Legal Profession and Legal Aid (Scotland) Act (asp 5) which received Royal Assent on 19 January 2007 Explanatory Notes

1. Introduction

2. Summary and Background to the Act

3. Commentary on Sections

   1. Part 1 – the Scottish Legal Complaints Commission

      1. Section 1: The Scottish Legal Complaints Commission

      2. Section 2: Receipt of complaints: preliminary steps

      3. Section 3: Existence of specified regulatory scheme

      4. Section 4: Complaint not made timeously or made prematurely

      5. Section 5: Determining nature of complaint

      6. Section 6: Complaint determined to be conduct complaint

      7. Section 7: Services complaint: notice

      8. Section 8: local resolution or mediation

      9. Section 9: Services complaint: Commission’s duty to investigate and determine

      10. Section 10: Commission upholds services complaint

      11. Section 11: Fair and reasonable : matters to be taken into account by Commission

      12. Section 12: Services complaint: notice where not upheld or upheld

      13. Section 13: Services complaints: reports

      14. Section 14: Determination under section 9(1) or taking of steps under section 10(2): effect in relation to proceedings

      15. Section 15: Complaint appears during mediation or investigation to fall within different category

      16. Section 16: Power to monitor compliance with directions under section 10(2)

      17. Section 17: Power to examine documents and demand explanations in connection with conduct or services complaints

      18. Section 18: Power of the Commission to recover certain expenses

      19. Section 19: Documents and information from third parties

      20. Section 20: Enforcement of Commission direction under section 10(2)

      21. Section 21: Appeals

      22. Section 22: Appeals: supplementary provision

      23. Section 23: Handling by relevant professional organisations of conduct complaints: investigation by Commission

      24. Section 24: Investigation under section 23: final report and recommendations

      25. Section 25: Failure to comply with recommendation

      26. Section 26: Abolition of Scottish legal services ombudsman

      27. Section 27: Annual general levy

      28. Section 28: Complaints levy

      29. Section 29: Amount of levies and consultation

      30. Section 30: Grants or loans by the Scottish Ministers

      31. Section 31: Guarantees

      32. Section 32: Duty of Commission to make rules as to practice and procedure

      33. Section 33: Duty of relevant professional organisations to forward complaints to Commission

      34. Section 34: Commission’s duty to provide advice

      35. Section 35: Services complaints: monitoring, reports, protocols and information sharing

      36. Section 36: Conduct complaints: monitoring, reports, guidance and recommendations

      37. Section 37: Obtaining of information from relevant professional organisations

      38. Section 38: Efficient and effective working

      39. Section 39: Monitoring effectiveness of guarantee funds etc.

      40. Section 40: How practitioners deal with complaints: best practice notes

      41. Section 41: Power by regulations to amend duties and powers of Commission

      42. Section 42: Reports: privilege

      43. Section 43: Restriction upon disclosure of information: Commission

      44. Section 44: Exemption from liability in damages

      45. Section 45: Giving of notices etc. under Part 1

      46. Section 46: Interpretation of Part 1

   2. Part 2 – Conduct Complaints: Other Matters

      1. Section 47: Conduct complaints: duty of relevant professional organisations to investigate etc.

      2. Section 48: Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations

      3. Section 49: Conduct complaints: financial impropriety

      4. Section 50: Power of relevant professional organisations to recover certain expenses

      5. Section 51: Powers in relation to documents and information from third parties

      6. Section 52: Restriction upon disclosure of information: relevant professional organisations

      7. Section 53: Unsatisfactory professional conduct: solicitors

         1. Section 42ZA of the 1980 Act

         2. Section 42ZB of the 1980 Act

         3. Section 53ZA of the 1980 Act

         4. Section 53ZB of the 1980 Act

         5. Section 53ZC of the 1980 Act

         6. Section 54A of the 1980 Act

         7. Section 55A of the 1980 Act

      8. Section 54: Unsatisfactory professional conduct: conveyancing or executry practitioners etc.

         1. Section 20ZA of the 1990 Act

         2. Section 20ZB of the 1990 Act

         3. Section 20ZC

         4. Section 20B of the 1990 Act

         5. Section 20C of the 1990 Act

         6. Section 20D of the 1990 Act

         7. Section 20E of the 1990 Act

      9. Section 55: Report by Commission to Council under section 10(2)(e)

         1. Sections 42ZC of the 1980 Act and 20ZD of the 1990 Act

         2. Sections 42ZD of the 1980 Act and 20ZE of the 1990 Act

      10. Section 56: Powers to fine and award compensation for professional misconduct etc

      11. Section 57: Review of and appeal against decisions on remitted conduct complaints: cases other than unsatisfactory professional conduct

   3. Part 3 – Legal Profession: Other Matters

      1. Section 58: Constitution of Scottish Solicitors’ Discipline Tribunal

      2. Section 59: Scottish Solicitors Guarantee Fund: borrowing limit

      3. Section 60: Safeguarding interests of clients

      4. Section 61: Offence for unqualified persons to prepare certain documents

      5. Section 62: Notaries public to be practising solicitors

      6. Section 63: Regulation of notaries public

   4. Part 4 – Legal Aid

      1. Section 64: Criminal legal aid in solemn proceedings

      2. Section 65: Criminal legal aid: conditions and reviews

      3. Section 66: Criminal Legal Assistance Register: removal of name following failure to comply with code

      4. Section 67: Register of advice organisations: advice and assistance

      5. Section 68: Scottish Legal Aid Board: grants for certain purposes

      6. Section 69: Financial limit: advice and assistance

      7. Section 70: Further provision in relation to the Fund: advice and assistance

      8. Section 71: Availability of civil legal aid for defamation or verbal injury

      9. Section 72: Civil legal aid: conditions and reviews

      10. Section 73: Availability of legal aid: Judicial Committee of the Privy Council

      11. Section 74: Solicitors employed by the Scottish Legal Aid Board

      12. Section 75: Contributions, and payments out of property recovered

      13. Section 76: Regulations under section 36 of the 1986 Act

   5. Part 5 – General

      1. Section 77: Advice, services or activities to which Act does not apply

         1. Consumer credit activities

         2. Insolvency

         3. Financial Services - 1986 Act

         4. Immigration services

         5. Financial services - 2000 Act

      2. Section 78: Ancillary provision

      3. Section 79: Regulations or orders

   6. Schedule 1—The Scottish Legal Complaints Commission

   7. Schedule 2—Further powers of Commission under sections 17 or 37

   8. Schedule 3—Rules as to Commission’s practice and procedure

   9. Schedule 4: Further powers of relevant professional organisations under section 48

   10. Schedule 5—Minor and consequential modifications

4. Parliamentary History