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

Legal Services (Scotland) Act 2010

Type Act of the Scottish Parliament

Publication 2010-11-09

Last updated 2016-11-30

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(2) The Head of Practice must give its approved regulator such information about the designated persons within the licensed provider as the approved regulator may reasonably request.

Non-solicitor investors

Fitness for involvement

62

(1) An approved regulator must—

(a) before issuing a licence to a licensed legal services provider, or renewing it, satisfy itself as to the fitness of every non-solicitor investor in the licensed provider for having an interest in the licensed provider,

(b) thereafter, monitor as it considers appropriate the investor's fitness in that regard.

(2) Licensing rules must—

(a) explain the basis on which a non-solicitor investor's fitness for having an interest in a licensed provider is determinable,

(b) provide that, where the approved regulator determines that the investor is unfit in that regard—

(i) a licence is not to be issued to the licensed provider (or renewed),

(ii) if issued, the licence is to be revoked or suspended.

(3) But the approved regulator need not act as required by licensing rules made under subsection (2)(b) if, by such time as it may reasonably appoint, the licensed provider demonstrates to it that (following disqualification as required by section 65(1) or otherwise) the investor no longer has the relevant interest.

(4) The approved regulator must, before making its final determination as to fitness, give the non-solicitor investor 28 days (or such longer period as it may allow) to—

(a) make representations to it,

(b) take such steps as the investor may consider expedient.

(5) A person who is determined as unfit under this section may appeal against the determination—

(a) to the sheriff,

(b) within the period of 3 months beginning with the date on which the determination is made.

Exemption from fitness test

63

(1) Section 62(1) is subject to this section.

(2) The approved regulator need not act as required by that section in relation to any exemptible investor in the licensed provider.

(3) Licensing rules must explain—

(a) any circumstances in which the approved regulator proposes to rely on subsection (2),

(b) any threshold below the percentage specified in subsection (4) by reference to which it proposes to rely on subsection (2),

(4) In subsection (2), an “exemptible investor” is an investor who has less than a 10% stake in the total ownership or control of the licensed provider.

Factors as to fitness

64

(1) This section applies for the purposes of section 62.

(2) The following are examples of things relevant as respects a non-solicitor investor's fitness for having an interest in a licensed provider—

(a) the investor's—

(i) financial position and business record,

(ii) probity and character,

(iii) family, business or other associations (so far as bearing on character),

(b) whether—

(i) the investor has ever caused, or substantially contributed to, a material breach of the terms or conditions of any licensed provider's licence,

(ii) the investor's involvement in the licensed provider may (in the approved regulator's opinion) be detrimental to the observance of the regulatory objectives or adherence to the professional principles, or to the compliance with this Part or any other enactment, by any person or body,

(iii) the investor has ever contravened section 66(1) or (2) or there is (in the approved regulator's opinion) a significant risk that the investor will ever contravene that section.

(3) A non-solicitor investor is to be presumed to be unfit for having an interest in a licensed provider if one or more of the following conditions is met—

(a) the first condition is that the investor—

(i) is subject to a trust deed granted by the investor for the benefit of the investor's creditors,

(ii) is subject to an individual voluntary arrangement under the Insolvency Act 1986, to repay the investor's creditors,

(iii) has been adjudged bankrupt and has not been discharged from bankruptcy, or

(iv) has been sequestrated (that is, sequestration of the investor's estate has been awarded) and the sequestration has not been discharged,

(b) the second condition is that the investor is subject to a bankruptcy restrictions order ... under the Bankruptcy (Scotland) Act 1985, the Bankruptcy (Scotland) Act 2016, the Insolvency Act 1986 or corresponding Northern Ireland legislation,

(i) is subject to a disqualification order or undertaking under the Company Directors Disqualification Act 1986 or corresponding Northern Ireland legislation,

(ii) is disqualified by a court from holding, or otherwise has been removed by a court from, a position of business responsibility (for example, from being a director of a charity),

(d) the fourth condition is that the investor—

(i) has been convicted of an offence involving dishonesty, or

(ii) in respect of an offence, has been fined an amount equivalent to level 4 on the standard scale or more (whether on summary or solemn conviction) or sentenced to imprisonment for a term of 12 months or more.

(4) Where a non-solicitor investor is a body, it is relevant as respects the investor's fitness for having an interest in a licensed provider whether or not the persons having (to any extent)—

(a) ownership or control of the body, or

(b) any other material interest in it,

would (if they were investors in the licensed provider in their own right) be held to be fit in that regard.

(5) In subsection (3)(b) and (c)(i), “Northern Ireland legislation” has the meaning given in section 24(5) of the Interpretation Act 1978.

Ban for improper behaviour

65

(1) Where an approved regulator determines that a non-solicitor investor in a licensed provider has contravened section 66(1) or (2), the approved regulator must disqualify the investor from having an interest in the licensed provider.

(2) A disqualification under subsection (1)—

(a) may be—

(i) without limit of time, or

(ii) for a fixed period,

(b) extends so as to apply in relation to every licensed provider (including a licensed provider that is subject to the regulation of a different approved regulator).

(3) Before disqualifying an investor under subsection (1), the approved regulator must give the investor 28 days (or such longer period as it may allow) to—

(a) make representations to it,

(b) take such steps as the investor may consider expedient.

(4) Practice rules must—

(a) set procedure (which the approved regulator is to follow) for imposing a disqualification under subsection (1),

(b) allow for review (and lifting) by the approved regulator of a disqualification imposed by it under that subsection.

(5) A person who is disqualified under subsection (1) may appeal against the disqualification—

(a) to the sheriff,

(b) within the period of 3 months beginning with the date on which the disqualification is imposed.

Behaving properly

66

(1) A non-solicitor investor in a licensed provider must not (in that capacity) act in a way that is incompatible with—

(a) the regulatory objectives or the professional principles,

(b) the licensed provider's duties under section 50(1), or

(i) other duties under this Part,

(ii) duties under any other enactment.

(2) A non-solicitor investor in a licensed provider must not (in that capacity)—

(a) interfere improperly in the provision of legal or other professional services by the licensed provider,

(b) in relation to any designated or other person within the licensed provider—

(i) exert undue influence,

(ii) solicit unlawful or unethical conduct, or

(iii) otherwise behave improperly.

More about investors

67

(1) Schedule 8 provides for other—

(a) requirements to which licensed legal services providers are subject,

(b) functions of approved regulators,

in relation to interests in licensed providers.

(2) The Scottish Ministers may by regulations make further provision—

(a) relating to interests in licensed providers,

(b) for licensing rules in connection with persons who have an interest in a licensed provider.

(3) The Scottish Ministers may by regulations—

(a) amend the percentage specified in section 63(4) and paragraph 4(3) of schedule 8,

(b) amend (by addition, elaboration or exception) a definition in subsection (6).

(4) Regulations under subsection (2)(a) may (in particular)—

(a) impose requirements to which a licensed provider, or an investor in a licensed provider, is subject,

(b) specify criteria or circumstances by reference to which a non-solicitor investor is to be presumed, or held, to be fit (or unfit),

(i) what amounts (to any extent) to ownership, control or another material interest,

(ii) what interest (or type) is relevant as regards a particular percentage stake in ownership or control,

(iii) by reference to a family, business or other association, what other interest (or type) also counts towards such a stake,

(d) for circumstances where an interest is held by a body, set out—

(i) what interest (or type) in the body counts towards the interest held by it,

(ii) the extent to which the interest in it so counts.

(5) Before making regulations under subsection (3), the Scottish Ministers must have the Lord President's agreement.

(6) In this Part—

(a) an “investor” in a licensed provider is any person who has (to any extent)—

(i) ownership or control of the licensed provider, or

(ii) any other material interest in it,

(b) a “non-solicitor investor” in a licensed provider is an investor who is not entitled to practise—

(i) as a solicitor, a firm of solicitors or an incorporated practice,

(ii) in England and Wales or Northern Ireland, as a solicitor (outwith the meaning for this Act), or

(iii) as a registered European or foreign lawyer,

(7) In sections 62 to 66, this section and schedule 8, a reference to a licensed provider includes an applicant to become one.

Discontinuance of services

Duty to warn

68

(1) Subsection (2) applies where a licensed legal services provider—

(a) is in serious financial difficulty, or

(b) for any reason (except revocation or suspension of its licence under this Part)—

(i) intends to stop providing legal services, or

(ii) is likely to become unable to continue providing legal services.

(2) The licensed provider must—

(a) notify (without delay) its approved regulator accordingly,

(b) provide the approved regulator with such relevant information as the approved regulator may require,

(c) take all reasonable steps to mitigate such disruption to its clients as is likely to result from the difficulty or (as the case may be) its ceasing to provide legal services.

Inability to operate

69

(1) Subsections (2) to (7) apply where—

(a) through the application of section 48 or 49 or otherwise, a licensed provider is no longer eligible to remain as such,

(b) because of a vacancy within a licensed provider, the licensed provider has within it no person who is eligible to be (or act as) its—

(i) Head of Legal Services, or

(ii) Head of Practice,

(i) a provisional liquidator, liquidator, receiver or judicial factor is appointed,

(ii) an administration or winding up order is made,

(iii) a resolution is passed by it for its voluntary winding up (except where that resolution is solely to facilitate reconstruction or amalgamation with another licensed provider), or

(d) for some other reason (except revocation or suspension of its licence under this Part), a licensed provider stops providing legal services.

(2) The licensed provider must—

(a) notify (without delay and no later than 7 days after the event referred to in subsection (1)) its approved regulator accordingly,

(b) provide the approved regulator with such information about the situation as the approved regulator may require.

(3) The approved regulator must revoke the licensed provider's licence except where the approved regulator is satisfied that—

(a) the situation is temporary, and

(b) there are sufficient arrangements in place to safeguard the interests of the licensed provider's clients until such time as the situation is rectified.

(4) Even if the exception mentioned in subsection (3) is made out, the approved regulator may suspend the licence pending rectification of the situation.

(5) For the purpose of subsections (3) and (4), the approved regulator must review the situation every 14 days (or, if it so chooses, more frequently).

(6) For so long as the licensed provider's licence is not revoked or suspended under subsection (3) or (4) in connection with the situation, the situation alone does not prevent the licensed provider from continuing (or recommencing) to provide legal services.

(7) Where a licensed provider has ceased to exist—

(a) its functions under subsection (2)(a) and (b) fall to its former Head of Practice or (if unavailable) its former Head of Legal Services,

(b) if neither Head is available, its function under subsection (2)(b) falls to a person nominated by its approved regulator.

(8) In this section, a reference to a licensed provider includes (as the context requires) a former licensed provider.

Safeguarding clients

70

(1) Subsections (2) and (3) apply where—

(a) a licensed provider—

(i) has given (or is required to give) notice to its approved regulator under section 68(2)(a) or 69(2)(a), or

(ii) has had (or is to have) its licence revoked or suspended under this Part, and

(b) the approved regulator has not informed it (or has not had an opportunity to do so) that the approved regulator is satisfied that it has made sufficient arrangements for the safeguarding of its clients' interests.

(2) The licensed provider must—

(a) prepare—

(i) in the case of revocation, final accounts,

(ii) in the case of suspension, interim accounts,

which (in particular) detail all sums held on behalf of clients,

(b) comply with any directions given under subsection (3).

(3) The approved regulator may direct the licensed provider to take specified action (or refrain from doing something) if the approved regulator considers that to be necessary or expedient for safeguarding the interests of the licensed provider's legal services clients.

(4) Directions given under subsection (3) may (in particular) require the licensed provider to make available to a relevant person or body any—

(a) document or information (of whatever kind) held in the licensed provider's possession or control which—

(i) relates to, or is held on behalf of, a client of the licensed provider, or

(ii) relates to any trust of which the licensed provider (or one of the designated persons within it) is sole trustee or co-trustee only with other designated persons in the licensed provider,

(b) sum of money held by the licensed provider—

(i) on behalf of a client,

(ii) subject to any trust of the kind mentioned in paragraph (a)(ii).

(5) For the purposes of subsection (4), a relevant person or body is—

(a) the particular client,

(b) the approved regulator,

(c) a provider of legal services that is properly instructed by the licensed provider, or the approved regulator, to act in place of the licensed provider.

(6) The Court of Session may, on an application by the approved regulator, make an order—

(a) confirming that the licensed provider is required to comply with a direction given under subsection (3),

(b) varying the direction or imposing such conditions as the Court considers appropriate in the circumstances,

(c) that, without the leave of the Court, no payment be made by any bank, building society or other body named in the order out of any account (or any sum otherwise deposited) in the name of the licensed provider.

(7) Before making such an order, the Court must—

(a) give the licensed provider and any other person with an interest an opportunity to be heard,

(b) be satisfied that the direction or (as the case may be) freezing of an account represents an appropriate course of action in all the circumstances of the case.

(8) The approved regulator may recover from the licensed provider any expenditure reasonably incurred by the approved regulator in consequence of its taking action under this section.

(9) Where a licensed provider has ceased to exist, its functions under (or arising by virtue of) this section fall—

(a) to its former Head of Practice or (if unavailable) its former Head of Legal Services,

(b) if neither Head is available, to a person nominated by its approved regulator.

(10) The Scottish Ministers may by regulations make further provision about the steps that are, in the circumstances within subsection (1), to be taken to safeguard the interests of clients of licensed providers.

(11) In this section, a reference to a licensed provider includes (as the context requires) a former licensed provider.

Distribution of client account

71

(1) Any sums of the kind to which section 42 of the 1980 Act applies that are held in a client account (as referred to in that section) kept by a licensed provider are, in any of the events mentioned in subsection (2A) of that section, to be distributed in the same way as they would if they were subject to that section.

(2) For the purpose of subsection (1), any reference in that section to an incorporated practice is to be read as if it were a reference to the licensed provider.

Professional practice etc.

Employing disqualified lawyer

72

(1) Subsection (2) applies in relation to—

(a) a person who has been struck off the roll of solicitors or suspended from practice as a solicitor,

(b) a person—

(i) who has been suspended from practice as a registered European lawyer or whose registration as a registered European lawyer has been withdrawn, or

(ii) who has been suspended from practice as a registered foreign lawyer or whose registration as a registered foreign lawyer has been withdrawn,

(c) a person who has been prohibited (including by reason of a disqualification or another removal of a right to provide services) from—

(i) practising as an advocate,

(ii) acting as a conveyancing or executry practitioner,

(iii) acting as a litigation practitioner, or

(iv) acting as a confirmation agent or will writer within the meaning of Part 3,

(d) a body whose certificate of recognition as an incorporated practice has been revoked.

(2) A licensed legal services provider must not employ or remunerate as a designated person—

(a) the person while the person is so debarred (however described in subsection (1)), or

(b) the body while the revocation subsists.

(3) But subsection (2) is inoperative in relation to the person or (as the case may be) body if the licensed provider has its approved regulator's written authority that it is so inoperative in the circumstances of the particular case.

(4) Any authority under subsection (3) may be given—

(a) for a specified period,

(b) with conditions attached.

(5) A licensed provider may appeal to the Court of Session if it is aggrieved by—

(a) the withholding of any such authority, or

(b) any conditions attached under subsection (4)(b).

(6) On an appeal under subsection (5)—

(a) the Court may direct the approved regulator on the matter as the Court considers appropriate,

(b) the Court's determination is final.

(7) If a licensed provider wilfully contravenes—

(a) subsection (2), or

(b) any conditions attached under subsection (4)(b),

its approved regulator may revoke or suspend its licence.

Concealing disqualification

73

(1) Subsection (2) applies to—

(a) a person who has been struck off the roll of solicitors or suspended from practice as a solicitor,

(b) a person—

(i) who has been suspended from practice as a registered European lawyer or whose registration as a registered European lawyer has been withdrawn, or

(ii) who has been suspended from practice as a registered foreign lawyer or whose registration as a registered foreign lawyer has been withdrawn,

(c) a person who has been prohibited (including by reason of a disqualification or another removal of a right to provide services) from—

(i) practising as an advocate,

(ii) acting as a conveyancing or executry practitioner,

(iii) acting as a litigation practitioner, or

(iv) acting as a confirmation agent or will writer within the meaning of Part 3.

(2) The person is guilty of an offence if, while the person is so debarred (however described in subsection (1)), the person seeks or accepts employment by a licensed provider without previously informing it of the debarment.

(3) A person who commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) Subsection (5) applies to a body whose certificate of recognition as an incorporated practice has been revoked.

(5) The body is guilty of an offence if, while the revocation subsists, the body seeks or accepts employment by a licensed provider without previously informing it of the revocation.

(6) A body which commits an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Pretending to be licensed

74

(1) A person commits an offence if the person—

(a) pretends to be a licensed provider, or

(b) takes or uses any name, title, addition or description implying falsely that the person is a licensed provider.

(2) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Professional privilege

75

(1) Subsection (2) applies to any communication made to or by—

(a) a licensed provider in the course of its acting as such in its provision of legal services for any of its clients,

(b) a designated person (apart from a solicitor or advocate) within the licensed provider who is acting—

(i) in connection with its provision of such legal services, and

(ii) at the direction, and under the supervision, of a solicitor.

(2) The communication is, in any legal proceedings, privileged from disclosure as if the licensed provider or (as the case may be) the person had at all material times been a solicitor acting for the client.

(3) Subsection (4) applies to any special provision which—

(a) is contained in an enactment or otherwise,

(b) relates to a solicitor, and

(i) the disclosure of information with respect to which a claim of professional privilege could be maintained, or

(ii) the production, seizure or removal of documents with respect to which such a claim could be maintained.

(4) The provision has effect in relation to a licensed provider, and any designated person (apart from a solicitor) within a licensed provider, as it does in relation to a solicitor but with any necessary modifications.

(5) This section is without prejudice to any other enactment or rule of law concerning professional or other privilege from disclosure (in particular, as applicable in relation to a solicitor).

Chapter 3 — Further provision

Achieving regulatory aims

Input by the OFT

76

(1) The Scottish Ministers or (as the case may be) an approved regulator must, whenever consulting the CMA under this Part, request the OFT—

(a) to give such advice as it considers appropriate in relation to the matter concerned,

(b) in considering what advice to give, to have particular regard to whether the matter concerned would have (or be likely to have) the effect of preventing, or significantly restricting or distorting, competition within the legal services market.

(2) The Scottish Ministers are or (as the case may be) the approved regulator is to take account of any advice given by the CMA within—

(a) the relevant consultation period, or

(b) otherwise—

(i) in the case of the Scottish Ministers, the period of 90 days beginning with the day on which they request the advice,

(ii) in the case of the approved regulator, the period of 30 days beginning on the day on which it requests the advice or such longer period not exceeding 90 days as it may agree with the OFT.

(3) The Scottish Ministers may publish any advice duly given to them by the CMA .

Role of approved regulators

77

(1) Subsections (2) to (4) apply in relation to the exercise by an approved regulator of its functions under this Part.

(2) The approved regulator must, so far as practicable, act in a way which—

(a) is compatible with the regulatory objectives, and

(b) it considers most appropriate with a view to meeting those objectives.

(3) The approved regulator must adopt best regulatory practice under which (in particular) regulatory activities should be—

(a) carried out—

(i) effectively (but without giving rise to unnecessary burdens),

(ii) in a way that is transparent, accountable, proportionate and consistent,

(b) targeted only at such cases as require action.

(4) The approved regulator must seek to ensure that its licensed legal services providers have regard to the regulatory objectives.

Policy statement

78

(1) An approved regulator must prepare and issue a statement of policy as to how, in exercising its functions under this Part, it will comply with its duties under section 77.

(2) The approved regulator—

(a) may revise the policy statement,

(b) if it does so, must re-issue the policy statement.

(3) The approved regulator may issue (or re-issue) the policy statement only with the approval of the Scottish Ministers.

(4) The approved regulator must publish the policy statement as issued (or re-issued).

(5) In exercising its functions under this Part, the approved regulator must have regard to the policy statement as issued (or re-issued).

Complaints

Complaints about regulators

79

(1) Any complaint about an approved regulator is to be made to the Scottish Legal Complaints Commission.

(2) The Commission is to determine whether or not the complaint is—

(a) one for which section 57E(1) of the 2007 Act makes provision,

(b) frivolous, vexatious or totally without merit.

(3) And—

(a) if the Commission determines that the complaint falls within subsection (2)(a), the Commission is to proceed by reference to section 57E(1) of the 2007 Act,

(b) if the Commission determines that the complaint falls within subsection (2)(b), the Commission—

(i) must notify the complainer and the approved regulator accordingly (with reasons),

(ii) is not required to take any further action,

(c) if the Commission determines that the complaint does not fall within subsection (2)(a) or (b), the Commission must refer the complaint to the Scottish Ministers.

(4) The Scottish Ministers must investigate any complaint about an approved regulator that is referred to them under subsection (3)(c).

(5) Where the Scottish Ministers do not uphold the complaint, they must notify the complainer and the approved regulator accordingly (with reasons).

(6) Where the Scottish Ministers uphold the complaint, they must—

(a) notify the complainer and the approved regulator accordingly (with reasons), and

(b) decide whether to proceed under section 38.

(7) The Scottish Ministers may delegate to the Commission any of their functions under subsections (4), (5) and (6)(a) (and, if they so delegate their function under subsection (4), they may also waive the referral requirement under subsection (3)(c)).

(8) The Scottish Ministers may by regulations make further provision about complaints made about approved regulators (and how they are to be dealt with).

Levy payable by regulators

80

(1) An approved regulator must pay to the Scottish Legal Complaints Commission—

(a) in respect of each financial year, an annual levy,

(b) if arising, a complaints levy.

(2) The amount of the annual levy or complaints levy payable by an approved regulator—

(a) is to be determined by the Commission,

(b) may be—

(i) different from any amount payable as an annual general levy or (as the case may be) a complaints levy under Part 1 of the 2007 Act,

(ii) in either case, of different amounts (including nil) in different circumstances.

(3) The complaints levy arises as respects an approved regulator where—

(a) the Scottish Ministers delegate to the Commission their function under section 79(4) in relation to a complaint made about the approved regulator, and

(b) the Commission upholds the complaint.

(4) Before determining for a financial year the amount of the annual levy or complaints levy, the Commission must consult—

(a) each approved regulator (with particular reference to the proposed amount to be payable by it),

(b) the Scottish Ministers.

Complaints about providers

81

In the 2007 Act, after Part 2 insert—

(57A) (1) Parts 1 and 2 apply in relation to complaints made about licensed legal services providers as they apply in relation to complaints made about practitioners. (2) Subsection (1) is subject to— (a) subsections (3) and (4), and (b) such further modification to the operation of Parts 1 and 2 as the Scottish Ministers may by regulations make for the purposes of— (i) subsection (1), (ii) section 57B(4) and (5). (3) In relation to a services complaint about a licensed provider, its approved regulator is to be regarded as the relevant professional organisation. (4) A conduct complaint may not be made about a licensed provider, but— (a) such a complaint may be made about a practitioner within such a provider, (b) the provisions relating to such a complaint remain (subject to such modification as to those provisions as is made under subsection (2)(b)) applicable for the purposes of section 57B(4) and (5). (5) Where an approved regulator receives (from a person other than the Commission) a complaint about the conduct of, or any services provided by, a practitioner within one of its licensed providers, the approved regulator must without delay send to the Commission the complaint and any material that accompanies it. (57B) (1) There is an additional type of complaint which applies only in relation to licensed providers (a “regulatory complaint”). (2) A regulatory complaint is where any person suggests that a licensed provider is failing (or has failed) to— (a) have regard to the regulatory objectives, (b) adhere to the professional principles, (c) comply with— (i) its approved regulator's regulatory scheme, (ii) the terms and conditions of its licence. (3) In relation to a regulatory complaint about a licensed provider, its approved regulator is to be regarded as the relevant professional organisation. (4) The procedure in respect of a regulatory complaint is (by virtue of section 57A(4)(b)) the same as it would be for a conduct complaint about a licensed provider, subject to such modification as to that procedure as is made under section 57A(2)(b). (5) The Commission and the approved regulator have (by virtue of section 57A(4)(b)) the same functions in relation to a regulatory complaint as they would have in relation to a conduct complaint about a licensed provider, subject to such modification as to those functions as is made under section 57A(2)(b). (57C) (1) A licensed provider must pay to the Commission— (a) the annual general levy, and (b) the complaints levy (if arising), in accordance with Part 1 (and in addition to any levy payable under that Part by a solicitor or other person within the licensed provider). (2) Section 29 applies for the purposes of subsection (1) as it applies for the purposes of sections 27(1) and 28(1). (3) For the application of sections 27(1), 28(1) and 29 by virtue of subsections (1) and (2)— (a) an approved regulator is to be regarded as a relevant professional organisation whose members are its licensed providers, (b) a licensed provider is to be regarded— (i) in connection with the annual general levy, as an individual person falling within the relevant category, (ii) in connection with the complaints levy, as an individual practitioner of the relevant type. (4) But the amount of the annual general levy for a licensed provider may be— (a) different from the amount to be paid by individuals, (b) of different amounts (including nil) in different circumstances. (5) The Commission— (a) must (so far as practicable) provide advice to any person who requests it as respects the process of making a regulatory complaint to the Commission, (b) may issue guidance under section 40 to approved regulators and licensed providers as respects how licensed providers are to deal with regulatory complaints. (57D) (1) An approved regulator must— (a) secure the collection by it, from its licensed providers, of the annual general levy due by them, and (b) pay to the Commission a sum representing the total amount which falls to be collected by it under paragraph (a) in respect of each financial year. (2) Subsection (3) of section 27 applies in relation to any sum due under subsection (1)(b) (including interest) as it applies in relation to any sum due under subsection (2)(b) of section 27. (3) Subsection (4) of section 27 applies in relation to any sum due under section 57C(1)(a) (including interest) as it applies in relation to any sum due under subsection (1) of section 27. (4) Subsection (3) of section 28 applies in relation to any sum due under section 57C(1)(b) (including interest) as it applies in relation to any sum due under subsection (1) of section 28. (5) For the application of sections 27(3) and (4) and 28(3) by virtue of subsections (2) to (4)— (a) the approved regulator is to be regarded as the relevant professional organisation, (b) each of its licensed providers is to be regarded— (i) in relation to section 27(4), as an individual person falling within the relevant category, (ii) in relation to section 28(3), as an individual practitioner of the relevant type. (6) Section 57C(1) is subject to subsection (1). (57E) (1) Parts 1 and 2 apply in relation to any complaint made about how an approved regulator has dealt with a regulatory complaint as they apply in relation to a handling complaint (relating to a conduct complaint) made about a relevant professional organisation. (2) Subsection (1) is subject to such modification to the operation of those Parts as the Scottish Ministers may by regulations make for the purposes of that subsection. (57F) (1) Section 39 also applies in relation to a compensation fund of its own that is maintained by an approved regulator in furtherance of section 24(2) of the Legal Services (Scotland) Act 2010. (2) For the application of section 39 by virtue of subsection (1)— (a) any such compensation fund is to be regarded as falling within subsection (1)(c) of that section, (b) the approved regulator is to be regarded as the relevant professional organisation. (57G) For the purposes of this Part— - “approved regulator” - “licensed legal services provider” (or “licensed provider”), - “professional principles”, - “regulatory objectives” - “regulatory scheme” are to be construed in accordance with Part 2 of the Legal Services (Scotland) Act 2010.

Registers and lists

Register of approved regulators

82

(1) The Scottish Ministers—

(a) must keep and publish a register of approved regulators,

(b) may do so in such manner as they consider appropriate.

(2) The register is to include the following information in relation to each approved regulator—

(a) its contact details (including its address, website and telephone number),

(b) the date on which it was given the relevant approval under section 7,

(c) the date on which it was given the relevant authorisation under section 10 (and the duration of that authorisation (unlimited or the fixed period)),

(d) the categories of legal services to which that authorisation relates,

(e) details of any measure taken by the Scottish Ministers under section 38.

Registers of licensed providers

83

(1) An approved regulator must keep and publish a register of its licensed legal services providers.

(2) The register is to include the following information in relation to each licensed provider—

(a) its name and any place of business,

(b) the relevant details about its licence,

(d) the name of every person intimated to the approved regulator under paragraph 3 of schedule 8,

(e) the names and the dates of appointment of—

(i) its Head of Legal Services, and

(ii) its Head of Practice or, if applicable, each member of its Practice Committee (including with specific reference to section 53(3)),

(f) whether the licensed provider has been the subject of any disciplinary action and (if so) a description of that action.

(3) In subsection (2)(b), the relevant details about a licensed provider's licence are—

(a) the date on which the licence was originally granted,

(b) the date on which it was most recently renewed,

(d) the date on which it will expire.

(4) But, in the case of a former licensed provider, the relevant details are instead—

(a) the date on which the licence was originally granted,

(b) the period for which the licensed provider held a licence,

(5) The Scottish Ministers may by regulations—

(a) make further provision about the information to be contained in the registers of licensed providers, and

(b) prescribe the manner in which those registers are to be kept and published.

(6) In this section, a reference to a licensed provider includes a former licensed provider.

Lists of disqualified persons

84

(1) An approved regulator must keep a list of the persons whom it has disqualified under section 56 (that is, from holding a certain position in a licensed legal services provider).

(2) The list kept under subsection (1) must include the following information in relation to each person concerned—

(a) the person's name,

(b) the—

(i) name of any relevant licensed provider,

(ii) any relevant position held by the person as at the date of the disqualification,

(d) the date of disqualification and its duration (unlimited or the fixed period),

(e) the reasons for the disqualification.

(3) An approved regulator must keep a list of the persons whom it has—

(a) determined as unfit under section 62 (that is, for being a non-solicitor investor in a licensed provider), or

(b) disqualified under section 65(1) (that is, from having an interest in a licensed provider).

(4) The list kept under subsection (3) must include the following information in relation to each person concerned—

(a) the person's name,

(b) the name of any relevant licensed provider,

(d) the grounds for the determination or (as the case may be) disqualification.

(5) A list kept under this section must not include information relating to a person in respect of whom the determination or (as the case may be) disqualification—

(a) has been reversed on appeal, or

(b) otherwise, no longer applies.

(6) The approved regulator must—

(a) publish the lists kept by it under this section, and

(b) notify the Scottish Ministers of any material alterations made to either of them.

(7) The Scottish Ministers may by regulations—

(a) make further provision about the information to be contained in the lists kept under this section,

(b) prescribe the manner in which those lists are to be kept and published.

Miscellaneous

Privileged material

85

(1) Subsection (2) applies to the publication under this Part of any—

(a) advice, report or notice, or

(b) other material.

(2) For the purposes of the law on defamation, the publication is privileged.

(3) But subsection (2) is ineffective if it is proved that the publication was made with malice.

Immunity from damages

86

(1) Neither an approved regulator nor any of its officers, members or employees is liable in damages for any act or omission occurring in the exercise (or purported exercise) of its functions under this Part.

(2) But subsection (1) is ineffective if it is shown that the act or omission was in bad faith.

Appeal procedure

87

(1) This section applies in relation to an appeal to the sheriff under this Part.

(2) The appeal is to be made by way of summary application.

(3) In the appeal, the sheriff may—

(a) uphold, vary or quash the decision that is the subject of the appeal,

(b) make such further order (including for the expenses of the parties) as is necessary in the interests of justice.

(4) The sheriff's determination in the appeal is final.

Corporate offences

88

(1) Subsection (2) applies where—

(a) an offence under this Part is committed by a relevant organisation, and

(b) the commission of the offence—

(i) involves the connivance or consent of, or

(ii) is attributable to the neglect of,

a responsible official of the organisation.

(2) The official (as well as the organisation) commits the offence.

(3) For the purpose of this section—

(a) a “relevant organisation” is—

(i) a company,

(ii) a limited liability partnership,

(iii) an ordinary partnership, or

(iv) any other body or association,

(b) a “responsible official” is—

(i) in the case of a company, a director, secretary, manager or other similar officer,

(ii) in the case of a limited liability partnership, a member,

(iii) in the case of an ordinary partnership, a partner,

(iv) in the case of another body or association, a person who is concerned in the management or control of its affairs,

but in each case also extends to a person purporting to act in such a capacity.

Effect of professional or other rules

89

(1) Sections 121(5) and 124(3) respectively make provision (in connection with this Part) as to the effect of professional rules to which advocates and solicitors are subject.

(2) Nothing in this Part affects the operation of any rule which regulates in respect of any matter the professional practice, conduct or discipline of other persons who provide professional services (in particular, as it may relate to their involvement in or with licensed legal services providers).

(3) This Part is without prejudice to any function of a person or body—

(a) arising by virtue of the application of another enactment (or a regulatory rule made under another enactment), and

(b) to regulate in any respect the provision of any professional or other services by licensed legal services providers.

Part 3 — Confirmation and will writing services

Chapter 1 — Confirmation services

Regulation of confirmation agents

Confirmation agents and services

90

(1) For the purposes of this Part, confirmation services are services that are—

(a) described in subsection (2), and

(b) provided (or offered)—

(i) to members of the public, and

(ii) for a fee, gain or reward.

(2) The services are those of drawing or preparing papers on which to found or oppose an application for the confirmation of a person as the executor nominate or dative in relation to the estate of a deceased person.

(3) It is immaterial for the description in subsection (2) whether or not the services also involve applying to the sheriff on behalf of the person so as to secure the person's confirmation as such (or taking other related action).

(4) For the purposes of this Part, a confirmation agent is a person on whom, in accordance with an approving body's regulatory scheme, the right to provide confirmation services is conferred.

Approving bodies

91

(1) For the purposes of this Chapter, an approving body is a professional or other body which is certified as such by the Scottish Ministers under section 92.

(2) That is, following an application to them by the body under subsection (3).

(3) An application to become an approving body must include—

(a) a copy of the applicant's proposed regulatory scheme (see section 92(1)(b)),

(b) a description of—

(i) the applicant's constitution and composition (including internal structure),

(ii) its activities.

(4) The applicant—

(a) must provide the Scottish Ministers with such other information as they may reasonably require for their consideration of its application,

(b) may withdraw its application at any time by giving them written notice to that effect.

(5) There is no restriction on the number of approving bodies that may exist at any time.

(6) The Scottish Ministers may by regulations prescribe fees that they may charge an applicant to become an approving body.

Certification of bodies

92

(1) The Scottish Ministers may certify the applicant as an approving body if they are satisfied that—

(a) the applicant is suitable to be an approving body,

(b) the applicant's proposed regulatory scheme is adequate (as determined with particular reference to section 93).

(2) The Scottish Ministers may certify the applicant as an approving body—

(a) either—

(i) without limit of time, or

(ii) for a fixed period,

(b) with reference to a specified date from which the approving body may exercise its functions in relation to its regulatory scheme,

(3) The Scottish Ministers may, after consulting the approving body, vary (including by addition or deletion) any conditions imposed under subsection (2)(c).

(4) Before deciding whether or not to certify the applicant as an approving body, the Scottish Ministers must consult—

(a) the CMA, and such other organisation (appearing to them to represent the interests of consumers in Scotland) as they consider appropriate,

(b) such other person or body as they consider appropriate.

(5) In consulting under subsection (4), the Scottish Ministers—

(a) must send a copy of the application to the CMA,

(b) may send—

(i) to any other consultee, a copy of the application,

(ii) to the CMA or any other consultee, a copy of any revised application.

(6) The Scottish Ministers must, with reasons, notify the applicant if they intend to—

(a) refuse to certify it as an approving body, or

(b) certify it as such subject to conditions.

(7) If notification is given to the applicant under subsection (6), it has 28 days beginning with the date of the notification (or such longer period as the Scottish Ministers may allow) to—

(a) make representations to the Scottish Ministers,

(b) take such steps as it may consider expedient.

(8) The Scottish Ministers may by regulations make further provision about certification under this section, including (in particular)—

(a) the process for seeking their certification,

(b) in relation to capability to act as an approving body, the criteria for their certification (including things that applicants must be able to demonstrate).

Regulatory schemes

93

(1) An approving body must—

(a) make a regulatory scheme for—

(i) conferring on any of the individual persons within its membership the right to provide confirmation services, and

(ii) regulating the provision of confirmation services by the persons on whom (in accordance with the scheme) that right is conferred, and

(b) apply the scheme in relation to them.

(2) The regulatory scheme is to—

(a) describe the training requirements to be met by a prospective confirmation agent,

(b) incorporate a code of practice to which a confirmation agent is subject,

(d) include rules about—

(i) the making and handling of any complaint about a confirmation agent,

(ii) the measures that may be taken by the approving body, in relation to a confirmation agent, if a conduct complaint (as construed by reference to section 2(1)(a) of the 2007 Act (and as if the confirmation agent were a practitioner to whom that section relates)) about the confirmation agent is upheld,

(e) allow a confirmation agent to make representations to the approving body before it takes any of the measures available to it by virtue of paragraph (d)(ii),

(f) cover such other regulatory matters as the Scottish Ministers may by regulations specify (and in such manner as they may so specify).

(3) The code of practice mentioned in subsection (2)(b) must—

(a) set out the standards to be met by confirmation agents,

(b) make such further arrangements as to the professional practice, conduct or discipline of confirmation agents for which provision is (in the approving body's opinion) necessary or expedient,

(i) the rescission or suspension of, or attaching of conditions to the exercise of, the right of a confirmation agent to provide confirmation services if the agent contravenes the code of practice,

(ii) the suspension of that right of a confirmation agent if a complaint, suggesting that the agent is guilty of professional misconduct in relation to the provision of confirmation services, is made about the agent.

(4) A confirmation agent may appeal against a decision taken under the regulatory scheme to rescind or suspend, or attach conditions to the exercise of, the agent's right to provide confirmation services—

(a) to the sheriff,

(b) within the period of 3 months beginning with the date on which that decision is intimated to the agent.

(5) An approving body must, so far as practicable when exercising its functions under this Chapter, observe the regulatory objectives.

Financial sanctions

94

(1) Rules included in a regulatory scheme in pursuance of section 93(2)(d)(ii) may provide for the imposition of a financial penalty.

(2) A financial penalty provided for by virtue of subsection (1) must not exceed the maximum amount permitted by the Scottish Ministers when giving their certification under section 92.

(3) A financial penalty imposed by virtue of this section is payable to the Scottish Ministers (but the approving body may collect it on their behalf).

(4) A confirmation agent may appeal against a financial penalty (or the amount of a financial penalty) imposed on the agent by virtue of this section—

(a) to the sheriff,

(b) within the period of 3 months beginning with the date on which the penalty is intimated to the agent.

(5) Where an appeal is made under subsection (4), no part of the penalty requires to be paid before the appeal is determined or withdrawn.

Review of own performance

95

(1) An approving body must review annually its performance.

(2) In particular, a review is to cover the following matters—

(a) the approving body's compliance with section 93(5),

(b) the exercise of its functions in relation to its regulatory scheme,

(3) The approving body must send a report on the review to the Scottish Ministers.

(4) The report must contain a copy of the approving body's annual accounts (but only so far as they are relevant in connection with its functions under this Chapter).

(5) The Scottish Ministers must lay a copy of the report before the Scottish Parliament.

(6) The Scottish Ministers may by regulations make further provision about—

(a) the review of approved bodies' performance,

(b) reports on reviews of their performance.

Pretending to be authorised

96

(1) A person commits an offence if the person—

(a) pretends to be a confirmation agent (or otherwise pretends to have the right to provide confirmation services under this Part), or

(b) takes or uses any name, title, addition or description implying falsely that the person is a confirmation agent (or otherwise so implying that the person has the right to provide confirmation services under this Part).

(2) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Other regulatory matters

Revocation of certification

97

(1) Subsection (2) applies where the Scottish Ministers are satisfied that an approving body has failed to comply with a direction under section 100(3).

(2) The Scottish Ministers may—

(a) revoke the certification given to the approving body under section 92,

(b) require the approving body to take specified action (or refrain from doing something) if they consider that to be necessary or expedient in connection with the revocation.

(3) The revocation under subsection (2) of the certification of an approving body has the effect, from the date on which the revocation becomes effective, of rescinding the right of each of its confirmation agents to provide confirmation services (so far as that right is conferred by the approving body in question).

Surrender of certification

98

(1) An approving body may, with the prior agreement of the Scottish Ministers, surrender the certification given to it under section 92.

(2) The approving body must—

(a) take all reasonable steps to mitigate such disruption to the clients of its confirmation agents as is likely to result from the surrender,

(b) in particular, take steps for ensuring that any relevant work is—

(i) completed, or

(ii) taken over by a suitably qualified person,

before the date from which subsection (5) is operative.

(3) The Scottish Ministers may direct the approving body to take specified action (or refrain from doing something) if they consider that to be necessary or expedient—

(a) for the purpose of subsection (2), or

(b) otherwise in connection with the surrender.

(4) Before the Scottish Ministers may agree to the surrender, they must be satisfied that the approving body has complied (or will comply) with—

(a) subsection (2), and

(b) any directions given to it under subsection (3).

(5) The surrender of an approving body's certification under subsection (1) has, from the date on which the surrender becomes effective, the effect of extinguishing the right of each of its confirmation agents to provide confirmation services (so far as that right is conferred by the approving body in question).

Register and list

99

(1) The Scottish Ministers—

(a) must keep and publish a register of approving bodies,

(b) may do so in a such manner as they consider appropriate.

(2) The register is to include the following information in relation to each approving body—

(a) its contact details (including its address, website and telephone number),

(b) the date on which it was given the relevant certification under section 92.

(3) An approving body must—

(a) keep a list of its confirmation agents,

(b) give the Scottish Ministers a copy of the list whenever they request it.

(4) An approving body must give the Scottish Ministers such information about its confirmation agents as the Scottish Ministers may reasonably request.

Ministerial functions

Ministerial intervention

100

(1) An approving body must—

(a) provide such information about its performance in relation to its regulatory scheme as the Scottish Ministers may reasonably request,

(b) do so within 21 days beginning with the date of the request (or such longer period as the Scottish Ministers may allow).

(2) An approving body—

(a) if directed to do so by the Scottish Ministers, must—

(i) review its regulatory scheme (or any relevant part of it), and

(ii) report to them its findings and (if appropriate) inform them of any proposed amendment to the scheme,

(b) may amend its regulatory scheme so as to give effect to the proposed amendment, but—

(i) any material amendment is invalid unless it has the prior approval of the Scottish Ministers,

(ii) the Scottish Ministers may not give their approval before they have consulted such person or body as they consider appropriate.

(3) The Scottish Ministers may—

(a) if, after consulting such person or body as they consider appropriate, they consider that an approving body's regulatory scheme is not (or is no longer) adequate, direct the approving body to amend the regulatory scheme in such manner as they may specify,

(b) if they are satisfied that an approving body has not complied with a requirement imposed on it by or under this Chapter, direct the approving body to take specified remedial action (or refrain from doing something).

(4) An approving body must—

(a) review annually the performance of its confirmation agents,

(b) prepare a report on the review,

(5) The Scottish Ministers may by regulations make further provision—

(a) about the review of confirmation agents,

(b) so far as it appears to them to be necessary for safeguarding the interests of clients of confirmation agents—

(i) concerning the functions of approving bodies,

(ii) relating to confirmation agents.

Chapter 2 — Will writing services

Regulation of will writers

Will writers and services

101

(1) For the purposes of this Part, will writing services are services that are—

(a) described in subsection (2), and

(b) provided (or offered)—

(i) to members of the public, and

(ii) for a fee, gain or reward.

(2) The services are those of drawing or preparing wills or other testamentary writings.

(3) For the purposes of this Part, a will writer is a person on whom, in accordance with an approving body's regulatory scheme, the right to provide will writing services is conferred.

Approving bodies

102

(1) For the purposes of this Chapter, an approving body is a professional or other body which is certified as such by the Scottish Ministers under section 103.

(2) That is, following an application to them by the body under subsection (3).

(3) An application to become an approving body must include—

(a) a copy of the applicant's proposed regulatory scheme (see section 103(1)(b)),

(b) a description of—

(i) the applicant's constitution and composition (including internal structure),

(ii) its activities.

(4) The applicant—

(a) must provide the Scottish Ministers with such other information as they may reasonably require for their consideration of its application,

(b) may withdraw its application at any time by giving them written notice to that effect.

(5) There is no restriction on the number of approving bodies that may exist at any time.

(6) The Scottish Ministers may by regulations prescribe fees that they may charge an applicant to become an approving body.

Certification of bodies

103

(1) The Scottish Ministers may certify the applicant as an approving body if they are satisfied that—

(a) the applicant is suitable to be an approving body,

(b) the applicant's proposed regulatory scheme is adequate (as determined with particular reference to section 104).

(2) The Scottish Ministers may certify the applicant as an approving body—

(a) either—

(i) without limit of time, or

(ii) for a fixed period,

(b) with reference to a specified date from which the approving body may exercise its functions in relation to its regulatory scheme,

(3) The Scottish Ministers may, after consulting the approving body, vary (including by addition or deletion) any conditions imposed under subsection (2)(c).

(4) Before deciding whether or not to certify the applicant as an approving body, the Scottish Ministers must consult—

(a) the CMA, and such other organisation (appearing to them to represent the interests of consumers in Scotland) as they consider appropriate,

(b) such other person or body as they consider appropriate.

(5) In consulting under subsection (4), the Scottish Ministers—

(a) must send a copy of the application to the CMA,

(b) may send—

(i) to any other consultee, a copy of the application,

(ii) to the CMA or any other consultee, a copy of any revised application.

(6) The Scottish Ministers must, with reasons, notify the applicant if they intend to—

(a) refuse to certify it as an approving body, or

(b) certify it as such subject to conditions.

(7) If notification is given to the applicant under subsection (6), it has 28 days beginning with the date of the notification (or such longer period as the Scottish Ministers may allow) to—

(a) make representations to the Scottish Ministers,

(b) take such steps as it may consider expedient.

(8) The Scottish Ministers may by regulations make further provision about certification under this section, including (in particular)—

(a) the process for seeking their certification,

(b) in relation to capability to act as an approving body, the criteria for their certification (including things that applicants must be able to demonstrate).

Regulatory schemes

104

(1) An approving body must—

(a) make a regulatory scheme for—

(i) conferring on any of the individual persons within its membership the right to provide will writing services, and

(ii) regulating the provision of will writing services by the persons on whom (in accordance with the scheme) that right is conferred, and

(b) apply the scheme in relation to them.

(2) The regulatory scheme is to—

(a) describe the training requirements to be met by a prospective will writer,

(b) incorporate a code of practice to which a will writer (and anyone acting on behalf of the will writer in relation to will writing services) is subject,

(d) include rules about—

(i) the making and handling of any complaint about a will writer,

(ii) the measures that may be taken by the approving body, in relation to a will writer, if a conduct complaint (as construed by reference to section 2(1)(a) of the 2007 Act (and as if the will writer were a practitioner to whom that section relates)) about the will writer is upheld,

(e) allow a will writer to make representations to the approving body before it takes any of the measures available to it by virtue of paragraph (d)(ii),

(f) cover such other regulatory matters as the Scottish Ministers may by regulations specify (and in such manner as they may so specify).

(3) The code of practice mentioned in subsection (2)(b) must—

(a) set out the standards to be met by will writers (and persons acting on their behalf in relation to will writing services),

(b) except in such circumstances as the approving body considers appropriate, prohibit the drawing or preparation of a will or other testamentary writing by a will writer which provides for the writer to be a beneficiary,

(c) require a will writer who provides the service of storing wills or other testamentary writings to keep in place sufficient arrangements for the storage of such documents (including arrangements in the event of the writer ceasing to provide will writing services),

(d) make such further arrangements as to the professional practice, conduct or discipline of will writers for which provision is (in the approving body's opinion) necessary or expedient,

(e) provide that it is a breach of the code of practice for a will writer to fail to comply with the writer's duties under any enactment specified in the code,

(f) provide that a breach of the code of practice by a person acting on behalf of a will writer in relation to will writing services constitutes a breach of the code of practice by the writer,

(g) allow for—

(i) the rescission or suspension of, or attaching of conditions to the exercise of, the right of a will writer to provide will writing services if the writer contravenes the code of practice,

(ii) the suspension of that right of a will writer if a complaint, suggesting that the writer is guilty of professional misconduct in relation to the provision of will writing services, is made about the writer.

(4) A will writer may appeal against a decision taken under the regulatory scheme to rescind or suspend, or attach conditions to the exercise of, the writer's right to provide will writing services—

(a) to the sheriff,

(b) within the period of 3 months beginning with the date on which that decision is intimated to the writer.

(5) An approving body must, so far as practicable when exercising its functions under this Chapter, observe the regulatory objectives.

Financial sanctions

105

(1) Rules included in a regulatory scheme in pursuance of section 104(2)(d)(ii) may provide for the imposition of a financial penalty.

(2) A financial penalty provided for by virtue of subsection (1) must not exceed the maximum amount permitted by the Scottish Ministers when giving their certification under section 103.

(3) A financial penalty imposed by virtue of this section is payable to the Scottish Ministers (but the approving body may collect it on their behalf).

(4) A will writer may appeal against a financial penalty (or the amount of a financial penalty) imposed on the writer by virtue of this section—

(a) to the sheriff,

(b) within the period of 3 months beginning with the date on which the penalty is intimated to the writer.

(5) Where an appeal is made under subsection (4), no part of the penalty requires to be paid before the appeal is determined or withdrawn.

Review of own performance

106

(1) An approving body must review annually its performance.

(2) In particular, a review is to cover the following matters—

(a) the approving body's compliance with section 104(5),

(b) the exercise of its functions in relation to its regulatory scheme,

(3) The approving body must send a report on the review to the Scottish Ministers.

(4) The report must contain a copy of the approving body's annual accounts (but only so far as they are relevant in connection with its functions under this Chapter).

(5) The Scottish Ministers must lay a copy of the report before the Scottish Parliament.

(6) The Scottish Ministers may by regulations make further provision about—

(a) the review of approved bodies' performance,

(b) reports on reviews of their performance.

Pretending to be authorised

107

(1) A person commits an offence if the person—

(a) pretends to be a will writer (or otherwise pretends to have the right to provide will writing services under this Part), or

(b) takes or uses any name, title, addition or description implying falsely that the person is a will writer (or otherwise so implying that the person has the right to provide will writing services under this Part).

(2) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Other regulatory matters

Revocation of certification

108

(1) Subsection (2) applies where the Scottish Ministers are satisfied that an approving body has failed to comply with a direction under section 111(3).

(2) The Scottish Ministers may—

(a) revoke the certification given to the approving body under section 103,

(b) require the approving body to take specified action (or refrain from doing something) if they consider that to be necessary or expedient in connection with the revocation.

(3) The revocation under subsection (2) of the certification of an approving body has the effect, from the date on which the revocation becomes effective, of rescinding the right of each of its will writers to provide will writing services (so far as that right is conferred by the approving body in question).

Surrender of certification

109

(1) An approving body may, with the prior agreement of the Scottish Ministers, surrender the certification given to it under section 103.

(2) The approving body must—

(a) take all reasonable steps to mitigate such disruption to the clients of its will writers as is likely to result from the surrender,

(b) in particular, take steps for ensuring that any relevant work is—

(i) completed, or

(ii) taken over by a suitably qualified person,

before the date from which subsection (5) is operative.

(3) The Scottish Ministers may direct the approving body to take specified action (or refrain from doing something) if they consider that to be necessary or expedient—

(a) for the purpose of subsection (2), or

(b) otherwise in connection with the surrender.

(4) Before the Scottish Ministers may agree to the surrender, they must be satisfied that the approving body has complied (or will comply) with—

(a) subsection (2), and

(b) any direction given to it under subsection (3).

(5) The surrender of an approving body's certification under subsection (1) has, from the date on which the surrender becomes effective, the effect of extinguishing the right of each of its will writers to provide will writing services (so far as that right is conferred by the approving body in question).

Register and list

110

(1) The Scottish Ministers—

(a) must keep and publish a register of approving bodies,

(b) may do so in such manner as they consider appropriate.

(2) The register is to include the following information in relation to each approving body—

(a) its contact details (including its address, website and telephone number),

(b) the date on which it was given the relevant certification under section 103.

(3) An approving body must—

(a) keep a list of its will writers,

(b) give the Scottish Ministers a copy of the list whenever they request it.

(4) An approving body must give the Scottish Ministers such information about its will writers as the Scottish Ministers may reasonably request.

Ministerial functions

Ministerial intervention

111

(1) An approving body must—

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