Search Legislation

Legal Services (Scotland) Act 2010

What Version

 Help about what version

Advanced Features

 Help about advanced features

Status:

Point in time view latest with prospective.This version of this schedule contains provisions that are prospective. Help about Status

Close

Status

The term provision is used to describe a definable element in a piece of legislation that has legislative effect – such as a Part, Chapter or section. A version of a provision is prospective either:

  1. where the provision (Part, has never come into force or;
  2. where the text of the provision is subject to change, but no date has yet been appointed by the appropriate person or body for those changes to come into force.

Commencement Orders listed in the ‘Changes to Legislation’ box as not yet applied may bring this prospective version into force.

Changes to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial team to Legal Services (Scotland) Act 2010. Any changes that have already been made by the team appear in the content and are referenced with annotations. Help about Changes to Legislation

Close

Changes to Legislation

Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.

Changes and effects yet to be applied to :

 Help about changes and effects
Close

Changes and effects

This section lists the changes and effects yet to be applied to the specific provision you are viewing.

SCHEDULE 4SFinancial penalties

(introduced by section 38(3))

This schedulenoteType=Explanatory Notes has no associated

ApplicationS

1This schedule applies where the Scottish Ministers are satisfied that an approved regulator has failed to—S

(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 penaltyS

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.S

(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 penaltyS

3(1)When considering the appropriate amount of a penalty to be imposed under paragraph 2, the Scottish Ministers must have regard to—S

(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 intentionS

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.S

(2)The notice of intention must—

(a)state—

(i)that the Scottish Ministers intend to impose a financial penalty,

(ii)the amount of the proposed penalty,

(b)by reference to the failure concerned and any other relevant facts, explain why the Scottish Ministers consider that—

(i)it is appropriate to impose a penalty,

(ii)the amount of the proposed penalty is appropriate.

ConsultationS

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 penalty.S

(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 that notice, and a copy of any representations received from the approved regulator, to any person whom or body that they consult under sub-paragraph (3).

(3)After the expiry of the period for representations, the Scottish Ministers may consult such person or body as they consider appropriate about the appropriateness of—

(a)imposing the penalty,

(b)its amount.

DecisionS

6(1)The Scottish Ministers must have regard to any representations made to them by the approved regulator, and any consultee under paragraph 5(3), when deciding whether to proceed with imposing the penalty.S

(2)The Scottish Ministers must—

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

(b)notify the consultees under paragraph 5(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)The decision notice must—

(a)state whether or not a financial penalty is being imposed,

(b)give the reason for the imposition (or otherwise) of a penalty,

(c)if a penalty is being imposed—

(i)state the amount of the penalty (and mention any allowance made for payment by instalments),

(ii)explain why the Scottish Ministers consider that amount to be appropriate,

(iii)specify the date by which the penalty requires to be paid in full.

(4)That date must not be within the 3 months beginning with the day on which the decision notice is given to the approved regulator (but this does not preclude earlier payment at the initiative of the approved regulator).

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

(a)other approved regulators,

(b)providers of legal services,

(c)organisations representing the interests of consumers,

(d)members of the public.

Variation of penaltyS

7(1)The Scottish Ministers may, on an application from an approved regulator received within 21 days beginning with the day on which the decision notice is given to the approved regulator—S

(a)vary the date by which the penalty requires to be paid,

(b)allow for the penalty to be paid by—

(i)instalments (if not already allowed), or

(ii)different instalments (if allowed).

(2)Where an application is made under sub-paragraph (1), no part of the penalty is required to be paid before the Scottish Ministers notify the approved regulator of their determination of the application.

AppealS

8(1)An approved regulator on which a financial penalty is imposed under paragraph 2 may appeal to the Court of Session against the penalty on one or more of the appeal grounds.S

(2)On an appeal under this paragraph—

(a)the Court may—

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

(ii)make such further order as is necessary in the interests of justice,

(b)the Court's determination is final.

Appeal groundsS

9The grounds for an appeal under paragraph 8 are—S

(a)that, in the circumstances of the case—

(i)it was not appropriate to impose the penalty, or

(ii)the amount of the penalty is excessive,

(b)that the date specified under paragraph 6(3)(c)(iii) is unreasonable,

(c)that the other arrangements for payment are unreasonable, including—

(i)the absence of any provision for payment by instalments, or

(ii)any provision for payment by instalments that has been allowed,

(d)that—

(i)the penalty was imposed otherwise than in accordance with this schedule, and

(ii)the approved regulator's interests have been substantially prejudiced as a result.

Time for appealS

10(1)An appeal under paragraph 8 is to be made—S

(a)within the 3 months beginning with the day on which the decision notice is given to the approved regulator, or

(b)where the ground of appeal is referable to something done under paragraph 7(1), within the 3 months beginning with the day on which the approved regulator is notified of the thing done.

(2)Where an appeal is made under paragraph 8, no part of the penalty requires to be paid before the appeal is determined or withdrawn.

InterestS

11(1)If the whole or part of a penalty is not paid as required in accordance with this schedule the unpaid amount carries interest at the prescribed rate.S

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

DefaultS

12(1)Sub-paragraph (2) applies where the whole or part of a penalty is not paid as required in accordance with this schedule.S

(2)The Scottish Ministers may recover from the approved regulator, as a debt due to them—

(a)the penalty or (as the case may be) the part of it, and

(b)the interest that it carries.

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Latest with prospective:Latest with prospective is the latest available (revised) version of the legislation but includes the prospective versions of individual provisions where they exist. This point in time view of the legislation becomes available after clicking a prospective version of a provision via Advanced Features > Show Timeline of Changes.

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enactedversion that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources