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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

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(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 amendments 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 will writers,

(b) prepare a report on the review,

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

(a) about the review of will writers,

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

(i) concerning the functions of approving bodies,

(ii) relating to will writers.

Step-in by Ministers

112

(1) The Scottish Ministers may by regulations make provision which establishes a body with a view to its becoming an approving body.

(2) The Scottish Ministers may by regulations make provision which allows them to act as an approving body in such circumstances as the regulations may prescribe.

(3) Regulations under subsection (2) may provide for this Chapter to apply with or subject to such modifications as the regulations may specify.

(4) No regulations are to be made under subsection (1) or (2) unless the Scottish Ministers believe that their intervention under this section is necessary, as a last resort, in order to ensure that the provision of will writing services by will writers is regulated effectively.

Chapter 3 — Further provision

Regard to OFT input

113

(1) The Scottish Ministers, whenever consulting the CMA under section 92(4)(a) or 103(4)(a), must request the CMA—

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

(b) in considering what (if any) 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 to take account of any advice given by the CMA within—

(a) the relevant consultation period, or

(b) otherwise, the period of 90 days beginning with the day on which they request the advice.

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

Complaints about services

114

In the 2007 Act, after Part 2A (inserted by section 81) insert—

(57H) (1) Parts 1 and 2 apply in relation to complaints made about confirmation agents and will writers as they apply in relation to complaints made about practitioners. (2) Subsection (1) is subject to— (a) subsection (3), 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 subsection (1). (3) In relation to a services or conduct complaint about a confirmation agent or will writer, the relevant approving body is to be regarded as the relevant professional organisation. (57I) (1) Parts 1 and 2 apply in relation to any complaint made about how an approving body has dealt with a conduct 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. (57J) (1) A confirmation agent must pay to the Commission— (a) the annual general levy, and (b) the complaints levy (if arising), in accordance with Part 1. (2) A will writer must pay to the Commission— (a) the annual general levy, and (b) the complaints levy (if arising), in accordance with Part 1. (3) Section 29 applies for the purposes of subsections (1) and (2) as it applies for the purposes of sections 27(1) and 28(1). (4) For the application of sections 27(1), 28(1) and 29 by virtue of subsections (1) to (3)— (a) an approving body is to be regarded as a relevant professional organisation whose members are its confirmation agents or (as the case may be) will writers, (b) a confirmation agent or (as the case may be) will writer 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. (57K) (1) An approving body must— (a) secure the collection by it, from its confirmation agents or (as the case may be) will writers, 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 its 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 57J(1)(a) and (2)(a) (including interest) as its 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 57J(1)(b) and (2)(b) (including interest) as its 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 approving body is to be regarded as the relevant professional organisation, (b) each of its confirmation agents or (as the case may be) will writers 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 57J(1) and (2) is subject to subsection (1). (57L) For the purposes of this Part— - “approving body”, - “confirmation agent”, - “will writer”, are to be construed in accordance with Part 3 of the Legal Services (Scotland) Act 2010.

Privilege and immunity

115

(1) For the purposes of the law on defamation, the publication under this Part of any material is privileged unless it is proved that the publication was made with malice.

(2) Neither an approving body 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 unless it is shown that the act or omission was in bad faith.

Appeal procedure

116

(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

117

(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.

Consequential modification

118

(1) In the Confirmation of Executors (Scotland) Act 1858, in section 2 (petition to commissary), after “1990” insert “ or by a confirmation agent within the meaning of Part 3 of the Legal Services (Scotland) Act 2010 ”.

(2) In the 1980 Act—

(a) in section 32 (offence for unqualified persons to prepare certain documents)—

(i) in subsection (1), after paragraph (c) insert

or (d) any will or other testamentary writing,

(ii) in subsection (2)(a), for “or papers” substitute “ , papers, will or testamentary writing ”,

(iii) in subsection (2C), after “1990” insert “ or to a confirmation agent within the meaning of Part 3 of the 2010 Act ”,

(iv) after subsection (2C) insert—

(2D) Subsection (1)(d) does not apply to a will writer within the meaning of Part 3 of the 2010 Act.

(b) in paragraph 1A of Schedule 4 (constitution, procedure and powers of Tribunal), after head (b)(ii) insert—

(iia) confirmation agents or will writers within the meaning of Part 3 of the 2010 Act;

(3) In section 12A (register of advice organisations) of the 1986 Act, after subsection (2)(b) insert—

(ba) is a confirmation agent or will writer within the meaning of Part 3 of the Legal Services (Scotland) Act 2010;

(4) In paragraph 2 of schedule 1 (the Scottish Legal Complaints Commission) to the 2007 Act, after sub-paragraph (6)(b) insert—

(ba) confirmation agents or will writers within the meaning of Part 3 of the Legal Services (Scotland) Act 2010;

Part 4 — The legal profession

Chapter 1 — Applying the regulatory objectives

Application by the profession

119

(1) Each of the regulatory authorities mentioned in subsection (2) must, so far as practicable when exercising the authority's regulatory functions (as defined in subsection (3)), 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.

(2) For the purpose of this section, the regulatory authorities are—

(a) the Court of Session,

(b) the Lord President,

(d) the Council of the Law Society,

(e) any other person who or body that has regulatory functions in relation to the provision of legal services by legal practitioners (of any type).

(3) For the purpose of this section, the regulatory functions of a regulatory authority—

(a) are its functions of regulating in respect of any matter the professional practice, conduct and discipline of legal practitioners (of any type),

(b) include its functions of making professional or regulatory rules to which legal practitioners (of any type) are subject.

(4) In subsections (2) and (3), “legal practitioners” means—

(a) solicitors (including firms of solicitors) or incorporated practices,

(b) advocates,

(d) litigation practitioners.

Chapter 2 — Faculty of Advocates

Regulation of the Faculty

120

(1) The Court of Session is responsible—

(a) for—

(i) admitting persons to (and removing persons from) the office of advocate,

(ii) prescribing the criteria and procedure for admission to (and removal from) the office of advocate,

(b) for regulating the professional practice, conduct and discipline of advocates.

(2) The Court's responsibilities within subsection (1)(a)(ii) and (b) are exercisable on its behalf, in accordance with such provision as it may make for the purpose, by—

(a) the Lord President, or

(b) the Faculty of Advocates.

Professional rules

121

(1) Subsections (2) and (3) apply to any rule which—

(a) prescribes the criteria or procedure for admission to (or removal from) the office of advocate, or

(b) regulates in respect of any matter the professional practice, conduct or discipline of advocates.

(2) If the rule is made by the Faculty, the rule—

(a) is of no effect unless it has been approved by the Lord President (and may not be revoked unless its revocation has been approved by the Lord President),

(b) must be published by the Faculty.

(3) In any other case, the rule—

(a) is of no effect unless the Faculty has been consulted on it (and may not be revoked unless the Faculty has been consulted on its revocation),

(b) requires—

(i) where made by the Lord President, to be published,

(ii) where made by the Court of Session, to be contained in an Act of Sederunt.

(4) Neither this section nor section 122 affects the validity of any rule—

(a) that was in force immediately prior to the commencement of this section, and

(b) which regulates in respect of any matter the professional practice, conduct or discipline of advocates.

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

Particular rules

122

(1) Subsection (2) applies to any rule—

(a) which regulates in respect of any matter the professional practice, conduct or discipline of advocates, and

(b) under which an advocate is prohibited from forming a legal relationship with another advocate, or any other person, for the purpose of their jointly offering professional services to the public.

(2) The rule is of no effect unless it has been approved by the Scottish Ministers after they have consulted the CMA.

(3) Subsection (2) is without prejudice to section 121(2) and (3).

(4) In section 31 (rules of conduct etc.) of the 1990 Act, subsection (1) is repealed.

Chapter 3 — Solicitors and other representatives

Removal of practising restrictions

Licensed providers as qualified persons

123

(1) In section 26 (offence for solicitors to act as agents for unqualified persons) of the 1980 Act, in subsection (3), after “does not include” insert “ a licensed legal services provider, ”.

(2) In section 30 (liability for fees of other solicitor) of the 1980 Act—

(a) after “incorporated practice” in the second place where it occurs insert “ or a licensed legal services provider ”,

(b) for “other solicitor or incorporated practice” substitute “ employed party ”,

(3) In section 31 (offence for unqualified persons to pretend to be solicitor or notary public) of the 1980 Act—

(a) the unnumbered block of text (from “In” to “practice.”) between subsections (1) and (2) is repealed,

(b) after subsection (2) insert—

(2A) This section does not apply to an incorporated practice. (2B) This section does not apply in relation to the taking or using by a licensed legal services provider of a name, title, addition or description if the licensed provider has the Society's written authority for using it. (2C) For the purpose of subsection (2B), the Council are to make rules which— (a) set the procedure for getting the Society's authority (and specify the conditions that the Society may impose if it gives that authority), (b) specify the grounds on which the Society may refuse to give that authority (and require the Society to give reasons in writing if it refuses to give that authority).

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

; or (ea) a licensed legal services provider;

(5) In section 33 (unqualified persons not entitled to fees etc.) of the 1980 Act—

(a) the first unnumbered block of text (from “Subject” to “matter.”) becomes subsection “ (1) ” and the second unnumbered block of text (from “This” to “cause.”) becomes subsection “ (2) ”,

(b) in subsection (2) (as so numbered), after “incorporated practice” insert “ or a licensed legal services provider ”.

(6) In section 65(1) (interpretation) of the 1980 Act—

(a) after the entry for “the 2007 Act” insert—

“the 2010 Act” means the Legal Services (Scotland) Act 2010;

(b) at the appropriate alphabetical place insert—

“licensed legal services provider” (or “licensed provider”) is to be construed in accordance with Part 2 of the 2010 Act;

(7) In section 17 (qualified conveyancers) of the 1990 Act, in subsection (23)—

(a) after paragraph (b) insert—

(ba) a licensed legal services provider within the meaning of Part 2 of the Legal Services (Scotland) Act 2010;

(b) after the subsequent “incorporated practice” insert “ , licensed provider ”.

Practice rules for licensed providers

124

(1) After section 33B of the 1980 Act insert—

(33C) (1) Subsection (2) applies to any rule made under section 34 which prohibits or unduly restricts the— (a) involvement of solicitors in or with, or employment of solicitors by, licensed legal services providers, (b) provision of services by licensed providers, or (c) operation of licensed providers in other respects. (2) The rule is of no effect in so far as it does so (and for this purpose it is immaterial when the rule was made). (3) The reference in subsection (1)(a) to solicitors does not include a solicitor who is disqualified from practice by reason of having been— (a) struck off (or removed from) the roll, or (b) suspended from practice.

(2) In addition—

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

(i) in subsection (1A)(f), for “, or incorporated practices which, are partners in or directors of multi-disciplinary practices” substitute “ have an interest in or are employed by (or otherwise within) licensed legal services providers ”,

(ii) subsection (3A) is repealed,

(b) in section 64A(1) of that Act, paragraph (b) and the word “; or” immediately preceding it are repealed,

(d) in section 64D(6) of that Act, for “sections 25A(9) or (10) and 34(3A)” substitute “ section 25A(9) or (10) ”,

(e) in section 65(1) of that Act—

(i) the definition of “multi-disciplinary practice” is repealed,

(ii) in the definition of “unqualified person”, the words “, other than a multi-disciplinary practice,” are repealed,

(f) in section 17(23) of the 1990 Act—

(i) paragraph (c) is repealed,

(ii) the subsequent words “, multi-disciplinary practice” are repealed,

(g) in paragraph 29(15) of Schedule 8 to that Act—

(i) in head (c), the insertion (into section 65(1) of the 1980 Act) of the definition of “multi-disciplinary practice” is repealed,

(ii) head (f) and the word “and” immediately preceding it are repealed.

(3) Subject to section 33C of the 1980 Act, nothing in Part 2 affects the operation of any rule which regulates in respect of any matter the professional practice, conduct or discipline of solicitors.

Citizens advice bodies

125

(1) In section 26 of the 1980 Act, in subsection (2), after “law centre” insert “ or a citizens advice body ”.

(2) In section 65(1) of the 1980 Act, at the appropriate alphabetical place insert—

“citizens advice body” means an association which is formed (and operates)— (a) otherwise than for the purpose of making a profit, and (b) with the sole or primary objective of providing legal and other advice (including information) to the public for no fee, gain or reward;

(3) The Scottish Ministers may by regulations modify the definition of “citizens advice body” in section 65(1) of the 1980 Act.

(4) Before making regulations under subsection (3), the Scottish Ministers must consult—

(a) the Lord President,

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

Lay representation

Court of Session rules

126

In the Court of Session Act 1988—

(a) in section 5 (power to regulate procedure), after paragraph (ee) insert—

(ef) to permit a lay representative, when appearing at a hearing in any category of cause along with a party to the cause, to make oral submissions to the Court on the party's behalf.

(b) after section 5 insert—

(5A) (1) Rules under section 5(ef)— (a) are to apply to situations in which the party is not otherwise represented, (b) may specify other conditions by reference to which the rules are to apply. (2) Section 5(ef) is subject to any enactment under which special provision may be made for a party to a particular type of case before the Court to be represented by a lay representative. (3) In section 5(ef) and this section, a “lay representative” is a person who is not— (a) a solicitor, (b) an advocate, or (c) one having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Sheriff court rules

127

In the Sheriff Courts (Scotland) Act 1971—

(a) in section 32 (power of Court of Session to regulate civil procedure), in subsection (1), after paragraph (m) insert—

(n) permitting a lay representative, when appearing at a hearing in any category of civil proceedings along with a party to the proceedings, to make oral submissions to the sheriff on the party's behalf.

(b) after section 32 insert—

(32A) (1) Rules under section 32(1)(n)— (a) are to apply to situations in which the party is not otherwise represented, (b) may specify other conditions by reference to which the rules are to apply. (2) Section 32(1)(n)— (a) does not restrict the operation of section 36(1), (b) is subject to any enactment (apart from section 36(1)) under which special provision may be made for a party to a particular type of case before the Court to be represented by a lay representative. (3) In section 32(1)(n) and this section, a “lay representative” is a person who is not— (a) a solicitor, (b) an advocate, or (c) one having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Guarantee Fund

Use of Guarantee Fund

128

(1) In section 43 (Guarantee Fund) of the 1980 Act—

(a) in subsection (2)—

(i) the word “or” immediately preceding paragraph (b) is repealed,

(ii) in paragraph (b), after “director” insert “ , member ”,

(iii) after paragraph (b) insert

; or (c) any licensed legal services provider or person within it in connection with its provision of legal services (with the same meaning as for Part 2 of the 2010 Act), even if— (i) the Society is not its approved regulator, or (ii) subsequent to the act concerned it has ceased to operate.

(b) in subsection (3)—

(i) in paragraph (cc), after “director” in the second place where it occurs insert “ , member ”,

(ii) after paragraph (cc) insert—

(cd) to a licensed provider or any investor or person who owns, manages or controls or is within the licensed provider in respect of a loss suffered by it or any such person in connection with the licensed provider's provision of legal services by reason of dishonesty on the part of any such persons;

(d) after subsection (7) insert—

(8) In the case of licensed providers, this section and Part I of Schedule 3 apply in relation to (and only to) such licensed providers as are regulated by an approved regulator that in furtherance of section 24(4) of the 2010 Act does not maintain its own compensation fund as referred to in that section. (9) In this section and paragraph 1 of Schedule 3— - “approved regulator”, - “investor”, are to be construed in accordance with Part 2 of the 2010 Act.

(2) In section 43 of the 1980 Act—

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

(aa) any conveyancing or executry practitioner or an employee of the practitioner in connection with the practitioner's practice as such, even if subsequent to the act concerned the practitioner has ceased to provide conveyancing or executry services;

(b) in subsection (3), after paragraph (c) insert—

(ca) to a conveyancing or executry practitioner in respect of a loss suffered by reason of dishonesty on the part of a partner or employee of the practitioner in connection with the practitioner's practice as such;

(3) Section 21C of the 1990 Act is repealed, but—

(a) the fund maintained under subsection (1) of that section immediately before its repeal by this subsection continues to be vested in the Council, and

(b) the Council is to apply that fund to the Scottish Solicitors Guarantee Fund (which is vested in the Law Society under section 43(1) of the 1980 Act).

Contributions to the Fund

129

(1) In Schedule 3 (the Scottish Solicitors Guarantee Fund) to the 1980 Act, in paragraph 1—

(a) in sub-paragraph (2A)—

(i) the words “directors of incorporated practices” become head (a),

(ii) after “directors” (in that head), insert “ or members ”,

(iii) after that head (as so numbered) insert

, or (b) investors in licensed legal services providers.

(b) in sub-paragraph (2B)—

(i) the words from “by every” to the end become head (a),

(ii) in that head (as so numbered), for “scale of such” substitute “ relevant scale of annual corporate ”,

(iii) after that head (as so numbered) insert

, and (b) by every licensed provider, in respect of each year during which or part of which it operates as such under the licence issued by its approved regulator, a contribution (also an “annual corporate contribution”) in accordance with the relevant scale of annual corporate contributions referred to in sub-paragraph (3).

(i) for “scale” in the first place where it occurs substitute “ scales ”,

(ii) the words from “, which scale” to the end are repealed,

(d) after sub-paragraph (3) insert—

(3A) The scales of annual corporate contributions— (a) are to be fixed under sub-paragraph (3) by reference to all relevant factors, including— (i) in the case of incorporated practices, the number of solicitors that they have as directors, members or employees, (ii) in the case of licensed providers, the number of solicitors that they have as investors or employees, (b) may otherwise make different provision as between incorporated practices and licensed providers.

(e) in sub-paragraph (4), after “incorporated practice” insert “ or a licensed provider ”,

(f) in sub-paragraph (5), after “incorporated practice” insert “ and licensed provider ”,

(g) in sub-paragraph (8), after “incorporated practice” insert “ or a licensed provider ”.

(2) In Schedule 3 to the 1980 Act, after paragraph 1B insert—

(1C) (1) Paragraph 1 applies to a conveyancing or executry practitioner as it applies to a solicitor. (2) But it does so with the following of its provisions to be disregarded— (a) the reference in sub-paragraph (1) to an application for a practising certificate, (b) sub-paragraphs (2), (2A), (6) and (9). (3) If a conveyancing or executry practitioner fails to pay an annual contribution due by virtue of this paragraph, the Council may suspend (pending payment) the relevant entry in the register maintained by them under section 17(1) or 18(1) of the 1990 Act. (4) For the purposes of section 43 and this paragraph, the references to a conveyancing or executry practitioner (or conveyancing or executry services) are to be construed in accordance with section 23 of the 1990 Act.

(3) In Schedule 3 to the 1980 Act, in paragraph 3(2)—

(a) for “and incorporated practices” substitute “ , incorporated practices and licensed providers ”,

(b) for “or incorporated practice or practices” substitute “ , incorporated practice or practices or licensed provider or providers ”.

Cap on individual claims

130

In Schedule 3 to the 1980 Act—

(a) in paragraph 4, after sub-paragraph (3) insert—

(3A) The amount of an individual grant from the Guarantee Fund may not exceed £1.25 million.

(b) after paragraph 4 insert—

(5) (1) The Scottish Ministers may by regulations amend the sum specified in paragraph 4(3A). (2) Before making regulations under sub-paragraph (1), the Scottish Ministers must consult the Council (and take account of sections 4 and 5 of the 2010 Act). (3) The power to make regulations under sub-paragraph (1) is exercisable by statutory instrument; but a statutory instrument containing any such regulations is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

The Law Society

Acting as approved regulator

131

After section 1 of the 1980 Act insert—

(1A) The Society may— (a) act as an approved regulator within the meaning of Part 2 of the 2010 Act, (b) do anything that is necessary or expedient for the purposes of doing so.

Council membership

132

(1) In section 3 (establishment and functions of Council of Law Society) of the 1980 Act, in subsection (1), after “elected” insert “ , co-opted or appointed ”.

(2) In Schedule 1 to the 1980 Act—

(a) in paragraph 2 (the Council's scheme)—

(i) in head (a), the word “, election,” is repealed,

(ii) after head (a) insert—

(aa) election, co-option and appointment to the Council;

(b) in paragraph 3 (detail of the scheme), after head (b) insert—

(bza) shall make provision for— (i) the election or co-option of solicitor members to the Council, (ii) the appointment of non-solicitor members to the Council;

(3A) (1) This paragraph applies for the purpose of paragraph 3(bza). (2) Persons are electable, or eligible to be co-opted, as solicitor members if they are members of the Society. (3) Persons are appointable as non-solicitor members if they appear to the Council— (a) to be qualified to represent the interests of the public in relation to the provision of legal services in Scotland, or (b) having regard to the Society's functions, to be suitable in other respects.

Regulatory committee

133

(1) In section 3A (discharge of functions of Council of the Law Society) of the 1980 Act, in subsection (11), for “is” substitute

is— (a) subject to sections 3B to 3G, and (b)

(2) After section 3A of the 1980 Act insert—

(3B) (1) The Council must, for the purpose mentioned in subsection (2)— (a) arrange under section 3A(1)(a) for their regulatory functions to be exercised on their behalf by a regulatory committee, and (b) ensure that the committee continues so to exercise those functions (in particular, for the discharge of the Council's responsibility as mentioned in section 3A(9)(a)). (2) The purpose is of ensuring that the Council's regulatory functions are exercised— (a) independently of any other person or interest, (b) properly in other respects (in particular, with a view to achieving public confidence). (3) Accordingly, the Council must not— (a) exercise their regulatory functions through any other means, or (b) interfere unduly in the regulatory committee's business. (4) Subsection (3)(a) is subject to— (a) any determination made by the regulatory committee in a particular case that it is necessary, for ensuring that something falling within the Council's regulatory functions is achieved appropriately, that specific action be taken otherwise than through the regulatory committee, and (b) such directions as the regulatory committee gives the Council (acting in any other capacity) in connection with the determination. (3C) (1) The following particular rules apply as respects the regulatory committee— (a) the committee's membership may include persons who are not members of the Council, (b) at least 50% of the committee's membership is to comprise lay persons, (c) lay persons, where they are not members of the Council, are appointable to the committee if they would be appointable to the Council as non-solicitor members (see paragraph 3A(3) of Schedule 1), (d) the committee is to appoint one of its lay members as its convener, (e) if the convener is not present at a meeting of the committee, another of its lay members is to chair the meeting. (2) Any sub-committee of the regulatory committee (formed under section 3A(2)(a)) is subject to the particular rules applying as respects the regulatory committee, except that— (a) a meeting of the sub-committee need not be chaired by one of its lay members, (b) it may co-opt members from outside the membership of the regulatory committee. (3) Nothing done by the regulatory committee (or a sub-committee of it) is invalid solely because of a temporary shortfall in the number of its lay members. (4) In subsection (1)(b), “lay persons” are persons who are not— (a) solicitors, (b) advocates, (c) conveyancing or executry practitioners as defined in section 23 of the 1990 Act, (d) those having a right to conduct litigation, or a right of audience, by virtue of section 27 of the 1990 Act, or (e) confirmation agents or will writers within the meaning of Part 3 of the 2010 Act. (3D) (1) This section applies in relation to any dispute arising between the regulatory committee and the Council (acting in any other capacity) with respect to the application of section 3B. (2) If the dispute cannot be settled by the parties, it is to be submitted to (and resolved by) arbitration. (3) The arbitrator is to be appointed— (a) jointly by the parties, or (b) in the absence of agreement for joint appointment, by the Lord President on a request made by either (or both) of them. (4) The arbitrator's resolution of the dispute is final and binding on the parties. (3E) (1) The Scottish Ministers may by regulations— (a) prescribe a maximum— (i) number of members that the regulatory committee, or any sub-committee of it, may have, (ii) proportion of the membership (of either) that may comprise co-opted members, (b) make further provision about the Council's regulatory functions if they believe that such provision is necessary for ensuring that those functions are exercised in accordance with the purpose stated in section 3B(2), (c) modify (by elaboration or exception) the definition in sections 3F and 3G if they believe that such modification is appropriate. (2) Before making regulations under subsection (1), the Scottish Ministers must consult the Council (and take account of sections 4 and 5 of the 2010 Act). (3) The power to make regulations under subsection (1) is exercisable by statutory instrument; but— (a) a statutory instrument containing regulations under subsection (1)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament, (b) a statutory instrument containing regulations under subsection (1)(b) or (c) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, the Parliament. (3F) (1) For the purposes of sections 3B to 3E, the Council's “regulatory functions” are their functions of regulating in respect of any matter the professional practice, conduct and discipline of— (a) solicitors (including firms of solicitors) and incorporated practices, (b) other legal practitioners, for example— (i) registered European or foreign lawyers, (ii) conveyancing or executry practitioners. (2) Those functions include (in particular) their functions as to— (a) setting standards of qualification, education and training, (b) admission of persons to the profession, (c) keeping the roll and other registers, (d) administering the Guarantee Fund, (e) making regulatory rules under any relevant enactment. (3) In subsection (1)(b)(ii), the reference to conveyancing or executry practitioners is to be construed in accordance with section 23 of the 1990 Act. (3G) If the Society acts as an approved regulator as mentioned in section 1A, the Council's “regulatory functions” for the purposes of sections 3B to 3E also comprise such regulatory functions as— (a) fall within the meaning of that expression as given for the purposes of Part 2 of the 2010 Act (by section 30(1) of that Act), and (b) are exercisable under that Part of that Act by the Society in its capacity as an approved regulator as so mentioned.

(3) In section 65(1) of the 1980 Act, at the appropriate alphabetical place insert—

“regulatory committee” means the regulatory committee formed in accordance with section 3B(1);

The 1980 Act: further modification

Keeping the solicitors roll etc.

134

(1) In section 7 (keeping the roll) of the 1980 Act, after subsection (2) insert—

(2A) The roll is also to record against the name of each enrolled solicitor the address of the place of business of that solicitor (as given under subsection (2) of that section).

(2) In section 12A (keeping the register) of the 1980 Act, after subsection (2) insert—

(2A) The register is also to record against the name of each lawyer entered on it the address of the place of business of that lawyer and related information (as given under section 12B(1)).

Removal from the roll etc.

135

(1) In section 9 (removal of name from roll on request) of the 1980 Act—

(a) the existing text becomes subsection (1),

(b) in subsection (1) (as so numbered), the words from “on” to “hand,” are repealed,

(2) But the Council are required to remove the name or annotation only if they are satisfied that— (a) the solicitor has made adequate arrangements with respect to the business which the solicitor then has in hand, and (b) it is otherwise appropriate to do so.

(2) In section 12C (removal of name from register on request) of the 1980 Act—

(a) the existing text becomes subsection (1),

(b) in subsection (1) (as so numbered), the words from “, on” to “hand,” are repealed,

(2) But the Council are required to remove the name or annotation only if they are satisfied that— (a) the solicitor has made adequate arrangements with respect to the business which the solicitor then has in hand, and (b) it is otherwise appropriate to do so.

Restoration to the roll

136

(1) In section 10 (restoration of name to roll on request) of the 1980 Act—

(a) after subsection (1) insert—

(1ZA) Where the restoration of a solicitor's name to the roll has been prohibited under section 53(2)(aa), the solicitor is entitled to have the solicitor's name restored to the roll if (but only if) the Tribunal so orders— (a) on an application made to it by the solicitor, and (b) after such enquiry as it thinks proper.

(b) in subsection (1A), after “section 9” insert “ (except where subsection (1ZA) applies) ”,

(2) In section 53 (powers of Tribunal) of the 1980 Act, in subsection (2)—

(a) after paragraph (a) insert—

(aa) if the solicitor's name has been removed from the roll under section 9, by order prohibit the restoration of the solicitor's name to the roll;

(b) the word “or” where it occurs immediately after any of paragraphs (a) to (e) is repealed.

Suspension from practice

137

(1) In section 18 (suspension of practising certificates) of the 1980 Act—

(a) after subsection (1) insert—

(1ZA) The Council may suspend from practice a solicitor who— (a) has been convicted of an offence involving dishonesty, or (b) in respect of an offence, has been— (i) fined an amount equivalent to level 4 on the standard scale or more (whether on summary or solemn conviction), or (ii) sentenced to imprisonment for a term of 12 months or more.

(b) in subsection (2), after “subsection (1)” insert “ or (1ZA) ”.

(2) In section 19 (further provisions relating to suspension of practising certificates) of the 1980 Act—

(a) after subsection (5A) insert—

(5B) A suspension from practice arising by virtue of section 18(1ZA) expires if the grounds for it no longer apply. (5C) On the occurrence of any of the circumstances mentioned in subsections (4) to (5B), the solicitor concerned must notify the Council in writing (and without delay).

(b) in subsection (6), after “section 18(1)” insert “ or by virtue of section 18(1ZA) ”.

(3) In section 24F (suspension of registration certificate) of the 1980 Act—

(a) after subsection (1) insert—

(1A) The Council may suspend from practice a registered European lawyer who— (a) has been convicted of an offence involving dishonesty, or (b) in respect of an offence, has been— (i) fined an amount equivalent to level 4 on the standard scale or more (whether on summary or solemn conviction), or (ii) sentenced to imprisonment for a term of 12 months or more.

(b) in subsection (2), after “subsection (1)” insert “ or (1A) ”.

(4) In section 24G (further provisions relating to suspension of registration certificate) of the 1980 Act—

(a) after subsection (4) insert—

(4A) A suspension from practice arising by virtue of section 24F(1A) expires if the grounds for it no longer apply. (4B) On the occurrence of any of the circumstances mentioned in subsections (2) to (4A), the lawyer concerned must notify the Council in writing (and without delay).

(b) in subsection (5), after “section 24F(1)” insert “ or by virtue of section 24F(1A) ”.

Accounts rules fee

138

(1) After section 37 of the 1980 Act insert—

(37A) (1) An annual fee set in accordance with this section (the “accounts fee”) is to be paid by each— (a) solicitor who is required by paragraph 1 of Schedule 3 (as read with section 43(7)) to pay an annual contribution on behalf of the Guarantee Fund, (b) incorporated practice that is required by that paragraph of that Schedule to pay an annual corporate contribution on that behalf. (2) The accounts fee is also to be paid by each— (a) registered European lawyer or registered foreign lawyer who is required by virtue of paragraph 1A or 1B of that Schedule to pay an annual contribution on that behalf, (b) multi-national practice to which the accounts rules apply by virtue of an enactment. (3) The accounts fee is to be set by the Council for the purpose of funding the exercise of their function of securing compliance (by the categories specified in subsections (1) and (2)) with the accounts rules. (4) The accounts fee is to be— (a) set— (i) no later than 30 September each year in respect of the 12 month period beginning with 1 November that year, or (ii) by reference to such other dates as the Council may fix, (b) paid to the Council by such date as they may fix. (5) The accounts fee may be set— (a) so as to involve different amounts (including nil) for different— (i) categories (as specified in subsections (1) and (2)), (ii) circumstances (by reference to all relevant factors), (b) in the case of incorporated practices, by particular reference to the number of solicitors that they have as directors, members or employees. (6) The Council may take such steps as they consider necessary for recovering the accounts fee due in accordance with this section.

(2) In section 65(1) of the 1980 Act, at the appropriate alphabetical place insert—

“accounts fee” has the meaning given by section 37A(1);

Powers of Tribunal

139

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

(a) in subsection (1)(b), for “sentenced to a term of imprisonment of not less than 2 years” substitute “ 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 ”,

(b) in subsection (2), after paragraph (bb) insert—

(bc) where— (i) an incorporated practice has been convicted, or has been found to have failed, as referred to in subsection (1)(c) or (d), and (ii) the Tribunal consider that the complainer has been directly affected by any misconduct by the practice to which the conviction or failure is (to any extent) attributable, direct the practice to pay to the complainer compensation (for loss, inconvenience or distress resulting from the misconduct) of such amount not exceeding £5,000 as the Tribunal may specify;

(d) in subsection (7C), after “paragraph (bb)” insert “ or (bc) ”,

(e) in subsection (9), after “subsection (2)(bb)” insert “ and (bc) ”.

(2) In section 54 (appeals from decisions of Tribunal) of the 1980 Act, in subsections (1C), (1D) and (1E), after “section 53(2)(bb)” in each place where it occurs insert “ or (bc) ”.

Chapter 4 — Other bodies

Scottish Legal Aid Board

Exclusion from giving legal assistance

140

In section 31 (solicitors and counsel) of the 1986 Act—

(a) in subsections (3), (4) and (5), for “relevant body” wherever appearing substitute “ Board ”,

(b) subsections (6) and (10) are repealed.

Availability of legal services

141

In the 1986 Act—

(a) in section 1 (the Scottish Legal Aid Board), after subsection (2) insert—

(2A) The Board also has the general function of monitoring the availability and accessibility of legal services in Scotland (including by reference to any relevant factor relating particularly to rural or urban areas).

(b) in section 2 (powers of the Board), after subsection (2)(d) insert—

(da) to give the Scottish Ministers such advice as it may consider appropriate in relation to the availability and accessibility of legal services in Scotland;

(2A) The Board is, from time to time, to give the Scottish Ministers such information as they may require relating to the availability and accessibility of legal services in Scotland.

Information about legal services

142

After section 35A of the 1986 Act insert—

(35AA) (1) For the purpose mentioned in subsection (4)(a), each of the bodies mentioned in subsection (3)(a), (b) and (c) must provide the Board with such information as the Board may reasonably require. (2) For the purpose mentioned in subsection (4)(b)— (a) each of the bodies mentioned in subsection (3)(a) and (b) must— (i) inform the Board whenever it upholds a conduct complaint about a solicitor or (as the case may be) an advocate, and (ii) give the Board a summary of the relevant facts, (b) the body mentioned in subsection (3)(d) must— (i) inform the Board whenever it upholds a services complaint about a solicitor or an advocate, and (ii) give the Board a summary of the relevant facts. (3) The bodies are— (a) the Law Society, (b) the Faculty of Advocates, (c) the Scottish Court Service, (d) the Scottish Legal Complaints Commission. (4) The purposes are the Board's exercise of its functions under— (a) section 1(2A), (b) section 31(3). (5) In subsection (2), a reference to a services or a conduct complaint is to be construed in accordance with Part 1 of the Legal Profession and Legal Aid (Scotland) Act 2007.

Scottish Legal Complaints Commission

Relevant practitioners

143

In section 46(1) (interpretation of Part 1) of the 2007 Act—

(a) in the definition of “inadequate professional services”, after paragraph (a)(v) insert—

(vi) a registered European or foreign lawyer, professional services that are in any respect not of the quality which could reasonably be expected of a competent lawyer of that type;

(b) in the definition of “practitioner”, after paragraph (g) insert—

(h) a registered European or foreign lawyer, whether or not registered at that time and notwithstanding that subsequent to that time the lawyer's registration has ceased to have effect or the lawyer has stopped practising;

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

(d) in the definition of “relevant professional organisation”, after paragraph (d) insert—

(e) a registered European or foreign lawyer, the Council;

(e) in the definition of “unsatisfactory professional conduct”, after paragraph (d) insert—

(e) a registered European or foreign lawyer, conduct that is not of the standard which could reasonably be expected of a competent and reputable lawyer of that type;

Minor amendments

144

In the 2007 Act—

(a) in section 29—

(i) in subsection (4), after “members” insert “ , and the Scottish Ministers, ”,

(ii) in subsection (9), for “subsection (1)” substitute “ subsection (8) ”,

(b) in section 46(1), in paragraph (c) in the definition of “unsatisfactory professional conduct”, for “section 27 of this Act” substitute “ section 27 of the 1990 Act ”,

(i) for “the function of deciding” substitute “ a decision ”,

(ii) for “whether” substitute “ that ”,

(iii) for “exercised” substitute “ taken ”,

(d) in paragraph 1(h)(iii) of schedule 3 for “whether” substitute “ that ”.

The 2007 Act: further provision

145

(1) In section 78 (ancillary provision) of the 2007 Act, after subsection (1) insert—

(1A) The Scottish Ministers may 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) In section 79 (regulations or orders) of the 2007 Act, in subsection (3)(c)(i), after “section 78(1)” insert “ or (1A) ”.

Part 5 — General

Regulations

146

(1) Any power of the Scottish Ministers to make regulations under the preceding Parts of this Act is exercisable by statutory instrument.

(2) The regulations may—

(a) make different provision for different purposes,

(b) include such incidental, consequential, transitional, transitory or saving provision as the Scottish Ministers consider necessary or expedient for the purposes of or in connection with the regulations.

(3) But—

(a) a statutory instrument containing regulations under—

(i) section 6(6),

(ii) section 12(2)(c) or (5),

(iii) section 38(7),

(iv) section 44(1),

(v) section 45(1),

(vi) section 48(6)(a)(i),

(vii) section 49(4),

(viii) section 67(3),

(ix) section 70(10),

(x) section 93(2)(f),

(xi) section 100(5)(b),

(xii) section 104(2)(f),

(xiii) section 111(5)(b), or

(xiv) section 112(1),

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

(b) a statutory instrument containing any other regulations under the preceding Parts of this Act is subject to annulment in pursuance of a resolution of the Parliament.

Further modification

147

(1) The Scottish Ministers may by regulations made by statutory instrument—

(a) amend the percentage specified in subsection (1) of section 49, or

(b) repeal section 49 (and consequentially the references in this Act to that section).

(2) But regulations may be made under subsection (1) only if the Scottish Ministers believe that the effect of the amendment or (as the case may be) repeal would be—

(a) compatible with the regulatory objectives, and

(b) appropriate in any other relevant respect.

(3) Before making regulations under subsection (1), the Scottish Ministers must consult—

(a) the Lord President,

(b) the Law Society,

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

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

(4) A statutory instrument containing regulations under subsection (1) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

Ancillary provision

148

(1) The Scottish Ministers may by regulations made by statutory instrument make such—

(a) supplemental provision, or

(b) incidental, consequential, transitional, transitory or saving provision,

as they consider necessary or expedient for the purposes of or in connection with this Act.

(2) But—

(a) a statutory instrument containing regulations under subsection (1) which adds to, replaces or omits any part of the text of an Act (including this Act) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament,

(b) a statutory instrument containing any other regulations under that subsection is subject to annulment in pursuance of a resolution of the Parliament.

Definitions

149

(1) In this Act (unless the context otherwise requires)—

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

“the 1986 Act” means the Legal Aid (Scotland) Act 1986,

“the 1990 Act” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990,

“the 2007 Act” means the Legal Profession and Legal Aid (Scotland) Act 2007,

“ CMA ” means Competition and Markets Authority,

“Faculty” means Faculty of Advocates,

“Law Society” means Law Society of Scotland,

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

(2) In this Act (unless the context otherwise requires)—

(a) the following expressions are to be construed in accordance with section 65(1) (interpretation) of the 1980 Act—

“advocate”,

“incorporated practice”,

“practising certificate”,

“registered European lawyer”,

“registered foreign lawyer”,

“solicitor”,

(b) the following expressions are to be construed in accordance with section 23 (interpretation) of the 1990 Act—

“conveyancing practitioner”,

“executry practitioner”,

(c) a reference to a litigation practitioner is to a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the 1990 Act.

(3) In this Act (unless the context otherwise requires), a reference to a professional association or body includes—

(a) the Law Society,

(b) any other organisation which serves a profession (for example, the Institute of Chartered Accountants of Scotland).

(4) Schedule 9 is an index of expressions introduced for—

(a) the whole Act,

(b) Parts 2 and 3.

Commencement and short title

150

(1) This section and sections 146 to 149 come into force on the day after Royal Assent.

(2) The other provisions of this Act come into force on the day that the Scottish Ministers by order made by statutory instrument appoint.

(3) An order under subsection (2) may appoint different days for different provisions.

(4) An order under subsection (2) may—

(a) make different provision for different purposes,

(b) include such transitional, transitory or saving provision as the Scottish Ministers consider necessary or expedient in connection with the commencement of this Act.

(5) The short title of this Act is the Legal Services (Scotland) Act 2010.

SCHEDULE 1

Application

1

This schedule applies where the Scottish Ministers—

(a) are satisfied that an act or omission of an approved regulator (or a series of acts or omissions) has had, or is likely to have, an adverse impact on the observance of any of the regulatory objectives, or

(b) consider that, for any other reason, it is necessary or expedient for one or more performance targets to be set as respects an approved regulator.

Power to set targets

2

(1) The Scottish Ministers may—

(a) set one or more performance targets for the approved regulator in relation to its regulatory functions,

(b) require the approved regulator to set one or more performance targets in relation to its regulatory functions.

(2) The approved regulator must (so far as practicable) comply with a performance target set for it under sub-paragraph (1)(a) or (b).

Notice of intention

3

(1) Before setting a performance target, or requiring the approved regulator to do so, the Scottish Ministers must give it a notice (a “notice of intention”) of their intention to do so.

(2) The notice of intention must—

(a) state that the Scottish Ministers intend to—

(i) set a performance target, or

(ii) require that the approved regulator set such a target,

(b) describe the proposed target (including the period within which it would have to be met),

(i) the act or omission (or series of acts or omissions) to which the proposed target relates,

(ii) any other facts which, in their opinion, justify the intended target-setting.

Consultation

4

(1) The approved regulator has 28 days beginning with the date of receipt of the notice of intention (or such longer period as the approved regulator and the Scottish Ministers may agree) to make representations to the Scottish Ministers about the proposed target.

(2) The Scottish Ministers must—

(a) give a copy of the notice of intention to such persons or bodies as they consider appropriate,

(b) consult them accordingly.

Decision

5

(1) The Scottish Ministers must have regard to any representations made to them by the approved regulator, or any consultee under paragraph 4(2), when deciding whether to proceed with the target-setting.

(2) The Scottish Ministers must—

(a) send to the approved regulator a notice (a “decision notice”) of their decision,

(b) notify the consultees under paragraph 4(2) of their decision,

(c) publish any target set, or requirement made by them, under paragraph 2(1)(a) or (b) in such manner as they consider most appropriate to bring it to the attention of any relevant person or body.

(3) If the Scottish Ministers' decision is in favour of target-setting, the decision notice must contain the target.

(4) An approved regulator must publish any target set by it following a requirement under paragraph 2(1)(b) in such manner as it considers most appropriate for bringing it to the attention of any relevant person or body.

(5) For the purposes of this schedule, relevant persons or bodies include—

(a) other approved regulators,

(b) providers of legal services,

(d) members of the public.

SCHEDULE 2

Application

1

This schedule applies where the Scottish Ministers are satisfied that—

(a) an act or omission of an approved regulator (or a series of acts or omissions) has had, or is likely to have, an adverse impact on the observance of any of the regulatory objectives,

(b) an approved regulator has failed to comply with a requirement imposed on it by or under this Act (including a direction imposed in accordance with this schedule),

(c) an approved regulator has failed to adhere to its internal governance arrangements (including, in particular, those relating to the independent and effective exercise of its regulatory functions), or

(d) an approved regulator has made a material amendment to its regulatory scheme under section 12(4).

Power to direct

2

(1) The Scottish Ministers may direct the approved regulator to take—

(a) in a case falling within paragraph 1(a), such action as they consider will counter the adverse impact, mitigate its effect or prevent its recurrence,

(b) in a case falling within paragraph 1(b) or (c), such action as they consider will remedy the failure, mitigate its effect or prevent its recurrence,

(c) in a case falling within paragraph 1(d), such action as they consider necessary or expedient in relation to such transitional matters as may arise from the amendment.

(2) A direction under sub-paragraph (1) may require the approved regulator to modify any part of its regulatory scheme.

(3) A direction under sub-paragraph (1) must not be framed by reference to—

(a) a specific disciplinary case, or

(b) other specific regulatory proceedings.

(4) A direction under sub-paragraph (1) may require the approved regulator to refrain from doing something.

(5) The approved regulator must (so far as practicable) comply with a direction given to it in accordance with this schedule.

Notice of intention

3

(1) Before giving a direction to an approved regulator under this schedule, the Scottish Ministers must give it a notice (a “notice of intention”) of their intention to do so.

(2) The notice of intention must—

(a) state that the Scottish Ministers intend to give a direction,

(b) indicate the terms of the proposed direction (including the date by which it would have to be complied with),

Consultation

4

(1) The approved regulator has 28 days beginning with the date of receipt of the notice of intention (or such longer period as the approved regulator and the Scottish Ministers may agree) to make representations to the Scottish Ministers about the proposed direction.

(2) The Scottish Ministers must—

(a) publish the notice of intention in such manner as they consider most appropriate for bringing it to the attention of any relevant person or body,

(b) give a copy of the notice of intention to such person or body as they consider appropriate,

(i) give the recipients under paragraph (b) a copy of any representations received from the approved regulator,

(ii) consult them accordingly in relation to the appropriateness of giving the direction.

(3) Where the Scottish Ministers consider that the proposed direction may have the effect of preventing competition within the legal services market, or significantly restricting or distorting such competition, they must (additionally)—

(a) send to the CMA—

(i) a copy of the notice of intention,

(ii) a copy of any representations received from the approved regulator,

(b) consult the CMA accordingly.

Decision

5

(1) The Scottish Ministers must have regard to any representations made to them by the approved regulator, or any consultee under paragraph 4(2)(c) or (3), when deciding whether to proceed with giving a direction.

(2) The Scottish Ministers must—

(a) send to the approved regulator a notice (a “decision notice”) of their decision,

(b) notify the consultees under paragraph 4(2)(c) and (3) of their decision,

(c) publish the decision notice in such manner as they consider most appropriate for bringing it to the attention of any relevant person or body.

(3) If the Scottish Ministers decide to give the direction, the decision notice must contain the direction.

(4) For the purposes of this schedule, relevant persons or bodies include—

(a) other approved regulators,

(b) providers of legal services,

(d) members of the public.

Extension of time to comply

6

(1) The Scottish Ministers may, on an application by an approved regulator made at any time after the giving of a direction, allow an approved regulator additional time to comply with the direction.

(2) Where such additional time is allowed, the Scottish Ministers must publicise that fact in such manner as they consider most likely to bring it to the attention of any relevant person or body.

Enforcement

7

(1) If at any time it appears to the Scottish Ministers that an approved regulator has failed to comply with a direction given under this schedule, they may make an application to the Court of Session for an order as described in sub-paragraph (2).

(2) On an application under sub-paragraph (1), the Court may (if it decides that the approved regulator has failed to comply with the direction) order the approved regulator to take such steps as the Court thinks fit for securing that the direction is complied with.

SCHEDULE 3

Application

1

This schedule applies where the Scottish Ministers are satisfied that—

(a) an act or omission of an approved regulator (or a series of acts or omissions) has had, or is likely to have, an adverse impact on the observance of any of the regulatory objectives, or

(b) an approved regulator has failed to comply with a requirement imposed on it by or under this Act.

Power to censure

2

The Scottish Ministers may make and publish a statement censuring the approved regulator for—

(a) the act or omission (or series of acts or omissions), or

(b) the failure.

Preliminary advice

3

Before making the statement, the Scottish Ministers must consult such person or body as they consider appropriate about the proposed statement.

Notice of intention

4

(1) If, after consulting under paragraph 3, the Scottish Ministers intend to proceed with making the statement, they must give the approved regulator a notice (a “notice of intention”) of that intention.

(2) The notice of intention must—

(a) state that the Scottish Ministers intend to publish the statement,

(b) specify the date on which they intend to publish the statement (which must be after the expiry of the period mentioned in paragraph 5(1)),

(d) specify—

(i) the act or omission (or series of acts or omissions), or

(ii) the failure,

to which the proposed statement relates.

Consultation

5

(1) The approved regulator has 28 days beginning with the date of receipt of the notice of intention (or such longer period as the approved regulator and the Scottish Ministers may agree) to make representations to the Scottish Ministers about the proposed statement.

(2) The Scottish Ministers must—

(a) provide the consultees under paragraph 3 with a copy of any representations received from the approved regulator,

(b) seek their further views in light of the representations.

Decision

6

(1) The Scottish Ministers must have regard to any representations made to them by the approved regulator, or any consultee under paragraph 3, when deciding whether to proceed with publishing the statement.

(2) The Scottish Ministers must—

(a) send to the approved regulator a notice (a “decision notice”) of their decision,

(b) notify the consultees under paragraph 3 of their decision,

(c) publish the decision notice in such manner as they consider most appropriate for bringing it to the attention of any relevant person or body.

(3) If the Scottish Ministers decide to publish the statement, the decision notice must contain the statement (and the statement need not be published separately).

(4) For the purpose of this schedule, relevant persons or bodies include—

(a) other approved regulators,

(b) providers of legal services,

(d) members of the public.

SCHEDULE 4

Application

1

This schedule applies where the Scottish Ministers are satisfied that an approved regulator has failed to—

(a) adhere to its internal governance arrangements (including, in particular, those relating to the independent and effective exercise of its regulatory functions), or

(b) comply with a direction given in accordance with schedule 2.

Power to impose penalty

2

(1) The Scottish Ministers may impose on the approved regulator a penalty, in respect of a failure mentioned in paragraph 1, of an amount not exceeding the prescribed maximum.

(2) Here, the prescribed maximum is the maximum amount that is prescribed in regulations made by the Scottish Ministers for the purpose of this paragraph.

(3) A financial penalty imposed under this paragraph is payable to the Scottish Ministers.

Amount of penalty

3

(1) When considering the appropriate amount of a penalty to be imposed under paragraph 2, the Scottish Ministers must have regard to—

(a) the seriousness of the failure,

(b) the nature of the failure in other respects.

(2) It is material for the purpose of sub-paragraph (1)—

(a) whether the failure was deliberate,

(b) if the failure is attributable to recklessness or negligence, the degree involved.

(3) The Scottish Ministers may consult such person or body as they consider appropriate when considering—

(a) whether to impose a penalty,

(b) the appropriate amount of the penalty.

Notice of intention

4

(1) Before imposing a financial penalty, the Scottish Ministers must give the approved regulator a notice (a “notice of intention”) of their intention to do so.

(2) The notice of intention must—

(a) state—

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