Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Legal Profession and Legal Aid (Scotland) Act 2007

Type Act of the Scottish Parliament

Publication 2007-01-19

Last updated 2026-03-05

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

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

(9) After subsection (3) insert—

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

(10) Section 25AB (legal aid in references, appeals or applications for special leave to appeal to the Judicial Committee of the Privy Council) is amended in accordance with subsections (11) and (12) of this section.

(11) After subsection (2) insert—

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

(12) After subsection (3) insert—

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

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

66

(1) Section 25D (removal of name from Register following failure to comply with code) of the 1986 Act is amended as follows.

(2) In subsection (1), after “be” insert “ , or may not have been, ”.

(3) After subsection (4), insert—

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

(4) In subsection (5), after “(4)(a)” insert “ or (4A)(a) ”.

(5) In subsection (8), after “(4)” insert “ or (4A) ”.

Register of advice organisations: advice and assistance

67

(1) The 1986 Act is amended as follows.

(2) In section 4(2)(a) (Scottish Legal Aid Fund), after “counsel” insert “ or registered organisation ”.

(3) In section 6 (definitions)—

(a) in subsection (1)—

(i) in the definition of “advice and assistance” after paragraph (a) insert—

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

;

(ii) in that definition, after paragraph (b) insert—

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

;

(iii) in the definition of “assistance by way of representation”, after the word “means” insert “ , subject to section 12B(3) of this Act, ”;

(b) in subsection (2), before the definition of “client” insert—

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

(4) In section 10 (financial limit)—

(a) in subsection (1)—

(i) after the word “solicitor” where it first occurs insert “ or, as the case may be, adviser ”;

(ii) in paragraph (a), after the word “solicitor” insert “ or adviser ”;

(b) in subsection (3)—

(i) after paragraph (a) insert—

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

;

(ii) after paragraph (b) insert—

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

(5) In section 12 (payments of fees or outlays otherwise than through clients' contributions)—

(a) in subsection (3), after the word “solicitor” where it first occurs insert “ or, as the case may be, the registered organisation, ”;

(b) in paragraph (d) of that subsection, after “solicitor” insert “ or the registered organisation ”.

(6) After section 12, insert—

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

(7) In section 33 (fees and outlays of solicitors and counsel)—

(a) after subsection (1) insert—

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

;

(b) in subsection (2), after “counsel” insert “ and, in respect of advice and assistance as mentioned in paragraph (b) of this subsection, advisers ”.

(8) In section 41 (interpretation)—

(a) after the definition of “advice and assistance” insert—

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

;

(b) after the definition of “the Register” insert—

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

;

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

(9) After Schedule 1 (Scottish Legal Aid Board) to the 1986 Act, insert—

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

Scottish Legal Aid Board: grants for certain purposes

68

(1) The 1986 Act is amended as follows.

(2) In section 4 (Scottish Legal Aid Fund)—

(a) at the beginning of subsection (2)(a) insert “ subject to section 4A(13), ”;

(b) after subsection (2)(ab) insert—

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

;

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

(3) After that section insert—

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

Financial limit: advice and assistance

69

(1) Section 10 (financial limit) of the 1986 Act is amended as follows.

(2) In subsection (1)(b)—

(a) after “except” insert “ , subject to subsection (4), ”;

(b) at the end insert “ or in the circumstances set out in subsection (1A) ”.

(3) After subsection (1) insert—

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

(4) After subsection (3) insert—

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

Further provision in relation to the Fund: advice and assistance

70

(1) In section 4 of the 1986 Act (Scottish Legal Aid Fund) in subsection (2), after paragraph (b) insert—

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

(2) After section 12B of that Act (inserted by section 67 of this Act) insert—

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

Availability of civil legal aid for defamation or verbal injury

71

(1) The 1986 Act is amended as follows.

(2) In section 14 (availability of civil legal aid), after subsection (1B) insert—

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

(3) In Part II of Schedule 2 (excepted proceedings)—

(a) in paragraph 1, after “to” insert “ section 14(1C) and ”;

(b) in paragraph 2, the words “, and legal” to the end are repealed.

Civil legal aid: conditions and reviews

72

(1) Section 14 (availability of civil legal aid) of the 1986 Act is amended in accordance with subsections (2) and (3) of this section.

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

(3) After subsection (1E) (inserted by section 71(2) of this Act), insert—

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

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

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Availability of legal aid: Judicial Committee of the Privy Council

73

(1) In section 25AB (legal aid in references, appeals or applications for special leave to appeal to the Judicial Committee of the Privy Council) of the 1986 Act—

(a) in subsection (1), for “or 13(a)” substitute “ , 13(a) or 33 ”;

(b) in subsection (4), after “11” insert “ or 33 ”.

(2) In paragraph 1 of Part 1 of Schedule 2 to that Act, for “and 13(b)” substitute “ , 13(b), 32 and 33 ”.

Solicitors employed by the Scottish Legal Aid Board

74

(1) In section 4 (Scottish Legal Aid Fund) of the 1986 Act, after subsection (2)(a) insert—

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

(2) In section 26 (employment to which Part V applies)—

(a) in subsection (2)—

(i) the word “local” is repealed;

(ii) in paragraph (a), for “its function” substitute “ any function it has ”;

(b) in subsection (3)(a)—

(i) the word “local” is repealed;

(ii) after “concerned” insert “ (whether wholly or partly) ”.

(3) In section 27 (arrangements for employment to which Part V applies) of that Act—

(a) after subsection (1), insert—

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

;

(b) subsections (2) and (3) are repealed.

Contributions, and payments out of property recovered

75

(1) The 1986 Act is amended as follows.

(2) In section 4 (Scottish Legal Aid Fund) in subsection (2), after paragraph (ab) insert—

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

(3) In that section, after subsection (3)(c) insert—

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

(4) In section 17 (contributions, and payments out of property recovered), after subsection (2D) insert—

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

Regulations under section 36 of the 1986 Act

76

(1) Section 36 (regulations) of the 1986 Act is amended as follows.

(2) After paragraph (c) of subsection (2) insert—

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

(3) After subsection (2) insert—

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

Part 5 — General

Advice, services or activities to which Act does not apply

77

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

Ancillary provision

78

(1) The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of, or for giving full effect to, this Act or any provision of it.

(1A) The Scottish Ministers may by order make such further provision as, having regard to the effect of the Legal Services Act 2007 so far as concerning the subject matter of Parts 1 and 2 of this Act (and applying in Scotland), they consider necessary or expedient in connection with this Act or any related provisions of the 1980 Act.

(2) An order under this section may—

(a) make different provision for different purposes;

(b) modify any enactment, instrument or document.

Regulations or orders

79

(1) Any power conferred by this Act on the Scottish Ministers to make orders or regulations—

(a) must be exercised by statutory instrument;

(b) may be exercised so as to make different provision for different purposes.

(2) A statutory instrument containing an order or regulations made under this Act (except an order made under section 26(1) or 82(2)) is, subject to subsection (3), subject to annulment in pursuance of a resolution of the Parliament.

(3) A statutory instrument containing—

(a) an order under section 10(7) or 24(8);

(b) regulations under section 41(1);

(i) section 78(1)or (1A) containing provisions which add to, replace or omit any part of the text of an Act;

(ii) paragraph 2(7) of schedule 1,

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

Interpretation

80

In this Act—

“the 1980 Act” means the Solicitors (Scotland) Act 1980 (c. 46);

“the 1986 Act” means the Legal Aid (Scotland) Act 1986 (c. 47);

“the 1990 Act” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40).

Minor and consequential modifications

81

Schedule 5 makes—

(a) minor modifications;

(b) modifications consequential on the provisions of this Act.

Short title and commencement

82

(1) This Act may be cited as the Legal Profession and Legal Aid (Scotland) Act 2007.

(2) The provisions of this Act, except this section and sections 46, 79 and 80 come into force on such day as the Scottish Ministers may by order appoint.

(3) Different days may be appointed under subsection (2) for different purposes.

SCHEDULE 1

Status

1

(1) The Commission is a body corporate.

(2) The Commission is not to be regarded as a servant or agent of the Crown, or having any status, immunity or privilege of the Crown, nor are its members or its employees to be regarded as civil servants, nor its property as property of, or held on behalf of, the Crown.

Membership of the Commission

2

(1) The Commission is to consist of the following members—

(a) a person to chair the Commission (“the chairing member”); and

(b) at least 8 but no more than 20 other members.

(2) Members are appointed by the Scottish Ministers, having consulted the Lord President of the Court of Session (“the Lord President”).

(3) The chairing member and at least 4 other members of the Commission must be members (in this schedule referred to as “non-lawyer members”) who are not within any of the categories mentioned in sub-paragraph (6).

(4) There must be at least 3 members of the Commission (in this schedule referred to as “lawyer members”) who are within any of the categories mentioned in sub-paragraph (6).

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The categories are—

(a) solicitors;

(b) advocates;

(d) persons exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) The number of non-lawyer members must be greater than the number of lawyer members , but the number of non-lawyer members must not exceed the number of lawyer members by more than three.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Terms of appointment etc.

3

(1) Subject to sub-paragraph (2), each member is to be appointed for a period of not less than 5 years and not exceeding 8 years.

(2) Appointments that constitute the Commission for the first time are to be in accordance with sub-paragraph (3).

(3) Each member is to be appointed for a period of not less than 4 years and not exceeding 6 years.

(4) A member—

(a) may by giving notice in writing to the Scottish Ministers resign office as a member of the Commission;

(b) otherwise, holds and vacates office in accordance with the terms and conditions of appointment.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

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

(a) persons who have experience of, and have shown capacity in—

(i) consumer affairs or complaints handling;

(ii) the provision of advice to members of the public on or in relation to such matters;

(b) persons who have experience of, and shown capacity in, the practice and provision of legal education and training;

(i) civil or criminal proceedings;

(ii) court procedures and practice generally;

(iii) the practice and provision of other legal services;

(iv) the monitoring of legal services;

(d) persons who have such other skills, knowledge or experience as the Scottish Ministers consider to be relevant in relation to the exercise of the Commission's functions.

Removal of members

5

(1) Subject to sub-paragraph (2), the chairing member may, by written notice, remove a member from office if the chairing member is satisfied as regards any of the following matters—

(a) that the member becomes insolvent;

(b) that the member—

(i) has been absent from meetings of the Commission for a period longer than 6 consecutive months without the permission of the Commission;

(ii) has been convicted of a criminal offence;

(iii) is otherwise unable or unfit to discharge the functions of a member or is unsuitable to continue as a member.

(2) The chairing member may not remove a member from office without the agreement of the Lord President of the Court of Session.

(3) The Lord President may, by written notice, remove the chairing member from office if the Lord President is satisfied as regards any of the matters mentioned in sub-paragraph (1)(a) or (b).

(4) For the purpose of sub-paragraph (1)(a) a member becomes insolvent on—

(a) the approval of a voluntary arrangement proposed by the member;

(b) being adjudged bankrupt;

(d) entering into a debt arrangement programme under Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) as the debtor;

(e) granting a trust deed for creditors.

Disqualification from membership

6

(1) A person is disqualified from appointment, and from holding office, as a member of the Commission if that person is—

(a) a member of the House of Commons;

(b) a member of the Scottish Parliament;

(2) A person who has held any of the offices set out in sub-paragraph (1)(a) to (c) is also disqualified from appointment as a member of the Commission for a period of one year starting from the day on which the person last held any of those offices.

Remuneration, allowances and pensions for members

7

(1) The Commission is to pay to its members such remuneration as the Scottish Ministers may in each case determine.

(2) The Commission is to pay to its members such allowances as the Scottish Ministers may in each case determine.

(3) The Commission may, with the approval of the Scottish Ministers—

(a) pay or make arrangements for the payment;

(b) make payments towards the provision;

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

(4) The reference in sub-paragraph (3) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of office.

Chief executive and other employees

8

(1) The Commission is to employ a chief executive.

(2) The chief executive is, with the approval of the Scottish Ministers, to be appointed by the Commission on such terms and conditions as the Commission may, with such approval, determine.

(3) The Commission may (subject to any directions given under sub-paragraph (4)) appoint such other employees on such terms and conditions as the Commission may determine.

(4) The Scottish Ministers may give directions to the Commission as regards the appointment of employees under sub-paragraph (3) (including the number of appointments) and as regards terms and conditions of their employment.

(5) The Commission must comply with directions given to it under sub-paragraph (4).

(6) The Commission may, with the approval of the Scottish Ministers—

(a) pay or make arrangements for the payment;

(b) make payments towards the provision;

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

(7) The reference in sub-paragraph (6) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment.

Accountable officer

9

(1) The chief executive is the accountable officer for the purposes of this paragraph.

(2) The functions of the accountable officer are—

(a) signing the accounts of the expenditure and receipts of the Commission;

(b) ensuring the propriety and regularity of the finances of the Commission;

(d) the duty mentioned in sub-paragraph (3).

(3) The duty is, where the accountable officer is required by the Commission to act in some way but considers that to do so would be inconsistent with the proper performance of the functions specified in sub-paragraph (2)(a) to (c), to—

(a) obtain written authority from the Commission before taking the action;

(b) send a copy of the authority as soon as possible to the Auditor General for Scotland.

Procedure

10

(1) Subject to sub-paragraph (2)—

(a) any quorum of the Commission as contained in rules made under section 32(1) must consist of a greater number of non-lawyer members than lawyer members;

(b) the chairing member must, if present, chair meetings of the Commission or any committee of the Commission;

(c) if the chairing member is not available to be present at a meeting of the Commission or any committee of the Commission, the chairing member is to appoint another non-lawyer member to chair the meeting or committee;

(d) the chairing member has a casting vote; and any person appointed by that member under sub-sub-paragraph (c) has a casting vote for the purposes of that appointment;

(e) the validity of any proceedings of the Commission, or any of its committees, is not affected by a vacancy in membership nor by any defect in the appointment of a member.

(2) Sub-paragraph (1) does not apply to a determination committee established under paragraph 11(1)(a).

Committees

11

(1) The Commission—

(a) must establish one or more determination committees in accordance with rules made under section 32(1) for the purpose of exercising any functions mentioned in paragraph 13(2) which a determination committee is authorised by the Commission to exercise;

(b) may establish other committees for any other purposes relating to its functions.

(2) Subject to sub-paragraph (3)—

(a) the Commission is to determine the composition of its committees;

(b) any quorum of a committee as contained in rules made by virtue of section 32 must consist of a greater number of non-lawyer members than lawyer members;

(3) Sub-paragraph (2) does not apply to a determination committee established under sub-paragraph (1)(a).

General powers

12

(1) The Commission may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, or appears to it to be conducive to, the exercise of the Commission's functions.

(2) In particular the Commission may—

(a) enter into contracts;

(b) with the consent of the Scottish Ministers, borrow money;

(d) obtain advice or assistance from any person who, in the Commission's opinion, is qualified to give it.

(3) The Commission may pay to any person from whom advice or assistance is obtained such fees, remuneration and allowances as the Commission may, with the approval of the Scottish Ministers, determine.

Delegation of functions

13

(1) The Commission may, subject to sub-paragraphs (2), (3) and (4), authorise—

(a) the chief executive;

(b) any of its committees;

(d) any of its other members of staff,

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

(2) The Commission may authorise—

(a) a decision under section 2(4)(a) that a complaint is frivolous, vexatious or totally without merit to be taken only by any of its committees or by one of the Commission's members;

(b) the function of deciding under section 3(1) whether—

(i) any element of a complaint is capable of being dealt with under a specified regulatory scheme;

(ii) the extent (if any) to which the Commission is able to take the preliminary steps referred to in section 2(4) in relation to the complaint and to deal with it under Part 1,

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

(c) the function of deciding whether any element of a complaint is about the exercise of discretion by any Crown Counsel or procurator fiscal in relation to the prosecution of crime or investigation of deaths to be exercised only by one of the Commission's members;

(d) the following functions to be exercised only by a determination committee—

(i) the making of a determination under section 9(1);

(ii) the making of a determination or direction under section 10(2);

(iii) the making of any decision or the publication of a report under section 13;

(iv) the making of a decision under section 23(2);

(v) the making of a direction under section 24(6).

(3) The Commission may not authorise the exercise of any of the following functions under sub-paragraph (1)—

(a) the approval of annual reports and accounts;

(b) making of rules under section 32(1);

(d) the approval of any budget or other financial plan.

(4) Sub-paragraph (1) does not affect the responsibility of the Commission for the exercise of its functions.

Location of office

14

(1) Subject to sub-paragraph (2), the Commission's determination of the location of the Commission's office premises is subject to the approval of the Scottish Ministers.

(2) The Scottish Ministers may direct the Commission as to the location of the Commission's office premises; and the Commission must comply with any such direction.

Accounts

15

(1) The Commission must—

(a) keep proper accounts and accounting records;

(b) prepare in respect of each financial year a statement of accounts; and

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

(2) The Scottish Ministers must as soon as practicable—

(a) send the statement of accounts to the Auditor General for Scotland for auditing;

(b) lay the audited statement before the Parliament.

(3) If requested by any person, the Commission is to make available at any reasonable time, without charge, in printed or electronic form, their audited accounts, so that they may be inspected by that person.

Reports

16

(1) As soon as practicable after the end of each financial year, the Commission must prepare a report on—

(a) the discharge of the Commission's functions during that year; and

(b) such action the Commission proposes to take in the following year in pursuance of its functions.

(2) The Commission must—

(a) send a copy of the report to the Scottish Ministers; and

(b) publish the report.

(3) In preparing and publishing the report the Commission must do so in accordance with such directions as the Scottish Ministers may give.

(4) The Scottish Ministers must as soon as practicable lay a copy of the report before the Parliament.

(5) The Commission may publish such other reports on matters relevant to the functions of the Commission as it considers appropriate.

SCHEDULE 2

1

Where the Commission—

(a) gives notice under subsection (1) of section 17 to any person having possession or control of any documents mentioned in subsection (3) of that section;

(b) gives notice under section 17(4) to any person having possession or control of any documents mentioned in subsection (6) of that section;

(c) requires any person under section 37(1) or (3) to provide it with information or documents referred to in that section,

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

2

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

(a) in the case mentioned in paragraph 1(a) or (c), without delay serve on the practitioner against whom the complaint is made, and any other person to whom the notice was given or requirement made;

(b) in the case mentioned in paragraph 1(b), without delay serve on the complainer,

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

3

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

4

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

SCHEDULE 3

Provision which must be included

1

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

(a) regulating the making to the Commission of complaints under Part 1, including—

(i) when a complaint is to be regarded as made for the purposes of the Part;

(ii) the eligibility of persons to make such complaints on behalf of other persons (whether living or not);

(b) requiring the Commission not to—

(i) investigate a services complaint by virtue of section 9;

(ii) remit a conduct complaint to a relevant professional body under section 6(2)(a) or 15(5)(a);

(iii) investigate a handling complaint by virtue of section 23,

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

(ca) specifying the grounds on which the Commission may discontinue the investigation of a complaint under section 9(1A)(a) or 23(2)(b) and reinstate a complaint under sections 9(1A)(b) or 23(2)(c);

(cb) as to the circumstances in which an investigation discontinued under section 9(1A)(a) or 23(2)(b) may cease to be able to be reinstated under sections 9(1A)(b) or 23(2)(c);

(d) regulating the proposal by the Commission under section 9(2) of a settlement of a complaint and how an accepted settlement is to be constituted;

(e) requiring the Commission—

(i) where it considers it appropriate, to hold a hearing in relation to a complaint being dealt with by it under Part 1;

(ii) to decide whether such a hearing should be in public or private;

(f) as to—

(i) the evidence which may be required or admitted;

(ii) the extent to which it may be oral or written;

(iii) the consequences of a person's failure to produce any information or document which the person has been required to produce;

(g) as to when reasons are to be given (in circumstances where they are not required by this Act to be given)—

(i) for the Commission's determinations, directions, decisions or recommendations under Part 1;

(ii) in respect of what matters relating to the determinations, directions, decisions or recommendations;

(h) as to the membership of a determination committee, including in particular provision requiring—

(i) that any such committee has at least 3 members, of which the majority are non-lawyer members of the Commission;

(ii) that any such committee is chaired by a lawyer member of the Commission;

(iii) where the Commission has under section 9(2) proposed a settlement as respects a complaint and the settlement has not been accepted as mentioned in section 9(4), that the members of the committee determining the complaint under section 9(1) or making a determination or direction under section 10(2), by virtue of paragraph 13(2) of schedule 1, must not have been involved in any aspect of the investigation of the complaint (including deciding under section 2(4)(a) that the complaint was frivolous, vexatious or totally without merit) or the formulation or making by the Commission of the proposed settlement;

(i) requiring, where the Commission itself (and not one of its determination committees) determines a complaint under section 9(1) or makes a determination or direction under section 10(2) in relation to a complaint, that any member of the Commission involved in doing so must not have been involved in any aspect of the investigation of the complaint (including any matter referred to in paragraph 13(2)(a) to (c) of schedule 1) or the formulation or making by the Commission under section 9(2) of a proposed settlement as respects the complaint;

(j) as to the charging of interest at such rate as may be specified by the Scottish Ministers by order under section 27(3)(b) on any amount of the annual general levy due to be paid to the Commission by a relevant professional organisation under section 27(2)(b) from the date the amount is due under the rules until it is paid;

(k) as to the charging of interest at such rate as may be specified by the Scottish Ministers by order under section 28(3)(b) on any amount of the complaints levy due to the Commission from the date the amount is due under the rules until it is paid;

(l) subject to schedule 1, regulating its own meetings (including any quorum) and that of its committees.

Provision which may in particular be included

2

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

(a) fixing time limits for the making of complaints against practitioners or relevant professional organisations or the stages of its investigation under Part 1;

(b) as to—

(i) extension of any time limit fixed by it under the rules;

(ii) the circumstances in which such extension may be made;

(c) as to the circumstances in which the Commission is not prevented by section 4(2) from taking the steps and further action referred to in that section in relation to a complaint which is made prematurely (within the meaning of section 4(4));

(d) as to the circumstances in which the Commission may rely on—

(i) with the agreement of the body concerned, findings in fact of a relevant professional organisation, the Scottish Solicitors' Discipline Tribunal or such other body as the Scottish Ministers may by order specify which has disciplinary functions;

(ii) previous findings in fact of the Commission;

(e) securing that a procedural defect in relation to—

(i) the making of;

(ii) the Commission dealing with,

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

(f) as to the collection of the amount of the annual general levy to be paid to it by the relevant professional organisations and of any complaints levy due to it by practitioners;

(g) as to the recovery by it from the relevant professional organisations of the annual general levy due to be paid to it by them and from practitioners of any complaints levy due by them;

(h) as to the circumstances in which the Commission may—

(i) waive a portion of the annual general levy which would otherwise be payable under section 27(1);

(ii) refund any portion of an amount paid under that section;

(i) as to the circumstances in which the Commission may waive the requirement under section 28(1) to pay the complaints levy in any case;

(j) as to the calculation of the total amount of the annual general levy each relevant professional organisation is due to collect under section 27(2)(a) in respect of each financial year and notification of each such organisation of the amount so calculated by the Commission.

3

In this schedule—

“lawyer member” has the meaning given by paragraph 2(4) of schedule 1;

“non-lawyer member” has the meaning given by paragraph 2(3) of that schedule.

SCHEDULE 4

1

Where a relevant professional organisation gives notice—

(a) under section 48(1)(a) to any person having possession or control of any documents mentioned in subsection (3) of that section;

(b) under section 48(1)(b) to any person having possession or control of any documents mentioned in subsection (5) of that section,

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

2

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

(a) in the case mentioned in paragraph 1(a), without delay serve on the practitioner against whom the complaint is made, and any other person to whom the notice was given;

(b) in the case mentioned in paragraph 1(b), without delay serve on the complainer,

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

3

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

4

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

SCHEDULE 5

Solicitors (Scotland) Act 1980 (c. 46)

1

(1) The 1980 Act is amended as follows.

(2) In section 3A(5) (discharge of functions of Council of Law Society)—

(a) in paragraph (a)—

(i) at the beginning, insert “ that ”;

(ii) for the word “, or”, where it first occurs, substitute

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

;

(iii) the words “the functions” are repealed;

(b) in paragraph (b)—

(i) before “under” insert “ that ”;

(ii) the words “, the functions” are repealed.

(3) In section 15(2) (discretion of Council in special cases as respects application for practising certificate)—

(a) in paragraph (d), after the word “under” insert “ section 42ZA(4)(b) or ”;

(b) in paragraph (i)—

(i) the words “, after a complaint has been made” are repealed;

(ii) in sub-paragraph (i), for the words “relating to his conduct of the business of a client” substitute “ the Council are investigating a conduct complaint remitted to them under section 6(a) or 15(5)(a) of the 2007 Act, ”;

(iii) in sub-paragraph (ii), at the beginning insert “ after a complaint has been made ”.

(4) In section 20(2) (Council's duty to supply lists of solicitors holding practising certificates), after the words “55(1)(ba)” insert “ or (bb) ”.

(5) In section 25A (rights of audience of solicitors in Court of Session etc.), after subsection (14), insert—

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

(6) In section 34 (rules as to professional practice, conduct and discipline)—

(a) after subsection (4) insert—

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

;

(b) after subsection (4B), insert—

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

(7) In section 35(3) (failure by solicitor to comply with rule made under section 35 may be treated as professional misconduct for certain purposes), for the words “for the purposes of Part IV” substitute “ or as unsatisfactory professional conduct. ”.

(8) In section 37(8) (failure by solicitor to comply with section 37, accountant's certificates rules etc. may be treated as professional misconduct for certain purposes), for the words “for the purposes of Part IV” substitute “ or as unsatisfactory professional conduct. ”.

(9) In section 38 (powers where dishonesty alleged), after subsection (3) insert—

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

(10) In section 39 (powers where undue delay alleged), after subsection (2), insert—

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

(11) In section 39A (powers where excessive fees etc. charged), after subsection (9) insert—

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

(12) In section 40 (powers where failure to comply with accounts rules, etc.), after subsection (4), insert—

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

(13) In section 42C (powers to examine documents and demand explanations in connection with complaints)—

(a) in subsection (3), for the words “documents specified in section 38(2)” substitute

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

;

(b) in subsection (4), for the words “section 38” in each place where they occur substitute “ sections 38, 45 and 46 ”;

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

(14) In section 44(4) (failure to comply with rules made under section may be treated as professional misconduct for certain purposes), for the words from “for” to the end substitute “ or unsatisfactory professional conduct. ”.

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

(a) in subsection (1), after “section”, where it first occurs, insert “ (except subsection (4A)) ”;

(b) for subsection (3), substitute—

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

;

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

;

(d) in subsection (5), the word “and” following the definition of “material date” is repealed.

(16) In section 46 (safeguarding interests of clients in certain other cases)—

(a) in each of subsections (2) and (3) for the words from “the provisions of section 38” to the end, substitute— “ the Council may do any of the things mentioned in subsection (3A) ”;

(b) after subsection (3), insert—

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

;

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

(17) In section 51 (complaints by Council and public office holders to Tribunal), after subsection (2) insert—

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

(18) In section 52 (procedure on certain complaints and appeals to Tribunal)—

(a) in the section title, after the word “complaints” insert “ and appeals ”;

(b) in subsection (1), after the word “complaint” insert “ or appeal ”;

(i) in paragraph (aa), after the words “42A(7)” insert “ , 42ZA(9), (10), (11) or (12), 42ZD(1) ”;

(ii) in sub-paragraph (ii) of paragraph (ab), for the words “(11)(b)” substitute “ (8A)(b), (11)(b) or (11ZC) ”;

(iii) after that sub-paragraph insert—

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