Chapter 1 – Objectives, principles and key expressions
20.This Chapter sets out the objectives of legal services regulation and the professional principles to which persons providing legal services should adhere. It also deals with how these can be amended. It also defines legal services and other key expressions used in the Part.
Overview of Part
Section 1 – Overview of the regulatory framework
21.This section gives an overview of the provisions in Part 1 to help readers navigate them and understand the framework more readily.
Regulatory objectives
Sections 2 and 3 – The regulatory objectives and their application
22.Section 2 sets out the objectives of the regulation of legal services. These are referred to as “
23.The regulatory objectives are a high-level statement of both what the regulation of legal services is to achieve and how it is to be achieved. While section 2 sets out the objectives, section 3 sets out how they are to be applied. The two sections must be read together as section 3 elaborates on several of the concepts that are contained in section 2.
24.While some of the regulatory objectives are the same as those that were originally set in section 1 of the 2010 Act, they have been added to and now incorporate key aspects of the Better Regulation Principles,(1) the Consumer Principles(2) and Human Rights (PANEL) Principles.(3) These can be found in section 2(1)(b) to (d) (as read with section 3(2) to (4)).
25.In general terms, a regulatory authority must exercise its regulatory functions in a way that is compatible with the regulatory objectives and in a way that it considers most appropriate to meet those objectives. Later provisions in the Act deal with what happens where a regulator does not exercise its regulatory functions in such a way.
26.The regulatory authorities to which these objectives apply are set out in section 3(5). These are the Court of Session, the Lord President, the Commission, the Scottish Solicitors’ Discipline Tribunal, and category 1 and category 2 regulators (which include those bodies, such as the Law Society and the Faculty that directly regulate legal services providers). It also includes approved regulators of licensed providers under Part 2 of the 2010 Act.
Professional principles
Section 4 – Professional principles
27.This section sets out high-level principles for any person who is providing legal services.
28.The practice rules of authorised legal businesses (see Part 2) must include a rule requiring these entities to adhere to them and section 50 of the 2010 Act requires licensed providers to do so. In addition, the Law Society and the Faculty, as the main regulators of individual legal services providers, will need to promote and maintain adherence by those they regulate with these principles as part of their own regulatory schemes (as this forms part of the regulatory objectives). In each case, non-compliance could have consequences for the legal services provider’s continued authorisation to provide legal services.
Meaning of key expressions
Section 5 – Meaning of “legal services” and “legal services provider”
29.This section defines, for the purposes of the Act, what is meant by the expressions “legal services” and “legal services providers”.
30.The definition of legal services is intended to be broad and describes a range of legal activities, many of which are capable of being provided by people or bodies who are not qualified as solicitors or advocates (section 32 of the 1980 Act limits the drawing or preparation of certain documents to solicitors and other legal professionals). The definition is the same as that used in the 2010 Act.
31.For the purposes of the Act, a legal services provider is defined as being a person or body that provides legal services (whether or not directly to the public and whether or not those services are regulated). This therefore includes solicitors and advocates as well as in-house lawyers, paralegals, conveyancing practitioners etc. It also includes bodies providing legal services such as traditional legal partnerships, other forms of legal business and licensed legal services providers.
32.People who provide legal services but are not regulated are also covered by this definition. This therefore extends the scope of legal regulation beyond the traditional practitioners. This is particularly relevant in the context of services complaints, but it is also important for the changes made in respect of new regulators of legal services where it provides a route for people other than solicitors and advocates to provide regulated legal services.
Section 6 – Meaning of regulatory functions
33.This section defines, for the purposes of the Act, what is meant by a reference to the regulatory functions of a regulatory authority. This definition is used in several places in the Act and is of particular importance in situations where an organisation, such as the Law Society, has both regulatory and representative functions. In those circumstances, the Act requires the organisation to discharge its regulatory functions independently of its representative ones and put in place appropriate structures to support that.
These are the principles set out at section 6(3)(a) of the Regulatory Reform (Scotland) Act 2014.
