having so complied, he may apply by petition to the court for admission as a solicitor; and if he produces the certificate mentioned in paragraph (b) of subsection (1) the court shall make an order admitting him as a solicitor.

(2) Section 57 of that Act (admission of notaries public) shall be amended as follows—

(a) for subsection (1) there shall be substituted—

(1) The offices and functions of— (a) the clerk to the admission of notaries public; and (b) the keeper of the register of notaries public, are hereby transferred to the Council.

;

(b) in subsection (2), for the words from “grant” to the end there shall be substituted “ direct the Council to register him in the register of notaries public.” ”;

(2A) A petition by the Council under section 6(3A) for the admission of a person as a solicitor may, if the person so requests, include an application for the person’s admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public. (2B) A petition by a person under section 6(2)for his admission as a solicitor may include an application for his admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.

;

(d) in subsection (4) for the word “solicitor” there shall be substituted “ person” ”; and

(e) for subsection (5) there shall be substituted—

(5) The Council may charge such reasonable fees as they consider appropriate in respect of the admission of any person as a notary public.

(3) In section 58 of that Act (removal from and restoration to the register of names of notaries public)—

(a) in subsection (1), for the words from “give” to the end there shall be substituted “ strike off or, as the case may be, remove his name from the register of notaries public” ”;

(b) in subsection (2), for the words from “it” to “thereupon” there shall be substituted “ the Council shall forthwith” ”;

(3) Where a person who is both a solicitor and a notary public is suspended from practising as a solicitor under this Act the Council shall forthwith remove the person’s name from the register of notaries public. (4) If the suspension of such a person as is mentioned in subsection (3) is terminated or otherwise comes to an end the Council shall restore the person’s name to the register.

Availability of legal aid in relation to services provided under this Act

38

After section 43 of the Legal Aid (Scotland) Act 1986 there shall be inserted the following section—

(43A) (1) Advice and assistance shall be available, in accordance with the provisions of this Act, in relation to the provision of executry services by executry practitioners and recognised financial institutions and conveyancing services by independent qualified conveyancers, all within the meaning of section 23 (interpretation of sections 16 to 22) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 as they are so available in relation to the provision of the like services by solicitors. (2) Subject to any act of sederunt or act of adjournal made under subsection (7) of section 26 of that Act (consideration of applications made under section 25) advice and assistance, civil legal aid and criminal legal aid shall be available, in accordance with the provisions of this Act, in relation to the provision of services by persons who have acquired rights to conduct litigation or, as the case may be, rights of audience by virtue of that section as they are so available in relation to the provision of the like services by solicitors and, where appropriate, by advocates. (3) Where advice and assistance, civil legal aid or criminal legal aid has been made available by virtue of this section, the provisions of this Act shall apply in relation to the person providing those services as they apply in relation to a solicitor or advocate providing like services.

Removal of certain restrictions on the borrowing of the court process

39

Section 29 of the 1980 Act (which restricts the borrowing of the process relating to any court proceedings to solicitors having a place of business, in relation to the Court of Session, in Edinburgh, and, in relation to the inferior courts, within the jurisdiction of the court concerned) shall cease to have effect.

Advisory and supervisory functions of the Director

40

(1) Before—

(a) approving any rules made under section 17(11) or 18(10) of this Act; or

(b) approving any rules—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) such as are mentioned in section 31(1) or (2),

of this Act; or

(i) any provisions of a draft regulatory scheme under section 27 of the Regulation of Legal Services (Scotland) Act 2025, or

(ii) any provision which is proposed as a revision to a regulatory scheme under section 33 of that Act,

the Secretary of State shall first send a copy of the proposed regulations, rules or provisions to the CMA

(2) The CMA shall consider whether any such ... rules or provisions as are mentioned in subsection (1) above would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.

(3) When the CMA has completed its consideration it shall give such advice to the Secretary of State as it thinks fit.

(4) The CMA may publish any advice given under subsection (3) above.

(5) The CMA shall, so far as practicable, exclude from anything published under subsection (4) above any matter—

(a) which relates to the affairs of a particular person; and

(b) the publication of which would, or might in the CMA's opinion, seriously and prejudicially affect the interests of that person.

(6) For the purposes of the law of defamation, the publication of any advice by the Director under this section shall be absolutely privileged.

Investigatory powers of the Director

41

(1) For the purpose of investigating any matter under section 40 of this Act, the CMA may by notice in writing—

(a) require any person to produce to the CMA or to any person appointed by the CMA for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—

(i) are in that person’s custody or under that person’s control; and

(ii) relate to any matter relevant to the investigation; or

(b) require any person carrying on any business to furnish to the CMA (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.

(2) A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Review of rules approved by the Secretary of State

42

(1) Where the Secretary of State has approved—

(a) a rule under section ... 31(2) of this Act; or

(b) a draft scheme under section 26(6) of this Act,

he may and, where the Lord President, in the case of a draft scheme such as is mentioned in paragraph (b), so requests shall, require the body which made the rule or, as the case may be, the scheme to review its terms.

(2) When they have reviewed a rule or, as the case may be, a scheme, following a requirement made under subsection (1) above, the body concerned may revise the rule or scheme in the light of that review, and shall then submit the rule or scheme as revised or, if they have not revised it, as previously approved—

(a) in the case of a rule such as is mentioned in subsection (1)(a) above, to the Secretary of State; or

(b) in the case of a draft scheme such as is mentioned in subsection (1)(b) above, to the Secretary of State and the Lord President.

(3) Where a rule, whether revised or as previously approved, is submitted to the Secretary of State under subsection (2)(a) above, he may—

(a) approve the rule as submitted to him; or

(b) amend the rule in such manner as he considers appropriate,

and (except where the rule remains in the form previously approved) he may direct the body concerned to bring it into operation as soon as is practicable.

(4) Where the Lord President and the Secretary of State are agreed that the terms of a draft scheme submitted to them under subsection (2)(b) above are satisfactory, the Secretary of State may—

(a) approve the scheme; and

(b) (except where the scheme remains in the form previously approved) direct the body concerned to bring the scheme, as so amended, into force as soon as is practicable.

(5) Where either the Secretary of State or the Lord President is of the view that the terms of any such scheme so submitted to them are not satisfactory, but they do not agree as to what the terms of the scheme should be, the scheme shall continue to have effect as previously approved.

(6) Where the Secretary of State and the Lord President agree both that the terms of a scheme so submitted to them are not satisfactory, and as to what the terms of the scheme should be, the Secretary of State may amend the scheme in such manner as he and the Lord President consider appropriate; and may direct the body concerned to bring the scheme, as so amended, into force as soon as is practicable.

(7) The provisions of section 40(1)(b) and (c) of this Act shall apply to rules and schemes submitted under subsection (2) of this section as they apply to rules submitted under sections 17(15) and 31(2) and schemes submitted under section 25(1) of this Act.

Functions of Director in relation to certain rules made under the 1980 Act

43

After section 64 of the 1980 Act there shall be inserted the following sections—

(64A) (1) Before considering any rule— (a) made under section 25A(4) or (5); or (b) such as is mentioned in section 34(3A), the Secretary of State shall send a copy of the proposed rule in question to the Director. (2) The Director shall consider whether the rule in question would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent. (3) When the Director has completed his consideration he shall give such advice to the Secretary of State as he thinks fit. (4) The Director may publish any advice given by him under subsection (3). (5) The Director shall, so far as practicable, exclude from anything published under subsection (4) any matter— (a) which relates to the affairs of a particular person; and (b) the publication of which would, or might in the Director’s opinion, seriously and prejudicially affect the interests of that person. (6) For the purposes of the law of defamation, the publication of any advice or report by the Director under this section shall be absolutely privileged. (64B) When he has received advice under section 64A(3) in relation to a rule made under section 25A(4) or (5) or such as is mentioned in section 34(3A), the Secretary of State may, having considered— (a) that advice; (b) whether the interests of justice require that there should be such a rule; and (c) in relation to a rule made under section 25A(5), any relevant practice obtaining in the sheriff court, approve or refuse to approve the rule. (64C) (1) For the purpose of investigating any matter under section 64A, the Director may by notice in writing— (a) require any person to produce to him or to any person appointed by him for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which— (i) are in that person’s custody or under that person’s control; and (ii) relate to any matter relevant to the investigation; or (b) require any person carrying on any business to furnish to him (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice. (2) A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings. (3) Subsections (5) to (8) of section 85 of the Fair Trading Act 1973 shall apply in relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section. (64D) (1) Without prejudice to the power of the Council to review any rule made by them, where the Secretary of State has approved a rule under section 64B he may, and if so requested by the Lord President shall, require the Council to review its terms. (2) When they have reviewed a rule following a requirement made under subsection (1), the Council may revise the rule in the light of that review, and shall then submit the rule as revised or, if they have not revised it, as previously approved to the Lord President and the Secretary of State. (3) Where the Lord President and the Secretary of State are agreed that the terms of the rule as submitted to them are satisfactory, the Secretary of State shall approve the rule, and may direct the Council to bring it into force as soon as is practicable. (4) Where either the Secretary of State or the Lord President is of the view that any rule, as submitted to them, is not satisfactory, but they do not agree as to what the terms of the rule should be, the rule shall continue to have effect as previously approved. (5) Where the Secretary of State and the Lord President agree both that any rule submitted to them under subsection (2) is not satisfactory, and as to what the terms of the rule should be, the Secretary of State may direct the Council— (a) to amend the rule in such manner as he and the Lord President consider appropriate; and (b) to bring the rule, as so amended, into force as soon as is practicable. (6) The provisions of sections 64A and 64B apply to rules submitted to the Secretary of State under this section as they apply to rules submitted to him under sections 25A(9) or (10) and 34(3A).

Interpretation of Part II

44

In this Part of this Act, unless the context otherwise requires—

“advocate” means a member of the Faculty of Advocates practising as such;

“the CMA” means the Competition and Markets Authority;

“the Director” means the Director General of Fair Trading;

“Lord President” means the Lord President of the Court of Session;

“solicitor” has the same meaning as in section 65(1) of the 1980 Act; and

“the 1980 Act” means the Solicitors (Scotland) Act 1980.

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

Part III — The Licensing (Scotland) Act 1976

...

Permitted hours

...

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sunday opening of licensed premises

46

(1) The amendment by section 45 of this Act of section 53 of the principal Act shall not permit the opening for the sale or supply of alcoholic liquor during the permitted hours on a Sunday of premises for which there is in force a public house licence or a refreshment licence unless—

(a) the grant, provisional grant or renewal of such licence was in response to an application which stated that it was the intention of the applicant that the premises should be open for the sale or supply of alcoholic liquor during the permitted hours on a Sunday; or

(b) before such a licence has been renewed, the licensing board has granted an application for Sunday opening in respect of the premises in accordance with the provisions of Schedule 4 to the principal Act,

and, subject to subsection (8) below, the said Schedule 4 shall continue to have effect until all such licences in force at the commencement of this Act have been renewed or have ceased to have effect.

(2) In section 10 of the principal Act (applications for licences)—

(a) after subsection (3) there shall be added the following subsection—

(3A) In the case of an application for the grant, the provisional grant or the renewal of a public house licence or a refreshment licence, the application shall state whether the applicant intends the premises to be open for the sale or supply of alcoholic liquor during the permitted hours on a Sunday.

; and

(b) after subsection (7) there shall be added the following subsection—

(8) A notice as mentioned in subsection (2) above and notice under subsection (5) above shall include a statement as to whether the applicant intends the premises to be open for the sale or supply of alcoholic liquor during the permitted hours on a Sunday.

(3) In section 12 of that Act (publication of list of applications), at the end of subsection (2), there shall be added the following paragraph—

(f) in the case of an application for a public house licence or a refreshment licence, whether the applicant intends the premises to be open for the sale or supply of alcoholic liquor during the permitted hours on a Sunday.

(4) In section 17 of that Act (grounds for refusal of application)—

(a) after subsection (2) there shall be inserted the following subsection—

(2A) A licensing board shall refuse to grant or renew a public house or a refreshment licence in respect of the permitted hours on a Sunday if it finds that the opening and use on a Sunday of the premises to which the application relates would cause undue disturbance or public nuisance in the locality, but the refusal of an application on that ground alone shall not prevent the licensing board from granting the application in respect of days other than Sundays.

(b) in subsection (4), after the words “transfer the licence” there shall be inserted the words “ or to grant the licence in respect of the permitted hours on a Sunday ”.

(5) In section 59 (restaurants in public houses to have permitted hours on Sundays), for the words “an application for Sunday opening has not been granted under Schedule 4 to this Act” there shall be substituted the words “ there are no permitted hours on a Sunday ”.

(6) In section 60 (other extensions of permitted hours on Sundays), for the words “an application for Sunday opening has been granted under Schedule 4 to this Act” there shall be substituted the words “ there are permitted hours on Sundays in accordance with section 53 of this Act ”.

(7) In section 64 (extensions to permitted hours), for subsection (4) there shall be substituted the following subsections—

(4) A licensing board shall not grant an application from the holder of a public house licence for an occasional or regular extension of permitted hours on Sundays except— (a) as respects premises to which section 59 of this Act applies and for the purposes of that section; and (b) in the case of other premises, as respects any period or periods after half-past two in the afternoon, and the board shall refuse to grant such an application if it finds that the extension of permitted hours would cause undue disturbance or public nuisance in the locality. (4A) Nothing in subsection (4) above shall prevent the granting of an application for an occasional or regular extension of permitted hours on a Saturday for a period which continues into Sunday morning.

(8) In Schedule 4 to the principal Act (provision for Sunday opening of premises with a public house or refreshment licence)—

(a) in paragraph 1, the words “as mentioned in section 53(2) of this Act” shall cease to have effect;

(b) in paragraph 15, the words “or 12 above” shall cease to have effect;

(15A) If an application for renewal of a public house licence or a refreshment licence includes a statement that the applicant intends that the premises should be open for the sale or supply of alcoholic liquor during the permitted hours on a Sunday and if there is currently in force the grant of an application for Sunday opening, that grant shall continue to have effect— (a) until the renewal application is granted by the board; (b) if the renewal application is refused by the board, or refused in respect of Sunday opening, until the time within which an appeal may be made has elapsed, or if an appeal has been lodged, until the appeal has been abandoned or determined.

; and

(d) paragraphs 12 to 14, 16 and 17 shall cease to have effect.

(9) Expressions used in this section and in the principal Act shall have the same meaning as in that Act.

Regular extensions of permitted hours

47

(1) A licensing board shall not grant an application under section 64 of the principal Act for an extension of permitted hours unless it is satisfied by the applicant, taking account of the factors mentioned in subsection (3) of that section—

(a) that there is a need in the locality in which the premises in respect of which the application is made are situated for a regular extension of the permitted hours; and

(b) that such an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality.

(2) In determining whether to grant an application for a regular extension to permitted hours in respect of any premises it shall not be a relevant consideration for the licensing board to have regard to whether any application relating to any other premises in its area has, at any time, been granted or refused or the grounds on which any such application has been granted or refused.

(3) Expressions used in this section and in the principal Act shall have the same meaning as in that Act.

Restriction orders

48

(1) Section 65 of the principal Act (restriction on the permitted hours) shall be amended in accordance with the following provisions of this section.

(2) For subsection (1) there shall be substituted the following subsections—

(1) Where, on a complaint being made to a licensing board by any person mentioned in section 16(1) of this Act in respect of any licensed premises or registered club, the board is satisfied that— (a) the sale or supply of alcoholic liquor in the afternoon or in the evening in licensed premises or in a registered club is the cause of undue public nuisance or constitutes a threat to public order or safety; or (b) the use of licensed premises is the cause of undue disturbance or public nuisance having regard to the way of life in the locality on a Sunday, the board may make an order, in this section referred to as an “afternoon restriction order” or “evening restriction order” in the case of the grounds mentioned in paragraph (a) above or as a “Sunday restriction order” in the case of the grounds mentioned in paragraph (b) above; and, in this section, “restriction order” includes any such order. (1A) The effect of an afternoon restriction order is that the permitted hours between half-past two and five in the afternoon shall be reduced by such a time and for such a period as may be specified in the order. (1B) The effect of an evening restriction order is that the permitted hours in the evening shall be reduced by such a time and for such a period as may be specified in the order but no such order shall restrict the permitted hours before ten in the evening. (1C) The effect of a Sunday restriction order is that there shall be no permitted hours on Sunday for such period as may be specified in the order or that the permitted hours on Sunday shall be reduced by such a time and for such a period as may be so specified.

(3) At the end of subsection (3) there shall be inserted the words “ provided that no restriction order shall be made in respect of premises in respect of which no complaint has been made ”.

Children’s certificates

49

(1) The holder of a public house licence or an hotel licence in respect of any premises or an applicant for the grant, provisional grant or renewal of such a licence may apply to the licensing board, in accordance with this section, for the grant of a children’s certificate in respect of the premises or any part or parts of the premises specified in the application for the certificate.

(2) A licensing board may grant a certificate (in this section and section 50 of this Act referred to as a “children’s certificate”) in respect of any premises or, as the case may be, part or parts of any premises if it is satisfied—

(a) that the premises or, as the case may be, the part or parts of the premises constitute an environment in which it is suitable for children to be present; and

(b) that there will be available for sale or supply for consumption in the part of the premises in respect of which the certificate is to apply meals and beverages other than alcoholic liquor within the meaning of the principal Act.

(3) Where a children’s certificate is in force in respect of any part of any premises, notwithstanding section 69 of the principal Act, and, subject to the provisions of this section, it shall be lawful for a person under 14 years of age accompanied by a person of not less than 18 years of age to be present in such part at any time when the premises are open to the public between eleven in the morning and eight in the evening for the purpose of the consumption of a meal sold or supplied on the premises.

(4) When granting a children’s certificate, the licensing board may attach such conditions to the grant of the certificate, including conditions restricting the hours during which and days on which children may be present in any premises or part of premises to which the certificate relates, as appear to the board to be appropriate.

(5) There shall be displayed at all times in any premises or part of such premises to which a children’s certificate applies a notice of the fact that a children’s certificate has been granted in respect of such premises or part.

(6) Any person who is the holder of a licence in respect of any premises to which or part of which a children’s certificate applies or any employee or agent of such a person who contravenes this section or any condition attached to a children’s certificate shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) The following provisions of the principal Act shall apply as regards an offence under subsection (6) above—

(a) subsections (2) and (3) of section 67, as if an entry relating to that offence appeared respectively in columns 3 and 4 of Schedule 5 to that Act; and

(b) section 71.

(8) Schedule 5 to this Act shall have effect as regards the procedure to be followed for the purposes of an application for a children’s certificate.

(9) A children’s certificate shall be valid—

(a) where it is granted at the same time as the grant, provisional grant or renewal of a licence, for the period of the licence;

(b) where it is granted at any other time, until the end of the period for which the licence to which it relates has effect in pursuance of section 30 of the principal Act.

(10) Where a licence is transferred in pursuance of section 25 of the principal Act, any children’s certificate in respect of the premises or any part of the premises to which the licence relates shall be transferred to the new licence holder subject to the same conditions as were applied to the original grant of the certificate.

(11) Expressions used in this section and section 50 of this Act and in the principal Act shall have the same meaning as in the principal Act.

Suspension of children’s certificate

50

(1) Where a licensing board considers that the premises or part of the premises to which a children’s certificate relates no longer constitute an environment in which it is suitable for children to be present they shall decide whether or not to hold a hearing for the purpose of determining whether to suspend the certificate.

(2) Where the licensing board decides to hold a hearing as mentioned in subsection (1) above—

(a) the clerk of the board shall serve on the holder of the children’s certificate, not less than 21 days before the hearing, a notice that the board proposes to hold a hearing, specifying the grounds upon which suspension of the certificate may be made;

(b) the clerk of the board shall give notice of the hearing to the chief constable;

(c) the chief constable may, not less than 7 days before the hearing, lodge notice with the clerk of the board that he wishes to be heard in support of suspension of the children’s certificate specifying the grounds on which he seeks such suspension, and any such notice shall be intimated by the chief constable to the holder of the licence;

(d) the board shall not order suspension of a children’s certificate without hearing the holder thereof unless, after receiving due notice of the hearing, the holder fails to appear.

(3) The period of the suspension of a children’s certificate under this section shall be a fixed period not exceeding one year or the unexpired portion of the duration of the certificate, whichever is the less, and the effect of the suspension is that the certificate shall cease to have effect during the period of the suspension.

(4) Where

(a) a children’s certificate has been suspended under this section, or further suspended under this subsection; and

(b) it appears to the licensing board that the grounds upon which the suspension or further suspension was made continue to obtain,

the licensing board may, not more than one month before the expiry of the period of the suspension or, as the case may be, further suspension, determine that the suspension shall be continued for a further period of not more than one year, and this section shall have effect as regards any such further suspension as it has for the purposes of an initial suspension.

Transfer of licences

51

(1) In section 5 of the principal Act (arrangements for discharge of functions by licensing boards), at the end of subsection (2) there shall be added the following paragraph—

(m) confirming, under section 25(4) of this Act, the transfer of a licence transferred by virtue of subsections (2) or (3) of that section.

(2) In subsection (1) of section 25 of that Act (transfer of licences)—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) after “or” there shall be inserted the words “ to a new or existing ”.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For subsection (4) of that section there shall be substituted the following subsections—

(4) A licence transferred by virtue of subsection (2) or (3) above shall have effect until the next meeting of the licensing board, which, on an application for confirmation of the transfer of the licence, shall consider whether it is satisfied that the person to whom the licence has been transferred is a fit and proper person to be the holder of a licence and— (a) if it is so satisfied, it shall confirm the transfer of the licence; and; (b) if it is not so satisfied, it shall refuse to confirm the transfer. (4A) In considering the fitness of the person to whom the licence has been transferred, the licensing board may have regard to any misconduct on his part, whether or not constituting a breach of this Act or any byelaw made thereunder, which in its opinion has a bearing on his fitness to hold a licence. (4B) If the transfer of a licence has been confirmed under subsection (4) above, the licence shall have effect, in accordance with subsections (4) and (5) of section 30 of this Act, until the quarterly meeting of the licensing board three years after the meeting at which the licence was originally granted or renewed by a licensing board. (4C) If a licensing board refuses to confirm the transfer of a licence under subsection (4) above, the person to whom the licence had been transferred may appeal to the sheriff against that refusal and the licence shall have effect until the time within which an appeal may be made has elapsed or, if an appeal has been lodged, until the appeal has been abandoned or determined.

(5) In section 64 of that Act (occasional and regular extensions of permitted hours), after subsection (3) there shall be inserted the following subsection—

(3A) Where a licence has been transferred by virtue of section 25 of this Act and an application under subsection (1) above has been granted under subsection (2) or (3) above to the previous holder of the licence, the reference in subsections (2) and (3) above to the person whose application has been granted shall include a reference to the person to whom the licence has been transferred.

(6) For subsection (7) of that section there shall be substituted the following subsection—

(7) References in this Act to the permanent transfer of a licence shall be construed as references to the transfer of a licence by virtue of subsection (1B) above.

Wholesale selling of alcoholic liquor

52

(1) After section 90 of the principal Act there shall be inserted the following section—

(90A) (1) A wholesaler or his employee or agent who barters, sells, or exposes or offers for sale alcoholic liquor shall be guilty of an offence unless— (a) he does so from premises which are used exclusively for wholesale trading (whether solely of alcoholic liquor or not); or (b) he does so from licensed premises, a licensed canteen or a registered club during the hours in respect of which it is lawful to sell alcohol by retail from or in these premises, that canteen or that club. (2) A wholesaler or his employee or agent who sells alcoholic liquor to a person under 18 shall be guilty of an offence. (3) A wholesaler or his employee or agent who causes or permits a person under 18 to sell alcoholic liquor without that sale having been specifically approved by a person of or over 18 shall be guilty of an offence. (4) Section 67 of this Act (penalties for offences) shall apply in respect of offences under this section as if references in that section to a licence-holder were references to a wholesaler. (5) Section 71 of this Act (defence of due diligence) shall apply to any person charged with an offence under this section as if the reference in that section to a licence-holder were a reference to a wholesaler. (6) In this section— - “licence-holder” includes the holder of a licence under Part III of this Act; and - “wholesale” and “wholesaler”, insofar as they relate to the sale of alcoholic liquor, have the meaning given in section 4(1) of the Alcoholic Liquor Duties Act 1979 in relation to dealing in alcoholic liquor.

(2) In Schedule 5 to that Act, after the entry relating to section 90(c) there shall be inserted—

Section 90A(1)	Dealing wholesale other than from permitted premises	Yes		level 5 on the standard scale.
Section 90A(2)	Wholesaler selling liquor to person under 18	Yes		level 3 on the standard scale.
Section 90A(3)	Wholesaler permitting person under 18 to sell alcohol without approval	Yes		level 1 on the standard scale.

Observations by Chief Constable

Observations by chief constable in relation to applications

53

(1) After section 16 of the principal Act (objections in relation to applications), there shall be inserted the following section—

(16A) (1) Without prejudice to section 16 of this Act, in considering an application— (a) for the grant (including the provisional grant), renewal or permanent transfer of a licence; (b) the regular extension of permitted hours under section 64 of this Act; or (c) the grant of a children’s certificate under section 49 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, a licensing board shall have regard to any observations on the application submitted by the chief constable in accordance with the following provisions of this section. (2) Where the chief constable intends to submit observations in relation to any application, he shall, not later than seven days before the meeting of the licensing board at which the application is to be considered— (a) lodge with the clerk of the board a written notice of his observations; and (b) intimate his observations to the applicant in the manner provided by subsection (3) below, and observations shall not be entertained by the licensing board unless it is proved or admitted that such observations were intimated to the applicant as aforesaid. (3) Observations shall, for the purposes of paragraph (b) of subsection (2) above, be intimated to the applicant— (a) by delivering to him a copy of the observations lodged with the licensing board under paragraph (a) of that subsection; or (b) by sending him a copy of the said observations by registered post or by recorded delivery in a letter addressed to him at his proper address; or (c) by leaving a copy of the said observations for him at his proper address; and, for the purposes of paragraphs (b) and (c) of this subsection, the proper address of an applicant shall be as provided for in subsection (3) of section 16 of this Act. (4) Notwithstanding anything in the foregoing provisions of this section, it shall be competent for the licensing board to entertain observations from the chief constable, lodged at any time before the hearing of an application, if the board is satisfied that there is sufficient reason why due notice and intimation of the observations could not be given, and in such a case the chief constable shall cause his observations to be intimated to the applicant before the hearing. (5) The licensing board shall have regard to any observations submitted by the chief constable in accordance with this section whether or not they are relevant to one or more grounds on which, by virtue of section 17 of this Act, an application may be refused.

(2) In section 31 of that Act (suspension of licences), after subsection (5) there shall be inserted the following subsection—

(5A) Where the licensing board decides to hold a hearing as mentioned in subsection (4) above in respect of a complaint under this section which was made by a person or body other than the chief constable, the chief constable may, not less than 7 days before the hearing, lodge with the clerk of the board observations in respect of the proposed suspension of the licence, and any such observations shall be intimated by the chief constable to the holder of the licence.

Supervision of sales by persons over 18

Supervision of sales of liquor in off-sale premises by persons 18 or over

54

(1) After section 97 of the principal Act there shall be inserted the following section—

(97A) A holder of a licence in respect of— (a) any off-sale premises; or (b) the off-sale part of any other premises, or any employee or agent of his, who causes or permits a person under 18 to sell on these premises alcoholic liquor without that sale having been specifically approved by the licence holder or by a person of or over 18 acting on his behalf shall be guilty of an offence.

(2) In section 71 of that Act (defence of due diligence), for the words “or 70” there shall be substituted the words “ , 70 or 97A ”.

(3) In Schedule 5 to that Act, after the entry relating to section 97(4) there shall be inserted—

Section 97A	Permitting person under 18 to sell alcohol without approval	Yes	Yes	level 3 on the standard scale.

Presumption as to contents of containers

55

(1) In section 127 of the principal Act (presumptions as to the contents of containers) for subsections (2) to (6) there shall be substituted the following subsections—

(2) Any liquid found in a container (sealed or open) shall, subject to the provisions of this section, be presumed to conform to the description of the liquid on the container. (3) An open container which is found to contain— (a) no liquid; or (b) insufficient liquid to permit analysis, but which when sold or supplied to a person was sealed shall, subject to the provisions of this section, be presumed to have contained at the time of the sale or supply liquid which conformed to the description of the liquid on the container. (4) Subject to subsection (5) below, in any trial of a person for an offence under this Act, he may rebut the presumption mentioned in subsection (2) or (3) above by showing that, at the time of the sale or supply, the liquid in the container did not conform to the description of the liquid on the container. (5) A person shall not be entitled to lead evidence for the purpose of rebutting a presumption as mentioned in subsection (4) above unless, not less than 7 days before the date of the trial, he has given notice to the prosecutor of his intention to do so.

(2) Nothing in this section shall apply to the prosecution of any person for an offence committed before the commencement of this section.

Part IV — Miscellaneous Reforms

Evidence by children in criminal trials

Evidence of children through television link in criminal proceedings

56

Transfer of cases in which child’s evidence is to be given through television link

57

Identification of accused by child

58

Where a court has, or is deemed to have, granted an application made under section 56 of this Act in relation to a child . . ., and the child gives evidence that he recalls having identified, prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the child prior to the trial shall be admissible as evidence as to such identification.

Interpretation of sections 56, 57 and 58

59

In sections 56, 57 and 58 of this Act, unless the contrary intention appears—

“child” means a person under the age of 16 years;

“court” means the High Court of Justiciary or the sheriff court; and

“trial” means a trial under solemn or under summary procedure.

Sheriff court jurisdiction

Criminal jurisdiction of sheriff court

60

The following subsection shall be inserted at the end of each of sections 3 and 288 of the Criminal Procedure (Scotland) Act 1975 to form subsection (4) and subsection (5) respectively of these sections—

(0) Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.

Treatment of offenders

Probation and community service orders and supervision and care of persons on probation or released from prison etc

61

(1) Sections 183 and 384 of the Criminal Procedure (Scotland) Act 1975 (probation) shall be amended as follows—

(a) at the beginning of subsection (1) of each section there shall be inserted “ Subject to subsection (1A) below, ”;

(b) after subsection (1) of each section there shall be inserted the following subsection—

(1A) A court shall not make a probation order under subsection (1) above unless it is satisfied that suitable arrangements for the supervision of the offender can be made by the local authority in whose area he resides or is to reside.

; and

(i) for the words “necessary for” there shall be substituted “ conducive to ”; and

(ii) for the word “for” in the second place where it occurs there shall be substituted “ to ”.

(2) In subsection (1) of each of sections 186 and 387 of that Act (failure to comply with probation order)—

(a) after the word “from” there shall be inserted “ (a) ”; and

(b) after the word “probationer” where it first occurs there shall be inserted—

(b) the director of social work of the local authority whose officer is supervising the probationer; or (c) an officer appointed by the director of social work to act on his behalf for the purposes of this subsection,

(3) In section 1(1) of the Community Service by Offenders (Scotland) Act 1978 (community service orders), for the words “dealing with him in any other way” there shall be substituted “ imposing on him a sentence of, or including, imprisonment or any other form of detention ”.

(4) In section 27 of the Social Work (Scotland) Act 1968 (supervision and care of persons on probation or released from prison etc)—

(a) at the end of subsection (1) there shall be added—

; and (c) the provision of advice, guidance and assistance for persons in their area who, within 12 months of their release from prison or any other form of detention, request such advice, guidance or assistance.

; and

(b) after paragraph (a) of subsection (3) there shall be inserted the following paragraph—

(aa) the matters to be included in such a report;

(5) In section 27A of that Act (grants in respect of community service facilities)—

(a) at the beginning there shall be inserted “ (1) ”; and

(b) for the words from “for the purposes” to the end there shall be substituted—

(a) for the purposes mentioned in section 27(1) of this Act; and (b) for such other similar purposes as the Secretary of State may prescribe. (2) Before exercising his power under subsection (1)(b) above the Secretary of State shall consult local authorities and such other bodies as he considers appropriate.

(6) In section 27B of that Act (grants in respect of hostel accommodation for certain persons)—

(a) at the beginning there shall be inserted “ (1) ”; and

(b) for the words from “sub-paragraphs (i) and (ii)” to the end there shall be substituted—

subsection (2) below. (2) The persons referred to in subsection (1) above are— (a) persons mentioned in section 27(1)(b)(i) and (ii) of this Act; (b) persons who have been charged with an offence and are on bail; (c) persons who have been released from prison or any other form of detention but do not fall within section 27(1)(b)(ii) of this Act; and (d) such other classes of persons as the Secretary of State may prescribe. (3) Before exercising his power under subsection (2)(d) above the Secretary of State shall consult local authorities and such other persons as he considers appropriate.

(7) In section 94(1) of that Act (interpretation), in paragraph (c) of the definition of “prescribed”, after the word “sections” there shall be inserted “ 27A, 27B, ”.

Supervised attendance orders as alternative to imprisonment on fine default

62

Drug trafficking confiscation orders

Registration and enforcement of external confiscation orders

63

The following sections shall be substituted for section 30 of the Criminal Justice (Scotland) Act 1987—

(30) (1) Her Majesty may by Order in Council— (a) direct in relation to a country or territory outside the United Kingdom designated by the order (“a designated country”) that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there; (b) make— (i) such provision in connection with the taking of action in the designated country with a view to satisfying a confiscation order; and (ii) such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act; and (iii) such incidental, consequential and transitional provision, as appears to Her Majesty to be expedient; and (c) without prejudice to the generality of this subsection, direct that in such circumstances as may be specified proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified. (2) In this Part of this Act— - “external confiscation order” means an order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value; and - “modifications” includes additions, alterations and omissions. (3) An Order in Council under this section may make different provision for different cases or classes of case. (4) The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion. (5) An Order in Council under this section shall not be made unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament. (30A) (1) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if— (a) it is satisfied that at the time of registration the order is in force and not subject to appeal; (b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and (c) it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice. (2) In subsection (1) above “appeal” includes— (a) any proceedings by way of discharging or setting aside a judgment; and (b) an application for a new trial or a stay of execution. (3) The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.

Matrimonial interdicts

64

In section 15 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (powers of arrest attached to matrimonial interdicts)—

(a) in subsection (2), after the words “such interdict” there shall be inserted “ together with the attached power of arrest ”; and

(b) in subsection (4)—

(i) after the word “interdict” in the second place where it occurs there shall be inserted “ together with the attached power of arrest ”; and

(ii) at the end there shall be added “ and, where the application to attach the power of arrest to the interdict was made after the interdict was granted, a copy of that application and of the interlocutor granting it and a certificate of service of the interdict together with the attached power of arrest ”.

Homelessness

65

(1) Section 24 of the Housing (Scotland) Act 1987 (definition of homelessness and persons threatened with homelessness) shall be amended as follows.

(2) After subsection (2) there shall be inserted the following subsections—

(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. (2B) Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the local authority to whom he has applied for accommodation or for assistance in obtaining accommodation.

(3) In subsection (3), after paragraph (b) there shall be inserted—

(bb) it is probable that occupation of it will lead to— (i) violence; or (ii) threats of violence which are likely to be carried out, from some other person who previously resided with that person, whether in that accommodation or elsewhere, or

Arbitration

UNCITRAL Model Law on International Commercial Arbitration

66

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Judicial factors

Further provision as to discharge of judicial factors

67

After section 34 (discharge of factors, tutors and curators) of the Judicial Factors Act 1849 there shall be inserted the following section—

(34A) The Court may by act of sederunt make provision for the discharge of factors, tutors and curators by means other than the presentation of a petition under section 34 of this Act where the factory, tutory or curatory is terminated by reason of the recovery, death or coming of age of the ward, or by reason of the exhaustion of the estate.

Avoidance of civil liability by non-contractual notice

Amendment of Unfair Contract Terms Act 1977

68

(1) The Unfair Contract Terms Act 1977 shall be amended in accordance with this section.

(2) In section 15(1) (scope of Part II), the words “applies only to contracts,” shall cease to have effect.

(3) In section 16 (liability for breach of duty)—

(a) in subsection (1)—

(i) at the beginning there shall be inserted the words “ Subject to subsection (1A) below, ”;

(ii) after the word “contract” in the first place where it occurs there shall be inserted “ , or a provision of a notice given to persons generally or to particular persons, ”;

(iii) after the word “term” in the second place where it occurs there shall be inserted “ or provision ”; and

(iv) at the end of paragraph (b) there shall be inserted the words “ or, as the case may be, if it is not fair and reasonable to allow reliance on the provision ”;

(b) after subsection (1) there shall be inserted the following subsection—

(1A) Nothing in paragraph (b) of subsection (1) above shall be taken as implying that a provision of a notice has effect in circumstances where, apart from that paragraph, it would not have effect.

; and

(i) after the word “contract” there shall be inserted “ or a provision of a notice ”; and

(ii) after the word “term” in the second place where it occurs there shall be inserted “ or provision ”.

(4) In section 24 (the “reasonableness” test)—

(a) after subsection (2) there shall be inserted the following subsection—

(2A) In determining for the purposes of this Part of this Act whether it is fair and reasonable to allow reliance on a provision of a notice (not being a notice having contractual effect), regard shall be had to all the circumstances obtaining when the liability arose or (but for the provision) would have arisen.

;

(b) in subsection (3)—

(i) after the word “contract” in the first place where it occurs there shall be inserted “ or a provision of a notice ”;

(ii) after the word “contract” in the second place where it occurs there shall be inserted “ or whether it is fair and reasonable to allow reliance on the provision ”;

(iii) after the word “above” there shall be inserted “ in the case of a term in a contract ”; and

(iv) in paragraph (a), after the word “term” there shall be inserted “ or provision ”; and

(c) in subsection (4), after the word “contract” there shall be inserted “ or that it is fair and reasonable to allow reliance on a provision of a notice ”.

(5) In section 25 (interpretation of Part II)—

(a) in subsection (1), after the definition of “hire-purchase agreement” there shall be inserted—

(b) subsections (3)(d) and (4) shall cease to have effect.

(6) This section shall have effect only in relation to liability for any loss or damage which is suffered on or after the date appointed for its coming into force.

Liability in respect of services to injured persons

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