Legal Profession and Legal Aid (Scotland) Act 2007

• “inadequate professional services”—means, as respects a practitioner who is—an advocate, professional services which are in any respect not of the quality which could reasonably be expected of a competent advocate;a conveyancing practitioner or an executry practitioner, professional services which are in any respect not of the quality which could reasonably be expected of a competent conveyancing practitioner or, as the case may be, a competent executry practitioner;a firm of solicitors or an incorporated practice, professional services which are in any respect not of the quality which could reasonably be expected of a competent firm of solicitors or, as the case may be, a competent incorporated practice;a person exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act, professional services which are in any respect not of the quality which could reasonably be expected of a competent person exercising such a right;a solicitor, professional services which are in any respect not of the quality which could reasonably be expected of a competent solicitor;a registered European or foreign lawyer, professional services that are in any respect not of the quality which could reasonably be expected of a competent lawyer of that type;includes any element of negligence in respect of or in connection with the services,and cognate expressions are to be construed accordingly;

• “incorporated practice” has the meaning given by section 34(1A)(c) of the 1980 Act;

• “practising certificate” has the meaning given by section 4 of the 1980 Act;

• “practitioner” means—an advocate and includes any advocate whether or not a member of the Faculty of Advocates at the time when it is suggested the conduct complained of occurred or the services complained of were provided and notwithstanding that subsequent to that time the advocate has ceased to be such a member;a conveyancing practitioner and includes any such practitioner, whether or not registered at that time and notwithstanding that subsequent to that time the practitioner has ceased to be so registered;an executry practitioner and includes any such practitioner, whether or not registered at that time and notwithstanding that subsequent to that time the practitioner has ceased to be so registered;a firm of solicitors, whether or not since that time there has been any change in the firm by the addition of a new partner or the death or resignation of an existing partner or the firm has ceased to practise;an incorporated practice, whether or not since that time there has been any change in the persons exercising the management and control of the practice or the practice has ceased to be recognised by virtue of section 34(1A) of the 1980 Act or has been wound up;a person exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act and includes any such person, whether or not the person had acquired the right at that time and notwithstanding that subsequent to that time the person no longer has the right;a solicitor, whether or not the solicitor had a practising certificate in force at that time and notwithstanding that subsequent to that time the name of the solicitor has been removed from or struck off the roll or the solicitor has ceased to practise or has been suspended from practice;a registered European or foreign lawyer, whether or not registered at that time and notwithstanding that subsequent to that time the lawyer's registration has ceased to have effect or the lawyer has stopped practising;

• “ registered European or foreign lawyer ” is to be construed in accordance with section 65(1) of the 1980 Act;

• “relevant professional organisation” means, in relation to a complaint as respects a practitioner who is—an advocate, the Faculty of Advocates;a conveyancing practitioner, an executry practitioner, a firm of solicitors or an incorporated practice, the Council;a person exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act, the body which made a successful application under section 25 of that Act and of which the person is a member;a solicitor, the Council;a registered European or foreign lawyer, the Council;

• “the roll” means the roll of solicitors kept by the Council by virtue of section 7(1) of the 1980 Act;

• “services complaint” has the meaning given by section 2(1)(b);

• “the Society” means the Law Society of Scotland;

• “solicitor” means any person enrolled or deemed to have been enrolled as a solicitor in pursuance of the 1980 Act;

• “unsatisfactory professional conduct” means, as respects a practitioner who is—an advocate, professional conduct which is not of the standard which could reasonably be expected of a competent and reputable advocate;a conveyancing practitioner or an executry practitioner, professional conduct which is not of the standard which could reasonably be expected of a competent and reputable conveyancing practitioner or, as the case may be, a competent and reputable executry practitioner;a person exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act, professional conduct which is not of the standard which could reasonably be expected of a competent and reputable person exercising such a right;a solicitor, professional conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor,a registered European or foreign lawyer, conduct that is not of the standard which could reasonably be expected of a competent and reputable lawyer of that type;but which does not amount to professional misconduct and which does not comprise merely inadequate professional services; and cognate expressions are to be construed accordingly.

• (2) For the avoidance of doubt, anything done by any Crown Counsel or procurator fiscal in relation to the prosecution of crime or investigation of deaths is not done in relation to any matter in which the Crown Counsel or procurator fiscal has been instructed by a client.

• (3) For the avoidance of doubt, the exercise of discretion by any Crown Counsel or procurator fiscal in relation to the prosecution of crime or investigation of deaths is not in itself capable of constituting professional misconduct or unsatisfactory professional conduct.

• (4) In subsections (2) and (3), “procurator fiscal” has the same meaning as in section 307 of the Criminal Procedure (Scotland) Act 1995 (c. 46).

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

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

47

• (1) Where a conduct complaint is remitted to a relevant professional organisation under section 6(2)(a) or 15(5)(a), the organisation must, subject to section 15(1) and (6), investigate it.

• (2) After investigating a conduct complaint, the relevant professional organisation must make a written report to the complainer and the practitioner of—

• (a) the facts of the matter as found by the organisation;

• (b) what action the organisation proposes to take, or has taken, in the matter.

• (3) Each relevant professional organisation must ensure that its procedures for dealing with conduct complaints do not conflict with the duty imposed on it by section 24(4) or (5) in relation to any report sent to it under that section or any direction by the Commission under section 24(6).

• (4) In this section and sections 48 to 52, words and expressions have the same meanings as in section 46.

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

48

• (1) Where a relevant professional organisation is satisfied that it is necessary for it to do so for the purposes of an investigation by it into a conduct complaint under section 47 or a review by it of a decision in relation to a conduct complaint, it may—

• (a) give notice in writing in accordance with subsection (2) to the practitioner, the practitioner's firm or, as the case may be, the employing practitioner;

• (b) give notice in writing in accordance with subsection (4) to the complainer.

• (2) Notice under subsection (1)(a) may require—

• (a) the production or delivery to any person appointed by the relevant professional organisation, at a time and place specified in the notice, of all documents mentioned in subsection (3) which are in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner and which relate to the matters to which the complaint relates (whether or not they relate also to other matters);

• (b) an explanation, within such period being not less than 21 days as the notice specifies, from the practitioner, the firm or, as the case may be, the employing practitioner regarding the matters to which the complaint relates.

• (3) The documents are—

• (a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner;

• (b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which the practitioner is the sole trustee or a co-trustee only with one or more of the practitioner's partners or employees or, as the case may be, where the practitioner is an incorporated practice of which the practice or one of its employees is a sole trustee or it is a co-trustee only with one or more of its employees.

• (4) Notice under subsection (1)(b) may require—

• (a) the production or delivery to any person appointed by the relevant professional organisation at a time and place specified in the notice, of all documents mentioned in subsection (5) which relate to the matters to which the complaint relates (whether or not they relate to other matters);

• (b) an explanation, within such period being not less than 21 days as the notice specifies, from the complainer regarding the matters to which the complaint relates.

• (5) The documents are all books, accounts, deeds, securities, papers and other documents in the possession or control of the complainer.

• (6) Schedule 4 makes further provision about the powers of a relevant professional organisation under this section.

Conduct complaints: financial impropriety

49

• (1) If, in the course of an investigation into a conduct complaint under section 47, a relevant professional organisation has reasonable cause to believe that the practitioner, the practitioner's firm (or any employee thereof) or, as the case may be, the employing practitioner, has been guilty of any financial impropriety it may apply to the court for an order under subsection (2).

• (2) An order under this subsection is that no payment be made by any banker, building society or other body named in the order out of—

• (a) any banking account in the name of such practitioner or firm; or

• (b) any sum deposited in the name of such practitioner or firm,

without the leave of the court.

Power of relevant professional organisations to recover certain expenses

50

• (1) A relevant professional organisation is, subject to subsection (2), entitled to recover from a practitioner, the practitioner's firm or, as the case may be, the employing practitioner, in respect of whom it has taken any action by virtue of section 48(1)(a) or 49, any expenditure reasonably incurred by it in so doing.

• (2) Expenditure incurred in taking action by virtue of section 48(1)(a) is recoverable under subsection (1) only where notice has been served under paragraph 2(a) of schedule 4 in connection with that action and—

• (a) no application has been made in consequence under paragraph 3 of that schedule; or

• (b) the court, on such an application, has made a direction under paragraph 4 of that schedule.

Powers in relation to documents and information from third parties

51

• (1) Where a relevant professional organisation has requested that documents or information in the possession or control of a person be produced for the purposes of an investigation by it into a conduct complaint under section 47 or a review by it of a decision in relation to a conduct complaint, and the person refuses or fails to produce the documents or information, the organisation may apply to the court for an order under subsection (2).

• (2) An order by the court under this subsection may require a 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 relevant professional organisation within such time as the court may order.

• (3) Subsections (3) to (7) of section 19 apply for the purposes of this section as they apply for the purposes of that section but subject to the modification that for the references in subsections (4) to (6) to “the Commission” substitute “ the relevant professional organisation ”.

Restriction upon disclosure of information: relevant professional organisations

52

• (1) Except as permitted by subsection (3), no information mentioned in subsection (2) may be disclosed.

• (2) The information is information—

• (a) contained in a conduct complaint;

• (b) which is given to or obtained by a relevant professional organisation or any person acting on its behalf in the course of, or for the purposes of—

• (i) any consideration of such a complaint;

• (ii) an investigation (including any report of such an investigation) into such a complaint.

• (3) Such information may be disclosed—

• (a) for the purpose of enabling or assisting the relevant professional organisation to exercise any of its functions in relation to such a complaint;

• (b) where the disclosure is required by or by virtue of any provision made by or under this Act or by any other enactment or other rule of law.

• (4) Any person who, in contravention of subsection (1), knowingly discloses any information obtained when employed by, or acting on behalf of, a relevant professional organisation is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

Unsatisfactory professional conduct: solicitors

53

• (1) The 1980 Act is amended as follows.

• (2) After section 42, insert—

(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.

.

• (3) After section 53 (powers of Tribunal), insert—

(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.

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• (4) After section 54 (appeals from decisions of Tribunal), insert—

(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.

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• (5) After section 55 (powers of Court), insert—

(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.

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• (6) In section 65(1) (interpretation), after the definition of “unqualified person” insert

; “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

• (1) The 1990 Act is amended as follows.

• (2) After section 20 (professional misconduct etc. by conveyancing or executry practitioners), insert—

(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.

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• (3) After section 20A (review by Council of certain of their decisions), insert—

(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

• (1) After section 42ZB of the 1980 Act (as inserted by section 53(2) of this Act), insert—

(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.

.

• (2) After section 20ZC of the 1990 Act (as inserted by section 54(2) of this Act), insert—

(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

• (1) In section 53 of the 1980 Act (powers of Tribunal)—

• (a) in subsection (2), after paragraph (ba) insert—

(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;

;

• (b) after subsection (7B) (as inserted by paragraph 1(19)(b) of schedule 5 to this Act), insert—

(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.

;

• (c) after subsection (8), insert—

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

.

• (2) In section 55 of the 1980 Act (powers of Court)—

• (a) in subsection (1)—

• (i) after paragraph (bb), insert—

(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

;

• (ii) in paragraph (c), after “solicitor” insert “ an amount not exceeding £10,000 ”;

• (b) after subsection (4) insert—

(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.

.

• (3) In section 20 of the 1990 Act (professional misconduct, etc.)—

• (a) in subsection (2), after paragraph (c) insert—

(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;

;

• (b) after that subsection, insert—

(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.

;

• (c) in subsection (2B), after paragraph (a) insert—

(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;

;

• (d) after subsection (11F) (as inserted by paragraph 3(4)(k) of schedule 5 to this Act), insert—

(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

• (1) In section 54 of the 1980 Act (appeals from decisions of Tribunal in cases other than unsatisfactory professional conduct)—

• (a) after subsection (1), insert—

(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.

;

• (b) in subsection (2), after paragraph (b) insert

; (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

;

• (c) after that subsection, insert—

(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.

.

• (2) In section 20 of the 1990 Act (professional misconduct etc. by conveyancing or executry practitioners)—

• (a) after subsection (8), insert—

(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.

;

• (b) after subsection (11), insert—

(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.

;

• (c) in subsection (11A)—

• (i) in paragraph (a), after “subsection” insert “ (8A)(b) or ”;

• (ii) after that paragraph, insert—

(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

;

• (iii) for the words “or, as the case may be,” substitute “ the finding referred to in paragraph (aa) or, as the case may be, the decision ”;

• (d) after that subsection, insert—

(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) Schedule 4 to the 1980 Act is amended as follows.

• (2) For paragraph 1 substitute—

(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.

.

• (3) In paragraph 2(a), for “lay” substitute “ non-lawyer ”.

• (4) In paragraph 3, for “lay” substitute “ non-lawyer ”.

• (5) In paragraph 5—

• (a) in sub-paragraph (b), for “1 lay member is” substitute “ 2 solicitor members are ”;

• (b) for sub-paragraph (c) substitute—

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

;

• (c) sub-paragraph (d) is repealed.

• (6) In paragraph 6, for “lay” substitute “ non-lawyer ”.

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

• (1) The 1980 Act is amended as follows.

• (2) In section 45 (safeguarding interests of clients of solicitors struck off or suspended)—

• (a) after subsection (4), insert—

(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.

;

• (b) in subsection (5), after the definition of “material date”, insert—

“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

• (1) The 1980 Act is amended as follows.

• (2) In section 57(2), after “solicitor” insert “ qualified to practise in accordance with section 4 ”.

• (3) In section 58, after subsection (4) insert—

(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

• (1) The 1986 Act is amended as follows.

• (2) In section 22(1)(b)(i) (automatic availability of criminal legal aid), for “23(1)(a)” substitute “ 23A(1) ”.

• (3) In section 23 (power of the court to grant legal aid)—

• (a) paragraph (a) of subsection (1); and

• (b) paragraph (a) of subsection (2),

are repealed.

• (4) After that section, insert—

(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.

.

• (5) In section 25(4) (legal aid in appeals), after “23” insert “ , 23A ”.

• (6) In section 25AB(4) (legal aid in references, appeals or applications for special leave to appeal to the Judicial Committee or the Privy Council), after “23” insert “ , 23A ”.

• (7) In section 30(3)(a) (legal aid in contempt proceedings), after “23” insert “ , 23A ”.

Criminal legal aid: conditions and reviews

65

• (1) Section 24 (legal aid in summary proceedings) of the 1986 Act is amended in accordance with subsections (2) to (6) of this section.

• (2) In subsection (1), for “subsection” substitute “ subsections (1A), (2) and ”.

• (3) After subsection (1) insert—

(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.

.

• (4) In subsection (2), after “that” insert

— (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)

.

• (5) After subsection (5) insert—

(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.

.

• (6) In subsection (6)—

• (a) the word “has either” is repealed;

• (b) at the beginning of paragraph (a) insert “ has ”;

• (c) at the end of paragraph (a) “or” is repealed;

• (d) at the beginning of paragraph (b) insert “ has ”;

• (e) at the end of paragraph (b) insert

; 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)

.

• (7) Section 25 (legal aid in appeals) of the 1986 Act is amended in accordance with subsections (8) and (9) of this section.

• (8) After subsection (2A) insert—