293.This Part modifies the Solicitors (Scotland) Act 1980 to make provision for conduct complaints and regulatory complaints, as a consequence of this Act.
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.
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.
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.
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.
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.