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The Legal Profession and Legal Aid (Scotland) Act 2007 (Transitional, Savings and Consequential Provisions) Order 2008

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Citation, commencement and interpretation

1.—(1) This Order may be cited as the Legal Profession and Legal Aid (Scotland) Act 2007 (Transitional, Savings and Consequential Provisions) Order 2008 and comes into force on 1st October 2008.

(2) In this Order–

  • “relevant complaint” has the meaning given in article 3(3);

  • “the 1980 Act” means the Solicitors (Scotland) Act 1980(1);

  • “the 1990 Act” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(2);

  • “the ombudsman” means the Scottish legal services ombudsman.

Section 33 of the 1990 Act

2.—(1) Paragraph (2) applies despite the repeal of section 33 of the 1990 Act by virtue of sections 195(5) and 210 of, and paragraph 2 of Schedule 20 and Schedule 23 to, the Legal Services Act 2007(3).

(2) Subject to paragraph (3), section 33 of the 1990 Act continues to have effect as it had effect immediately before 1st October 2008 where–

(a)in relation to a complaint that a practitioner has been guilty of professional misconduct, the conduct giving rise to the complaint first occurred before 1st October 2008;

(b)in relation to a complaint that a practitioner has provided inadequate professional services, those services have been provided in connection with a matter in which the practitioner was first instructed before 1st October 2008;

(c)in relation to a complaint that a practitioner has been guilty of professional misconduct and has provided inadequate professional services, those services have been provided in connection with a matter in which the practitioner was first instructed before 1st October 2008.

(3) This article has effect in relation to a complaint made before 1st October 2010.

The 1990 Act: the ombudsman

3.—(1) Subject to paragraph (2), the following provisions of the 1990 Act are repealed–

(a)section 34 (Scottish legal services ombudsman);

(b)section 34A (ombudsman’s final report and recommendations);

(c)section 34B (advisory functions of ombudsman); and

(d)Schedule 3 (Scottish legal services ombudsman).

(2) Despite their repeal by virtue of paragraph (1), sections 34, 34A and 34B of, and paragraph 6 of Schedule 3 to, the 1990 Act continue to have effect in relation to a relevant complaint subject to the following modifications–

(a)references to the Scottish legal services ombudsman are to be read as references to the Scottish Legal Complaints Commission; and cognate expressions are to be construed accordingly;

(b)in section 34, omit subsections (1) and (9).

(3) A “relevant complaint” means–

(a)a complaint made to the ombudsman under section 34(1A) of the 1990 Act which has not completed the complaint process;

(b)a complaint made to the Commission under section 34(1A) (as modified by paragraph (2)) which relates to the manner in which a complaint, in relation to which article 2(2) has effect, has been dealt with by the professional organisation concerned.

(4) Anything (including legal proceedings) which, immediately before the ombudsman’s functions cease to be exercisable, is in the process of being done by or in relation to the ombudsman may, so far as it relates to a complaint mentioned in paragraph (3)(a), be continued by or in relation to the Commission.

(5) Anything done (or having effect as if done) by or in relation to the ombudsman for the purposes of or in connection with a complaint mentioned in paragraph (3)(a), if in force at the time immediately before the ombudsman’s functions cease to be exercisable, has effect as if done by or in relation to the Commission in so far as that is required for continuing its effect on or after that time.

The 1980 Act and 1990 Act

4.—(1) For the purposes of articles 2(2) and 3(2), any provision of the 1980 Act and the 1990 Act in force immediately before 1st October 2008 has effect and continues in force as it had effect at that time, so far as is necessary to give full effect to the complaint processes (including appeals and disciplinary proceedings) provided for under those Acts.

(2) For the purposes of any complaint which is made under the 1980 Act before 1st October 2008, any provision of that Act in force immediately before 1st October 2008 has effect and continues in force as it had effect at that time, so far as is necessary to give full effect to any complaint process (including appeals and disciplinary proceedings) provided for under that Act.

(3) Section 51(3)(f) of the 1980 Act (complaints to Tribunal)(4) is repealed.

Legal Profession and Legal Aid (Scotland) Act 2007

5.  In paragraph 16(1) of schedule 1 to the Legal Profession and Legal Aid (Scotland) Act 2007, reference to “the Commission’s functions” includes reference to the Commission’s functions in relation to a relevant complaint.

Access to records etc.

6.  The Commission has access to such records and other documents in the possession or control of the ombudsman as are necessary for the purpose of the Commission carrying out any of its functions.

The Scottish Legal Services Ombudsman (Compensation) (Prescribed Amount) Order 2002

7.—(1) Subject to paragraph (2), the Scottish Legal Services Ombudsman (Compensation) (Prescribed Amount) Order 2002(5) is revoked.

(2) Despite its revocation by virtue of paragraph (1), that Order continues to have effect in relation to a report made under section 34A of the 1990 Act, following the investigation of a relevant complaint.

KENNY MACASKILL

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

30th September 2008

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