203.This section amends section 19 of the 2010 Act (financial sanctions) to provide that where an approved regulator collects a financial penalty from one of its licensed providers, the approved regulator may retain a sum from the penalty (that is paid to the Scottish Ministers) or recover a sum from the licensed provider in relation to the regulator’s reasonable expenditure incurred in collecting the penalty.
204.The amendments also allow an approved regulator to discontinue its attempts to recover a penalty from one of its licensed providers or to reinstate its attempts that were previously discontinued in each case where the regulator considers it is reasonable to do so.
205.This section amends section 14 of the 2010 Act (licensing rules: general) to provide that licensing fees that may be charged by an approved regulator in relation to the issue or renewal of licences for its licensed providers may be different for different categories of licensed providers, different types of licence or different categories of legal services to be provided by the licensed provider under the licence.
206.This section amends section 47 of the 2010 Act (licensed providers) to remove a requirement that a business entity can only be a licensed legal services provider under Part 2 of the 2010 Act if it provides (or offers to provide) legal services for a fee, gain or reward. It means that a business entity that satisfies the other criteria in section 47 of the 2010 Act (including the criterion that it provides legal services under a licence issued by an approved regulator and in accordance with its licensing rules) will, for the purposes of Part 2 of the 2010 Act, be a licensed legal services provider, even if it does not provide (or offer to provide) such services for a fee, gain or reward. This will allow for third sector and community organisations to own and operate a licensed legal services provider.
207.This section ensures that a law centre is no longer barred from becoming a licensed legal services provider under Part 2 of the Legal Services (Scotland) Act 2010.
208.In this context, a “
established for the purpose of providing legal services to the public generally as well as to individual members of the public, and
which does not distribute any profits made either to its members or otherwise but reinvests any such profits for the purposes of the law centre.
209.This section repeals section 49 of the 2010 Act.
210.Before its repeal, that provision provided that an entity is eligible to be a licensed legal services provider under Part 2 of the 2010 Act if the qualifying investors (solicitor investors or investors who are members of another regulated profession) in the entity had (taken together) at least a 51% stake in the total ownership or control of the entity.
211.This section amends section 64 of the 2010 Act, which sets out matters relevant as respects a non-solicitor investor’s fitness. The amendment clarifies that only a significant ownership or control of the body is a relevant matter. What constitutes as “significant” is to be determined by the approved regulator.
212.Subsection (2) of this section ensures that section 26(1) of the 1980 Act (offence for solicitors to act as agents for unqualified persons) does not apply to a solicitor, registered foreign lawyer, or registered European lawyer pursuing professional activities within the meaning of the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000 who is employed full-time on a fixed salary by a body corporate, a law centre, a citizens advice body, or a charity.
213.Subsection (3) ensures that section 32(1)(b) of the 1980 Act (offence for unqualified persons to prepare certain documents) does not apply to a person who is, by virtue of an act of sederunt made under section 32 (power of Court of Session to regulate civil procedure in the sheriff court) of the Sheriff Courts (Scotland) Act 1971, permitted to represent a law centre, a citizens advice body or a charity.
214.Subsection (4) inserts a new section 33BA into the 1980 Act (privilege of law centres, citizens advice bodies and charities from disclosure etc.). The new section ensures that communications involving communication between a law centre, a citizens advice body or a charity and a client has the same protection from disclosure in legal proceedings as would such communications between a solicitor and a client.
215.Subsection (5) inserts a new section 33D into the 1980 Act (practice rules relating to law centres, citizens advice bodies and charities). The new section disapplies any rule made by the Law Society under section 34 of the 1980 Act (rules as to professional practice, conduct and discipline) that prohibits or unduly restricts (i) the involvement of solicitors (who are authorised to provide legal services) in or with, or employment of such solicitors by, law centres, citizens advice bodies or charities, or (ii) the provision of legal services by such organisations.
216.Subsection (6) inserts a definition for “charity” into section 65(1) of the 1980 Act, to mean a body entered in the Scottish Charity Register.
217.This section makes it an offence for a person who is not entered in a register maintained under section 16 or a licensed provider, to take or use the title of lawyer in connection with providing (or offering to provide) legal services to the public for a fee, gain or reward.
The offence does not apply to a person who provides (or offers to provide) such services in relation to the laws, rules, beliefs or practices of a religion, but only if the person makes it clear that the taking or using of the title relates to the provision of legal services in relation to those matters and not to the provision of legal services more generally. This ensures that a person who provides legal services in relation to a religious law, including the interaction between the religious law and secular law does not commit an offence under this section if the person satisfies this requirement. Where a person also provides a legal service that does not relate to a religious law, the offence will apply to the person in the same way as it would any other person (unless the person is entered in a register maintained under section 16 or is a licensed provider when the title is taken or used).
218.A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale (currently £2,500) (as at the date of Royal Assent to this Act).
219.This section makes it an offence for a person who is not entered in the register maintained by a category 1 or category 2 regulator to take or use a name, title (other than that of lawyer), addition or description implying that the person is regulated by the category 1 or category 2 regulator. The offence applies only if this is done in connection with providing (or offering to provide) legal services to the public for a fee, gain or reward.
220.A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale (currently £2,500) (as at the date of Royal Assent to this Act).
221.This section makes it an offence for a person who is not a member of the Faculty to, without reasonable excuse, take or use a name, title, addition or description implying that the person is a member of the Faculty or otherwise pretend to be a member of the Faculty. The offence does not require any connection with providing legal services. For the purpose of this offence, a person is a member of the Faculty if the person is entered in the register maintained by the Faculty under section 16.
222.A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale (currently £2,500) (as at the date of Royal Assent to this Act).
223.This section makes provision about the time limit for prosecution of offences under sections 31(1), 40(1), 90(1), 91(1) and 92(1). Proceedings must be commenced within 2 years of the commission of the offence (or in the case of a continuous contravention, after the last day on which the offence was committed) and within 6 months of the date on which the relevant evidence that the prosecutor believes sufficient to justify proceedings comes to the prosecutor’s knowledge. The effect of subsection (5) is that any such proceedings are to be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if the warrant is executed without undue delay.
224.This section inserts new section 32A into the 1980 Act. Section 32 of the 1980 Act provides that it is an offence for a person other than a solicitor or certain other legal professionals or public officials to prepare certain documents. The new section enables the Scottish Ministers to amend section 32 to make provision for or in connection with it being an offence for an unqualified person to draw or prepare certain documents or provide certain other legal services. The section title of section 32 is adjusted to reflect this broader scope.
225.Regulations may only be made at the request of the Lord President, the regulatory committee of a category 1 regulator, a category 1 regulator that has no functions other than regulatory ones, an approved regulator or the independent advisory panel established by the Commission. Before making a request, the requestor must consult each category 1 regulator (that has only regulatory functions) or its regulatory committee if it has one, each approved regulator, the panel mentioned in subsection (3)(e), and any other persons or bodies that the requester considers appropriate. Following consultation, the requesting body must (unless the requester is the Lord President) send the Lord President a document setting out an explanation of the change sought by the proposed exercise of the power, the reasons for seeking the change, and copies of any written representations received in response to the consultation. Subject to the Lord President’s approval, the requesting body must publish the documents relating to the consultation and request the Scottish Ministers make the required regulations (which are subject to the affirmative procedure).
226.This section allows the Lord President to make rules in connection with the exercise of the Lord President's functions under Parts 1 and 2. Before making new rules, the Lord President must consult the independent advisory panel of the Commission and each category 1 and category 2 regulator. The Lord President is to determine the manner in which the rules are to be published.
227.This section introduces Parts 4 and 5 of schedule 3, which make minor and consequential amendments.
228.This section requires the Scottish Ministers to undertake a review of the principal changes in relation to the regulation of legal services arising from this Act after around 10 years of commencement and to prepare a report on the review. The Scottish Ministers may delegate the carrying out of the review to another person who is considered appropriate. The Scottish Ministers (or the delegate) must consult regulators and consumers of legal services, the Commission and other persons considered appropriate in connection with the review. The report must be published by the Scottish Ministers and laid before the Scottish Parliament.