Solicitors (Scotland) Act 1980

Changes over time for: Section 53

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Solicitors (Scotland) Act 1980, Section 53 is up to date with all changes known to be in force on or before 16 April 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.

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Whole provisions yet to be inserted into this Act (including any effects on those provisions):

s. 12A(2)(ba) inserted by 2010 asp 16 s. 118(3)
s. 32(1)(d) and word inserted by 2010 asp 16 s. 118(2)(a)(i)
s. 32(2D) inserted by 2010 asp 16 s. 118(2)(a)(iv)
Sch. 4 para. 1A(b)(iia) inserted by 2010 asp 16 s. 118(2)(b)

53 Powers of Tribunal.S

(1)Subject to the other provisions of this Part, the powers exercisable by the Tribunal under subsection (2) shall be exercisable if—

(a)after holding an inquiry into a complaint against a solicitor the Tribunal is satisfied that he has been guilty of professional misconduct, or

(b)a solicitor has (whether before or after enrolment as a solicitor), been convicted by any court of an act involving dishonesty [F1(other than a conviction for an economic crime offence)] or has [F2(other than in relation to a conviction for an economic crime offence)] been [F3fined 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] [F4, or

[F5(ba)a solicitor has (whether before or after enrolment as a solicitor) been convicted by any court of an economic crime offence, or]

(c)an incorporated practice has been convicted by any court of an offence [F6(other than a conviction for an economic crime offence)], which conviction the Tribunal is satisfied renders it unsuitable to continue to be recognised under section 34(1A); or

[F7(ca)an incorporated practice has been convicted by any court of an economic crime offence, which conviction the Tribunal is satisfied renders it unsuitable to continue to be recognised under section 34(1A), or]

(d)after holding an inquiry into a complaint, the Tribunal is satisfied that an incorporated practice has failed to comply with any provision of this Act or of rules made under this Act applicable to it.]

(2)Subject to subsection (1), the Tribunal may—

(a)order that the name of the solicitor be struck off the roll; F8...

[F9(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)order that the solicitor be suspended from practice as a solicitor for such time as it may determine; F8...

[F10(ba)order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;]

[F11(bb)where the solicitor has been guilty of professional misconduct, and where the Tribunal consider that the complainer has been directly affected by the misconduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as the Tribunal may specify to the complainer for loss, inconvenience or distress resulting from the misconduct;]

[F12(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;]

(c)subject to subsection [F13(3ZA)], impose on the solicitor [F14or, as the case may be, the incorporated practice] a fine not exceeding [F15£10,000]; F8...

[F16(ca)where the Tribunal is proceeding on the ground in subsection (1)(ba) or (1)(ca), or where subsection (2A) or (2B) applies, impose on the solicitor or, as the case may be, the incorporated practice, a fine of any amount];

(d)censure the solicitor [F14or, as the case may be, the incorporated practice]; F8...

(e)impose such fine and censure him [F14or, as the case may be, it]F8[F17...

(f)order that the recognition under section 34(1A) of the incorporated practice be revoked][F18; or

(g)order that an investment business certificate issued to a solicitor, a firm of solicitors or an incorporated practice be—

(i)suspended for such time as they may determine; or

(ii)subject to such terms and conditions as it may direct; or

(iii)revoked.]

[F19(2A)This subsection applies where the Tribunal is proceeding on the ground referred to in subsection (1)(a) and—

(a)the solicitor has, in relation to the subject matter of the Tribunal’s inquiry, been convicted by any court of an economic crime offence, or

(b)the misconduct referred to in subsection (1)(a) consisted of an act or omission which had the effect of inhibiting the prevention or detection of an economic crime offence.

(2B)This subsection applies where the Tribunal is proceeding on the ground referred to in subsection (1)(d) and the incorporated practice has—

(a)in relation to the subject matter of the Tribunal’s inquiry, been convicted by any court of an economic crime offence, or

(b)failed to comply with a provision or rule as referred to in subsection (1)(d) and—

(i)the failure consisted of an act or omission which had the effect of inhibiting the prevention or detection of an economic crime offence, or

(ii)the provision or rule applies only for purposes relating to the prevention or detection of an economic crime offence.]

(3)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F21(3ZA)The Tribunal shall not impose a fine under subsection (2)(c)—

(a)where the Tribunal is proceeding on the ground referred to in subsection (1)(a) and the solicitor, in relation to the subject matter of the Tribunal's inquiry, has been convicted by any court of an act involving dishonesty [F22(not being an economic crime offence)] and sentenced to a term of imprisonment of not less than 2 years;

(b)where the Tribunal is proceeding on the ground referred to in subsection (1)(b) [F23, (1)(ba) or (1)(ca)]];

[F24(c)where subsection (2A) or (3A) applies.]

[F25(3A)The powers conferred by [F26subsection (2)(bb) to (e)] may be exercised by the Tribunal—

(a)in relation to a former solicitor, notwithstanding that his name has been struck off the roll or that he has, since the date of the misconduct, conviction or sentence referred to in subsection [F27(1)(a) or (b)] [F27(1)(a), (b) or (ba)], ceased to practise as a solicitor or been suspended from practice;

(b)in relation to a body corporate which was formerly an incorporated practice, notwithstanding that the body has, since the date of the conviction or failure referred to in subsection [F28(1)(c) or (d)] [F28(1)(c), (ca) or (d)], ceased to be recognised as an incorporated practice by virtue of section 34(1A).]

[F29(3B)The power conferred by subsection (2)(ba) may be exercised by the Tribunal either independently of, or in conjunction with, any other power conferred by that subsection.]

(4)Any fine imposed by the Tribunal under subsection (2) shall be forfeit to Her Majesty.

(5)Where the Tribunal have exercised the power conferred by subsection (2) to censure, or impose a fine on, a solicitor, or both to censure and impose a fine, the Tribunal may order that the solicitor’s practising certificate shall be subject to such terms and conditions as the Tribunal may direct; and the Council shall give effect to any such order of the Tribunal.

(6)Where the Tribunal order that the name of a solicitor be struck off the roll, or that the solicitor be suspended from practice as a solicitor [F30or that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked], the Tribunal may direct that the order shall take effect on the date on which it is intimated to the solicitor; and if any such direction is given the order shall take effect accordingly.

[F31(6A)Where the Tribunal order that the recognition under section 34(1A) of an incorporated practice be revoked, the Tribunal shall direct that the order shall take effect on such date as the Tribunal specifies, being a date not earlier than 60 days after its order is intimated to the incorporated practice, and such an order shall take effect accordingly.]

[F32(6B)Where the Tribunal make an order under subsection (2)(g), they may direct that the order shall take effect on the date on which it is intimated to the solicitor, firm or incorporated practice; and if any such direction is given the order shall take effect accordingly.

(6C)The Council shall give effect to any order of the Tribunal under subsection (2)(g).]

(7)Where in relation to any such order as is mentioned in subsection (6) [F33,(6A) or (6B)] the Tribunal give a direction under [F34subsection (6) or, as the case may be, subsection (6A)][F35or (6B)], and an appeal against the order is taken to the Court under section 54, the order shall continue to have effect pending the determination or abandonment of the appeal unless, on an application under subsection (2) of section 54, the Court, otherwise directs.

[F36(7A) In subsection (2)(g), section 53D(1) and paragraph 16(h) of Schedule 4, “ investment business certificate ” means a certificate issued by the Council under Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988. ]

[F37(7B)A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.]

[F38(7C)The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend paragraph (bb) [F39or (bc)] of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as they consider appropriate.

(7D)A statutory instrument containing an order under subsection (7C) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.]

[F40(8)The Secretary of State may, by order made by statutory instrument subject to annullment in pursuance of a resolution of either House of Parliament, amend [F41—

(a)] paragraph ( c ) of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as appears to him to be justified by a change in the value of money.

[F42(b) the definition of “ investment business certificate ” in subsection (7A) by substituting for the reference to Rule 2.2 of the Solicitors (Scotland) (Conduct of Investment Business) Practice Rules 1988, or such reference replacing that reference as may for the time being be specified in that subsection, a reference to such Practice Rule as may from time to time replace Rule 2.2. ]]

[F43(9) In subsection (2)(bb) [F44and (bc)] , “ complainer ” has the same meaning as in section 42ZA. ]

[F45(9A)In this section, an economic crime offence means an economic crime within the meaning given by section 193(1) of the Economic Crime and Corporate Transparency Act 2023.]

[F46(10)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F1Words in s. 53(1)(b) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 208(2)(a)(i), 219(1)(2)(b) (with s. 208(8))

F2Words in s. 53(1)(b) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 208(2)(a)(ii), 219(1)(2)(b) (with s. 208(8))

F3Words in s. 53(1)(b) substituted (1.5.2011) by Legal Services (Scotland) Act 2010 (asp 16), ss. 139(1)(a), 150(2); S.S.I. 2011/180, art. 4(a)

F4S. 53(1)(c)(d) inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 76:2), s. 56, Sch. 1 Pt. 1 para. 28(a)

F5S. 53(1)(ba) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 208(2)(b), 219(1)(2)(b) (with s. 208(8))

F6Words in s. 53(1)(c) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 208(2)(c), 219(1)(2)(b) (with s. 208(8))

F7S. 53(1)(ca) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 208(2)(d), 219(1)(2)(b) (with s. 208(8))

F8Word in s. 53(2) repealed (1.5.2011) by Legal Services (Scotland) Act 2010 (asp 16), ss. 136(2)(b), 150(2); S.S.I. 2011/180, art. 4(a)

F9 S. 53(2)(aa) inserted (1.5.2011) by Legal Services (Scotland) Act 2010 (asp 16), ss. 136(2)(a), 150(2); S.S.I. 2011/180, art. 4(a)