Schedule 3 — Minor and Consequential Modifications of Enactments
Part 1 – Regulatory framework
285.This Part makes minor and consequential modifications of enactments in connection with regulatory objectives, professional principles and new regulators.
Regulatory objectives and professional principles
286.Paragraphs 1 and 2 make changes to the 2007 Act and the 2010 Act respectively in consequence of the new regulatory objectives and professional principles introduced by Part 1 of the Act. It defines each expression for the purposes of those Acts so that it has the same meaning as in Part 1 of the Act. Some related provisions of the 2010 Act are also repealed or revised in consequence of Part 1, in particular, section 77 (which requires approved regulators to adopt best regulatory practice, including acting in a way that is both compatible with, and which they consider is the most appropriate for meeting, the regulatory objectives) and section 78 (which requires approved regulators to prepare and issue a statement of policy as to how they will comply with their duties under section 77 when exercising their functions under this Part) are repealed.
New regulators
287.Paragraph 3 amends section 32 (offence for unqualified persons to prepare certain documents) and paragraph 1A in Part 1 of schedule 4 (constitution, procedure and powers of the Tribunal) of the 1980 Act. The change to section 32 ensures that the offence in this section does not apply to a person exercising a right to provide legal services acquired under Chapter 3 of Part 1 of this Act, and the changes to paragraph 1A ensures that the non-lawyer members of the Tribunal do not include such a person.
288.Paragraph 4 amends section 12A of the Legal Aid (Scotland) Act 1986 (register of advice organisations). It ensures that a person who has a right to provide legal services acquired by virtue of Chapter 3 of Part 1 of the Act may not be approved as an advisor by an advice organisation.
289.Paragraph 5 amends sections 48, 72, 73 and 149 and schedule 9 of the 2010 Act. The changes made to sections 48, 72, 73 and schedule 9 replace references to an individual practitioner with references to an authorised legal services provider, with the new references being defined, by virtue of the change made to section 149, as a person having a right to provide legal services acquired by virtue of Chapter 3 of Part 1 of the Act.
290.Paragraph 6 amends sections 95, 103 and 104 of the Courts Reform (Scotland) Act 2014. The change made to section 95 ensures that the meaning of “
291.Paragraph 7 amends section 36 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (power to regulate procedure etc.). This change makes it clear that the power conferred by that section includes the power to make provision for or about the representation of the procurator fiscal and participants in inquiry proceedings, including representation of participants by persons who do not have a right to provide legal services acquired by virtue of Chapter 3 of Part 1 of the Act.
292.Paragraph 8 amends the schedule of the Licensed Legal Services (Specification of Regulated Professions) (Scotland) Regulations 2012 (S.S.I. 2012/213), to reflect the name change of the ACA from the “Association of Commercial Attorneys” to the “Association of Construction Attorneys”.
Part 2 – Modification of the 1980 Act in relation to complaints
293.This Part modifies the Solicitors (Scotland) Act 1980 to make provision for conduct complaints and regulatory complaints, as a consequence of this Act.
Conduct complaints suggesting unsatisfactory professional conduct
294.Paragraph 9 amends the 1980 Act to make provision for conduct complaints remitted to the Council by section 6(2) of the 2007 Act (or treated as having been remitted to them under that section by virtue of section 33A(2) of that Act). The following paragraphs describe the changes made to the 1980 Act by paragraph 9.
295.Section 3A of the 1980 Act is amended to prevent conduct complaints remitted to the Council, or those treated as having been so remitted, from being determined by an individual.
296.Section 42ZA of the 1980 Act sets out the Council’s powers relating to conduct complaints suggesting unsatisfactory professional conduct. It has been amended to allow the Council (before it determines a conduct complaint) to propose a settlement to the solicitor and complainer, or to accept a proposal from a solicitor that it considers is fair and reasonable in the circumstances. If the settlement is accepted (by the solicitor or, as the case may be, the Council), then the Council must make a direction giving effect to it and may not determine the complaint unless the solicitor has failed to comply with the direction (or the direction is quashed on appeal).
297.Where a complaint is upheld, the Council may now provide that the censure is to have effect for a specified period (and must give reasons for doing so) and the Council may also impose conditions on the solicitor’s practising certificate (which may also be time-limited and the Council must give reasons for doing so).
298.The amendments also make provision for appeals as a result of the new decisions that can be made by the Council in section 42ZA. Section 42ZA has been adjusted to provide for the right of appeal to the Tribunal from decisions made by the Council relating to conduct complaints. Section 53ZB of the 1980 Act (which details the powers of the Tribunal on appeal, relating to unsatisfactory professional conduct) has been also adjusted to take account of the new appeals (for example the amendments allow the Tribunal to quash or confirm the decisions of the Council being appealed against) and also lists matters which the Tribunal may take into account in deciding whether to censure a solicitor for a specified period. And section 54A of the 1980 Act has been adjusted to enable an appeal to the Court of Session from those decisions of the Tribunal.
299.New section 53ZAA of the 1980 Act applies where the Tribunal has held an inquiry into a complaint of professional misconduct against a solicitor. If the Tribunal is not satisfied that the solicitor is guilty of professional misconduct, it is open for the Tribunal to instead make a finding of unsatisfactory professional conduct under new section 53ZAA(1). Where it does so, the Tribunal must censure the solicitor (and the censure may be for a specified period) and may direct the solicitor to undertake further education or training, may fine the solicitor or may order that the solicitor’s practising certificate is subject to conditions (and those conditions may be for a specified period). New section 53ZAA(7) lists matters which the Tribunal may take into account when deciding whether to censure a solicitor for a specified period. Where a censure or conditions are imposed for a specified period, the Tribunal must give its reasons for doing so. Section 54A of the 1980 Act has been amended to enable an appeal to the Court of Session from a direction or order made by the Tribunal under section 53ZAA.
Regulatory complaints
300.Paragraph 10 amends the 1980 Act to make provision for regulatory complaints remitted to the Council by section 7A(2) of the 2007 Act (or treated as having been remitted to them under that section by virtue of section 33B(2) of that Act). The following paragraphs describe the changes made to the 1980 Act by paragraph 10.
301.As “regulatory complaints” are a new concept in the 1980 Act, section 65 of that Act is amended to include a definition in accordance with the 2007 Act. Section 3A of the 1980 Act is amended to prevent regulatory complaints remitted to the Council, or those treated as having been so remitted, from being determined by an individual.
302.New section 42E has been inserted into the 1980 Act. It introduces powers relating to regulatory complaints into that Act. Regulatory complaints are determined under section 52A of the 2007 Act. However, before they are determined, section 42E(1) of the 1980 Act enables the Council to propose a settlement to the authorised legal business or licensed provider and complainer, or to accept a proposal from an authorised legal business or licensed provider that it considers is fair and reasonable in the circumstances. If the settlement is accepted, then the Council must make a direction giving effect to it and may not determine the complaint unless the authorised legal business or licensed provider has failed to comply with the direction (or the direction is quashed on appeal).
303.Where a regulatory complaint is upheld, the Council must censure the authorised legal business or licensed provider and may provide that the censure is to have effect for a specified period (and must give reasons for doing so in a report). The Council may also require the solicitor of the authorised legal business or licensed provider to undertake further education or training, impose a fine, impose conditions on the solicitor’s practising certificate (which may also be time-limited and the Council must give reasons for doing so), order that the authorisation of a legal business is subject to conditions or impose any other sanction permitted by the regulatory scheme of the Council.
304.The amendments also make provision for appeals as a result of the new decisions that can be made by the Council in the new section 42E. Section 42E(7) enables an authorised legal business or licensed provider to appeal to the Tribunal, and section 42E(8) enables a complainer to appeal to the Tribunal. New section 53ZE provides for the powers of the Tribunal in relation to these appeals. The Tribunal may quash or confirm various decisions of the Council and, among other things, make other orders such as ordering that the practising certificate of the solicitor is subject to conditions, the authorisation of a legal business is withdrawn or subject to conditions, or may impose a fine.
305.Section 51(1A) of the 1980 Act is amended to enable the Council to make a regulatory complaint to the Tribunal under section 51(1). New section 51A of the 1980 Act requires the Council to make rules as to the procedure for determining whether or not to make a regulatory complaint to the Tribunal. Before making any rules, the Council must consult the Tribunal, and the proposed rules must be approved by the Lord President in order to have effect.
306.New section 53ZD of the 1980 Act requires the Tribunal to determine a regulatory complaint made to it by the Council under section 51(1). Where the complaint is upheld, the Tribunal must censure the solicitor of the authorised legal business or licensed provider. The censure may be time-limited, and the Tribunal must give reasons for doing so. The Tribunal may also require the solicitor of the authorised legal business or licensed provider to undertake further education or training, impose a fine, impose conditions on the solicitor’s practising certificate (which may also be time-limited and the Council must give reasons for doing so), order that the recognition under section 34(1A) of the incorporated practice is revoked, order that the authorisation of a legal business is withdrawn or is subject to conditions, or impose any other sanction permitted by the regulatory scheme of the Council.
307.The amendments also provide for appeals to the Court of Session. New section 54B of the 1980 Act contains the right of appeal by an authorised legal business or licensed provider from a decision of the Tribunal to the Court of Session. And new section 55B contains the powers of the Court in these appeals. For example, the Court may confirm or quash a determination or decision. It may, among other things, impose a fine, order that the practising certificate of a solicitor is to be subject to conditions, order that the recognition under section 34(1A) of the incorporated practice is revoked, order that the authorisation of a legal business is withdrawn or is to be subject to conditions or impose any other sanction permitted by the regulatory scheme of the Council.
308.New section 62B of the 1980 Act enables the Scottish Ministers to make regulations to amend sections 42E, 53ZE, 54B and 55B to disapply those sections with respect to licensed providers (or reapply those sections if they have been previously disapplied). Such regulations are subject to the negative procedure.(8)
309.Schedule 4 of the 1980 Act is amended to allow the Tribunal to dismiss a regulatory complaint
without requiring an authorised legal business to answer the allegations made against it or without holding an inquiry where the Tribunal is of the opinion that the complaint discloses no prima facie case of failure on the part of the authorised legal business to comply with the practice rules or the terms of its authorisation, or where the complainer fails to comply with any rule under section 52 of the 1980 Act, or
without hearing parties if, after considering the complaint and other documents, the Tribunal forms the opinion that they disclose no case of failure on the part of the authorised legal business to comply with the practice rules or the terms of its authorisation.
310.Similar provision is provided with respect to a regulatory complaint made against a licensed provider.
Procedure relating to complaints
311.Paragraph 11 amends the 1980 Act to require the Council to make rules about the procedure relating to conduct complaints and regulatory complaints. The Lord President must approve the rules.
Publication of decisions
312.Paragraph 12 amends schedule 4 of the 1980 Act to require the Tribunal to publish certain decisions relating to conduct complaints and regulatory complaints (for example a decision under section 53(1)(a) relating to a conduct complaint suggesting professional misconduct). However, the publication of information that could or would identify a person to whom the complaint relates (other than the solicitor against who the complaint was made) is not permitted unless the Tribunal considers it is in the public interest to do so and the person consents to the publication of the information.
Other modifications
313.Paragraph 13 amends the 1980 Act to introduce a duty on the Council to consult the Commission before making any rules about professional practice, conduct and discipline relating to complaints against a member of the Society or authorised legal businesses.
Part 3 – Modification of other enactments in relation to complaints
Legal Aid (Scotland) Act 1986
314.Paragraph 14 amends section 34 of the Legal Aid (Scotland) Act 1986 in consequence of changes made to the 2007 Act by Part 3 of the Act.
Law Reform (Miscellaneous Provisions) (Scotland) Act 1990
315.Paragraph 15 amends the 1990 Act in consequence of changes made to the 2007 Act by Part 3 of the Act. The amendments also mirror changes made to the 1980 Act relating to conduct complaints. Section 20ZB of that Act is amended to enable the Council to propose a settlement regarding a complaint to the practitioner and complainer, or to accept a proposal from a practitioner that the Council considers is fair and reasonable in the circumstances. If the settlement is accepted, then the Council must make a direction giving effect to it and may not determine the complaint unless the practitioner has failed to comply with the direction (or the direction is quashed on appeal). The amendments also provide that where the Council censures a practitioner, the censure may be for a specified period and the Council must give its reasons for doing so when intimating the censure. The amendment also provides for appeals to the Tribunal and the powers of the Tribunal in those appeals.
316.New section 20ZF of the 1990 Act provides that the rules made by the Council under section 42D(1)(a) to (d) of the 1980 Act apply in relation to the 1990 Act.
Legal Profession and Legal Aid (Scotland) Act 2007
317.Paragraph 16 amends the 2007 Act in consequence of other provisions of the Act.
Legal Services (Scotland) Act 2010
318.Section 19(1) of the 2010 Act allows for the imposition of a financial penalty. Paragraph 17 amends that section to enable the withdrawal of the imposition of a financial penalty. It also enables the Scottish Ministers to, by regulations (and only with the agreement of the Lord President), specify the maximum amount of financial penalty that may be imposed. Before making regulations, the Scottish Ministers must consult each approved regulator and any other person or body they consider appropriate.
319.Paragraph 17 also amends section 121 of the 2010 Act (professional rules) to ensure that the Faculty consults the Commission before making any rules which relate to complaints against advocates. It also makes other minor amendments to the 2010 Act in consequence of other provisions of the Act.
Part 4 – Miscellaneous modifications of the 1980 Act etc.
320.This Part makes miscellaneous amendments to the 1980 Act and 1990 Act.
The roll and other registers
321.Paragraph 18 amends the provisions of the 1980 Act relating to the Council’s function of being the registrar of solicitors and the requirement to keep a roll of solicitors at their secretary’s office. The paragraph amends sections 7, 12A, 13, 24A, 60A and paragraphs 18 and 18A of schedule 4 of that Act to require the roll and registers to be available to members of the public, free of charge, by such electronic means as is considered appropriate. Sections 8 and 12B are amended to require enrolled solicitors and registered European lawyers, respectively, to provide contact details to the Council in the first instance and to inform the Council of any changes to these details. Schedule 2 is amended to enable the Council to remove a solicitor’s name from the roll where the solicitor has failed to comply with a training contract, and to enable the Council to contact the solicitor by means other than by writing.
322.Paragraph 19 amends sections 17 and 18 of the 1990 Act to require the registers of conveyancing and executry practitioners to be available to and searchable by members of the public, free of charge, by such electronic means as the Council consider appropriate, and also to enable a conveyancing practitioner who has been removed from the register to have their name restored to it.
Restoration of name to roll and registers: appeals
323.Paragraph 20 amends section 10 and schedule 4 of the 1980 Act. Where the Council decides not to restore a solicitor’s name to the roll, the solicitor may appeal to the Tribunal within 21 days of the intimation of that decision. Where the Tribunal decides not to restore a solicitor’s name to the roll, the solicitor to appeal the decision to the Court of Session. The appeal must be made before the expiry of the period of 21 days beginning with the day on which the Tribunal’s decision is intimated to the solicitor. During the appeal the Court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the Court and as to any order by the Tribunal relating to expenses.
324.Paragraphs 21 and 22 make a similar amendment for registered European lawyers and registered foreign lawyers.
Restoration of name to roll and registers: expenses
325.Paragraph 23 amends schedule 4 of the 1980 Act to enable the Tribunal to make an order in relation to expenses incurred for an application under sections 10(1), 12D(1) and 60A(4D).
Practising certificates and registration certificates
326.Paragraph 24 amends the 1980 Act in relation to practising certificates. It amends section 15 of the 1980 Act to allow the Council, where it has issued a practising certificate subject to conditions, to vary, remove or impose further conditions. It may do so at the request of the solicitor to whom the practising certificate is issued, or on its own initiative. Before doing so, the Council must notify the solicitor of their intention to do so and give the solicitor 14 days to make representations. The Council must take those representations into account when exercising the power. It also provides that failure of a solicitor to comply with a condition of their practising certificate may be treated as professional misconduct or unsatisfactory professional conduct.
327.Paragraph 24 also inserts new section 15A into the 1980 Act with the effect that, except where section 15 has effect, the Council may vary, remove and impose further conditions on the practising certificate both at the point at which the certificate is issued, or at any other time where the Council consider it necessary to do so in the public interest or for the protection of the public. Section 16 is amended to enable a solicitor to appeal to the Court of Session within 14 days of being notified of the decision to vary, remove or impose conditions on their practising certificate under section 15 or 15A.
328.Paragraph 24 also amends section 18 of the 1980 Act with respect to the suspension of solicitors. The amendment enables the Council to suspend from practice a solicitor if the Council considers it is necessary to do so in the public interest or for the protection of the public. Where it intends to do so in the public interest, the Council must notify the solicitor of its intention and give the solicitor 14 days to make representations (and must take those into account when making its decision).
329.Paragraph 25 makes similar amendment with respect to the registration certificates of registered European lawyers and the suspension of registered European lawyers.
Powers where excessive fees etc. charged
330.Paragraph 26 amends the 1980 Act to enable the Council to, on their own initiative, terminate the suspension of a solicitor where that solicitor was suspended for charging excessive fees. Where it does so, the Council must notify the solicitor of its decision and the reasons for the decision and restore the solicitor’s practising certificate (and may impose conditions on the certificate). In addition to this, when the Council is satisfied that the solicitor or incorporated practice has met certain requirements (i.e. submitting the account and all documents to the Auditor of the Court of Session for taxation and refunding the client), it must terminate the suspension and restore their practising certificate (and may impose conditions on the certificate).
Powers where failure to comply with rules
331.Paragraph 27 amends the 1980 Act to enable the Council to, on their own initiative, terminate the suspension of a solicitor where that solicitor was suspended for failing to comply with accounts rules. Where it does so, the Council must notify the solicitor of its decision and the reasons for the decision and restore the solicitor’s practising certificate (and may impose conditions on the certificate).
332.In addition to this, the Council may terminate the suspension of a solicitor on the basis that they are satisfied that the solicitor (or authorised legal business) is willing and able to comply with the applicable provisions. If it does so, the Council must specify the period within which the solicitor is to comply with those provisions and the solicitor must notify the Council of its compliance. If the solicitor fails to comply within the specified period, the Council may withdraw the practising certificate of the solicitor (or a solicitor who is a member of the authorised legal business) and may suspend the solicitor from practice.
Previous findings of record
333.Paragraph 28 amends the 1980 Act to allow the Law Society to rely on a previous conviction being fact when investigating a disciplinary matter. Where the Council have made a finding based upon a conviction that was subsequently quashed, the person who was convicted may apply to the Council to have the finding revoked.
The Client Protection Fund
334.Paragraph 29 amends the 1980 Act to reflect the change of the name of the Scottish Solicitors’ Guarantee Fund to the “Client Protection Fund”. Paragraphs 30 and 31 make similar amendments to the 2007 Act and 2010 Act, respectively.
Investment business certificates
335.Paragraph 32 amends the 1980 Act to replace references to “an investment business certificate” with “a licence to carry on incidental financial business”. This updates the terminology to reflect current convention and also enables future statutory instruments to update the term.
Appeal from decisions of Tribunal
336.Paragraph 33 contains amendments relating to appeals from decisions of the Tribunal. Sub-paragraph (1) amends section 54 the 1980 Act in consequence of other provisions of the Act. It provides that section 43 of the Act does not apply in relation to an appeal under section 54(1B)(c). Section 43(9) of the Act provides for an appeal by an applicant for authorisation under rules pursuant to section 42, or by an authorised legal business against a relevant authorisation decision, which is defined to mean a decision taken under authorisation rules to refuse an application for authorisation of a legal business, to impose, vary or revoke conditions or restrictions in relation to the authorisation, or to suspend or withdraw an authorisation. The amendment in sub-paragraph (1) disapplies section 43 from section 54 of the 1980 Act because there is already an appeal route for those types of decisions.
337.Sub-paragraphs (3) and (4) amend section 54 of the 1980 Act to enable the Council to appeal (in additional to the existing appeal grounds) a finding by the Tribunal that a solicitor is not guilty of professional misconduct or a decision made under section 53(2), (5) or (5A).
Constitution of Tribunal
338.Paragraph 34 amends schedule 4 of the 1980 Act in relation to the constitution of the Tribunal. It requires the Lord President to consult the Tribunal before appointing members to the Tribunal and requires each solicitor member to have in force a practising certificate when appointed. It also sets out the process for the termination of the appointment of a solicitor member from the Tribunal with the chair of the board being able to request the Lord President terminate the members appointment. It also allows the Chair or the board to appoint a vice chair who can carry out delegated functions.
Procedure of Tribunal
339.Paragraph 35 amends the 1980 Act to allow the Tribunal to arrange for any of their functions to be discharged on their behalf by one of their members other than an excepted function. Examples of an excepted function include a decision under section 53ZAA that a solicitor is guilty of unsatisfactory professional conduct rather than professional misconduct, or any of its appeal functions in relation to complaints suggesting unsatisfactory professional conduct or regulatory complaints.
Communicating and giving effect to Tribunal decisions
340.Paragraph 36 amends the 1980 Act to require a copy of every decision of the Tribunal certified by the clerk to be sent to the Commission. When the Council receives a copy of a decision, the Council must give effect to certain actions in the decision including striking a solicitor off the role, requiring the solicitor to undertake education or training, ordering that the practising certificate of a solicitor be subject to conditions, revoking the recognition of an incorporated practice under section 34(1A) or the withdrawal of (or imposition of conditions in relation to) an authorisation of a legal business.
Appeal against decision of Tribunal to dismiss before enquiry
341.Paragraph 37 amends the 1980 Act to insert new section 54C. That section enables the Council to appeal to the Court of Session against a decision of the Tribunal to dismiss a complaint against a solicitor, an authorised legal business or licensed provider, where the complaint was dismissed before an inquiry was held. The appeal must be made within 21 days of the intimation of the Tribunal’s decision to dismiss the inquiry.
342.Paragraph 24 of schedule 4 of the 1980 Act allows the Tribunal to dismiss an appeal without holding an inquiry if the Tribunal is of the opinion that the appeal is manifestly ill-founded or if the appellant fails to comply with any rule made under section 52 of that Act. The new section 54C allows the appellant to appeal to the Court of Session in circumstances where the appeal is dismissed under paragraph 24. The appeal to the Court must be made within 21 days of the Tribunal’s decision being intimated to the appellant.
Finality of decisions
343.Paragraph 38 amends the 1980 Act to make it clear that a decision of the Court of Session, in relation to certain appeals, is final. These appeals are:
an appeal under section 16(1) in relation to an application for a practising certificate,
an appeal under section 16(2) in relation to a decision of the Council under section 15 to refuse to issue a practising certificate, or to issue it subject to conditions, or to vary, remove or impose conditions on it,
an appeal under section 16(2A) in relation to a decision of the Council under section 15A to vary, remove or impose conditions on a practising certificate,
an appeal under section 19(8) in relation to a decision of the Council to refuse to terminate a suspension of a solicitor or to terminate it subject to conditions,
an appeal under section 24D(1) in relation to an application for a registration certificate,
an appeal under section 24D(2) in relation to a decision of the Council under section 24C to refuse to issue a registration certificate or to issue one subject to conditions, or to vary, remove or impose conditions,
an appeal under section 24D(2A) in relation to a decision of the Council under section 24C(3A) or section 24CA to vary, remove or impose conditions on a registration certificate issued to a registered European lawyer,
an appeal under section 24G(7) in relation to a decision of the Council to refuse to terminate the suspension of a registered European lawyer or to terminate it subject to conditions,
an appeal under section 47(3) or (4) in relation to a decision of the Council to give permission under subsection (1) of that section.
Other modifications
344.Paragraph 39 makes other minor amendments to the 1980 Act.
345.Sub-paragraphs (2) to (7) remove the requirement that certain matters are to be communicated specifically in writing. Those matters pertain to the suspension of a practising certificate or registration certificate.
346.Sub-paragraph (10) amends section 32 (offence for unqualified persons to prepare certain documents) so that the offence, insofar as it concerns an unqualified person who draws or prepares any writ relating to any action or proceedings in any court, does not apply to a person referred to in substituted paragraph (2B)(a) of that section.
347.Sub-paragraph (12) enables a body corporate to appeal to the Court of Session against a decision by the Council to refuse to recognise the body corporate as being suitable in terms of section 34(1A)(b).
348.Sub-paragraph (13) amends section 44 (professional indemnity) to adjust the meaning of an “authorised insurer” so that references to Part 4 of the Financial Services and Markets Act 2002 are substituted with references to Part 4A of that Act. These amendments are required in consequence of the insertion of Part 4A by the Financial Services Act 2012.
349.Sub-paragraph (15) amends section 61A (solicitors’ fees) so that subsection (1) of that section is without prejudice to sections 103(2)(j) and 104(2)(j) of the Courts Reform (Scotland) Act 2014.
350.Sub-paragraph (17) makes provision relating to individual culpability where the offence is committed by an organisation. Where an offence is committed by a “relevant organisation”, new section 63A of the 1980 Act provides that the relevant organisation and, in some cases, a “responsible official” or an individual purporting to act in such capacity in that organisation, are both to be held responsible. It ensures that those running legal entities who are responsible for the decisions leading to an offence can also be prosecuted for it.
351.Sub-paragraph (18) amends section 65 (interpretation) to insert definitions for a “category 1 regulator”, a “category 2 regulator” and “legal services”, with the same meanings as those accordingly provided by section 7 and section 5 of this Act.
Part 5 – Miscellaneous modifications of other enactmentsFreedom of information
352.Paragraph 40 inserts new paragraph 61D into schedule 1 of the Freedom of Information (Scotland) Act 2002. This change ensures that category 1 regulators (and for present purposes, the Law Society) are subject to the 2002 Act as respects the exercise of its regulatory functions.
Removal of special provision for confirmation agents and will writers etc.
353.Paragraphs 41 to 43 amend, respectively, the 2007 Act, the 2010 Act and the Enterprise and Regulatory Reform (Scotland) Act 2013. Paragraph 41 repeals a special provision for confirmation agents and will writers, and paragraphs 42 and 43 make consequential changes to the 2010 Act and the 2013 Act respectively to remove references relating to such agents and writers in other enactments.
Civil enforcement of certain offences
354.Paragraphs 44 and 45 and the 1980 Act and 2010 Act respectively clarify that the civil remedy of interdict may be sought with a view to preventing the carrying out of an act that is subject to criminal law penalties under those Acts.
Disclosure requirements in connection with new offences
355.Paragraphs 46 and 47 amend, respectively, schedule 1 of the Disclosure (Scotland) Act 2020 (“
See paragraph 114.
