Part 4

Miscellaneous

Financial sanctions

Financial sanctions
83
In section 19 (financial sanctions) of the 2010 Act, after subsection (3), insert—
3A
Where an approved regulator collects a financial penalty imposed on a licensed provider by virtue of this section, then that approved regulator may—
a
retain a sum to be deducted from the amount payable to the Scottish Ministers under subsection (3) in respect of any expenditure reasonably incurred by the approved regulator in collecting the penalty, or
b
recover from the licensed provider any expenditure reasonably incurred by it in doing so.
3B
At any time an approved regulator may discontinue collection of a financial penalty imposed by virtue of this section where the approved regulator considers it would not be reasonable in the circumstances for the approved regulator to attempt or continue to attempt collection.
3C
Subsection (3B) does not prevent the approved regulator, in circumstances where it has discontinued attempts to collect a financial penalty, from resuming such attempts where the approved regulator considers it is reasonable in the circumstances to do so.
.

Licensed legal services providers

Licensing rules: fees
84
In section 14 (licensing rules: general) of the 2010 Act, after subsection (2) insert—
2A
Rules made in pursuance of subsection (1)(e) may provide for the approved regulator to charge different fees in relation to different applications for the issue of a licence, or for the renewal of a licence, according to—
a
the category of licensed provider—
i
the applicant seeks to become, or (as the case may be)
ii
the licensed provider seeks to remain,
b
the category of licence to which the application relates,
c
the category of legal services (or any other services prescribed in regulations under section 12(5)) which the applicant seeks to provide (or to continue to provide) under licence.
.

Removal of requirement to act for fee, gain or reward
85
In section 47 (licensed providers) of the 2010 Act, in subsection (1), the following provisions are repealed—
a
sub-paragraph (ii) of paragraph (a), and
b
the “and” immediately following that sub-paragraph.

Eligibility criteria: law centres
86
In section 48 (eligibility criteria) of the 2010 Act, in subsection (4)—
a
after paragraph (a) insert “or”,
b
the “or” immediately following paragraph (b) is repealed,
c
paragraph (c) is repealed.

Majority ownership
87
Section 49 (majority ownership) of the 2010 Act is repealed.

Non-solicitor investors: factors as to fitness
88
In section 64 (factors as to fitness) of the 2010 Act—
a
in subsection (4)—
i
in the opening words, the words “(to any extent)” are repealed,
ii
in paragraph (a), before “ownership” insert “significant”,
b
after subsection (4) insert—
4A
For the purpose of subsection (4)(a), whether a person has significant ownership or control of the body is to be determined by the approved regulator.
.

Removal of certain practising restrictions

Removal of practising restrictions: law centres, citizens advice bodies and charities
89
1
The 1980 Act is amended as follows.
2
In section 26(2) (offence for solicitors to act as agents for unqualified persons), for “or a citizens advice body” substitute “, a citizens advice body or a charity”.
3
In section 32 (offence for unqualified persons to prepare certain documents), in subsection (2B) (as substituted by paragraph 39(10) of schedule 3), after paragraph (b) insert—
c
a law centre, a citizens advice body or a charity.
.
4
After section 33B, insert—

Privilege of law centres, citizens advice bodies and charities from disclosure etc.
33BA
1
Any communication made to or by a law centre, a citizens advice body or a charity in the course of its providing legal services to a client will in any legal proceedings be privileged from disclosure in like manner as if the law centre, citizens advice body or charity (as the case may be) had at all material times been a solicitor providing legal services to a client.
2
Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to professional privilege could be maintained, will, with any necessary modifications, have effect in relation to a law centre, a citizens advice body or a charity in the course of its providing legal services to a client as it has effect in relation to a solicitor.
3
This section is without prejudice to any other enactment or rule of law concerning professional or other privilege from disclosure (in particular, as applicable in relation to a solicitor).
.
5
After section 33C, insert—

Practice rules relating to law centres, citizens advice bodies and charities
33D
1
Subsection (2) applies to any rule made under section 34 that prohibits or unduly restricts the—
a
involvement of solicitors in or with, or employment of solicitors by, law centres, citizens advice bodies or charities, or
b
provision of legal services by law centres, citizens advice bodies or charities.
2
The rule is of no effect in so far as it does so (and for this purpose it is immaterial when the rule was made).
3
The reference in subsection (1)(a) to solicitors does not include a solicitor who is disqualified from practice by reason of having been—
a
struck off (or removed from) the roll, or
b
suspended from practice.
.
6
In section 65(1) (interpretation), at the appropriate place, insert—
- “charity” means a body entered in the Scottish Charity Register,
.

Offences relating to pretending to be a regulated provider of legal services

Offence of taking or using the title of lawyer
90
1
A person who is not entered in a register maintained under section 16 or, is not a licensed provider, commits an offence if the person—
a
takes or uses the title of lawyer, and
b
does so in connection with providing (or offering to provide) legal services to the public for fee, gain or reward.
2
Subsection (1) does not apply to a person who—
a
takes or uses the title of lawyer in connection with providing (or offering to provide) legal services in relation to a religious law, and
b
when doing so makes it clear that the person’s taking or using of the title of lawyer relates to the provision of legal services in relation to the religious law and not to the provision of legal services more generally.
3
In subsection (2), “religious law” means the law, rules, beliefs or practices of a religion.
4
A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Offence of pretending to be a regulated legal services provider
91
1
A person who is not entered in the register maintained by a category 1 or category 2 regulator under section 16 commits an offence if the person—
a
takes or uses a name, title, addition or description implying that the person is regulated by the category 1 or category 2 regulator, and
b
does so in connection with providing (or offering to provide) legal services to the public for fee, gain or reward.
2
In subsection (1), “title” does not include the title of lawyer.
3
A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Offence of pretending to be a member of Faculty of Advocates
92
1
A person who is not a member of the Faculty of Advocates commits an offence if the person without reasonable excuse—
a
takes or uses a name, title, addition or description implying that the person is a member of the Faculty of Advocates,
b
otherwise pretends to be a member of the Faculty of Advocates.
2
For the purpose of subsection (1), a person is a member of the Faculty of Advocates if the person is entered in the register maintained by the Faculty of Advocates under section 16.
3
A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Time limit for prosecution of offences
93
1
Proceedings for an offence under section 31(1), 40(1), 90(1), 91(1) or 92(1) may be commenced within the period of 6 months beginning with the day on which relevant evidence came to the prosecutor’s knowledge.
2
But no such proceedings may be commenced more than 2 years—
a
after the commission of the offence, or
b
in the case of a continuous contravention, after the last day on which the offence was committed.
3
In the case of a continuous contravention, the complaint may specify the entire period during which the offence was committed.
4
A certificate signed by or on behalf of a prosecutor stating the day on which relevant evidence came to the prosecutor’s knowledge is conclusive as to that fact (and such a certificate purporting to be so signed is to be regarded as being so signed unless the contrary is proved).
5
Section 136(3) of the Criminal Procedure (Scotland) Act 1995 applies for the purposes of this section as it applies for the purposes of that section.
6
In subsections (1) and (4), “relevant evidence” means evidence that the prosecutor believes is sufficient to justify the proceedings in question.

Power of the Scottish Ministers to adjust restricted legal services

Power of the Scottish Ministers to adjust restricted legal services
94
1
After section 32 of the 1980 Act (offence for unqualified person to prepare certain documents), insert—

Power to adjust what constitutes restricted legal services
32A
1
The Scottish Ministers may by regulations amend section 32 to make provision for or in connection with it being an offence for an unqualified person to—
a
draw or prepare certain documents, or
b
provide certain other legal services.
2
In particular, regulations under this section may—
a
add, amend or remove a description of—
i
a type of document that may not be drawn or prepared by an unqualified person without that person committing an offence,
ii
a type of legal service that may not be provided by an unqualified person without that person committing an offence,
b
add, amend or remove exemptions to the offence (including descriptions of persons to whom the offence does not apply) in relation to some or all of the documents or services that may not be drawn, prepared or, as the case may be, provided.
3
The Scottish Ministers may exercise the power to make regulations under subsection (1) only if they have received a request to exercise the power from—
a
the Lord President,
b
the regulatory committee of a category 1 regulator,
c
a category 1 regulator that has no functions other than regulatory functions,
d
an approved regulator within the meaning of Part 2 of the 2010 Act, or
e
the independent advisory panel established by the Commission under paragraph 11A of schedule 1 of the 2007 Act.
4
Before making a request under subsection (3), the person making the request (“the requester”) must—
a
consult—
i
the regulatory committee (if any) of each category 1 regulator,
ii
each category 1 regulator that has no functions other than regulatory functions,
iii
each approved regulator within the meaning of Part 2 of the 2010 Act,
iv
the panel mentioned in subsection (3)(e),
v
such other person or body as the requester considers appropriate,
b
except where the requester is the Lord President, secure the Lord President’s agreement to the making of the request.
5
But a body mentioned in subsection (4)(a)(i) to (iv) does not need to be consulted if the body is the requester.
6
For the purpose of seeking the Lord President’s agreement under subsection (4)(b), the requester must provide to the Lord President—
a
a document setting out—
i
an explanation of the change sought by the proposed exercise of the power, and
ii
the reasons for seeking the change,
b
copies of any written representations received in response to the consultation under subsection (4)(a).
7
A request under subsection (3) must include—
a
a document setting out—
i
an explanation of the change sought by the proposed exercise of the power, and
ii
the reasons for seeking the change,
b
copies of any written representations received in response to the consultation under subsection (4)(a), and
c
except where the requester is the Lord President, written confirmation of the Lord President’s agreement to the making of the request.
8
As soon as reasonably practicable after making a request under subsection (3), the requester must publish the documents included with the request in such manner as the requester considers appropriate (having regard to the desirability of the documents being accessible to those likely to have an interest in them).
9
Regulations made under this section are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).
.
2
The section title of section 32 becomes “Offence for unqualified person to provide certain legal services”.

Lord President’s functions under Parts 1 and 2: rule-making power

Lord President’s functions under Parts 1 and 2: rule-making making power
95
1
The Lord President may make rules in connection with the exercise of the Lord President’s functions under Part 1 or 2 of this Act.
2
Before making rules under subsection (1), the Lord President must consult—
a
the independent advisory panel of the Commission, and
b
each category 1 and category 2 regulator.
3
Rules under subsection (1) may in particular require each category 1 and category 2 regulator to maintain a list of—
a
its regulatory functions, and
b
the requirements imposed on it under this Act or any other enactment.
4
Rules under subsection (1)—
a
may make different provision for different purposes,
b
are to be published in such manner as the Lord President may determine.

Minor and consequential modifications

Modification of other enactments
96
Parts 4 and 5 of schedule 3 contain minor and consequential modifications of enactments.

Review of Act

Review of Act
97
1
The Scottish Ministers must, as soon as reasonably practicable after the end of the review period—
a
undertake a review of the principal changes to the regulation of legal services arising from the Act, and
b
prepare a report on that review.
2
The Scottish Ministers may delegate their functions under subsection (1) to such person as they consider appropriate.
3
When undertaking a review under subsection (1)(a), the Scottish Ministers (or, if applicable, the person to whom the function is delegated under subsection (2)) must consult—
a
regulators of legal services,
b
consumers of legal services,
c
the Commission, and
d
such other persons as are considered appropriate.
4
The Scottish Ministers must, as soon as reasonably practicable after the report is prepared—
a
publish the report, and
b
lay it before the Scottish Parliament.
5
In this section, “the review period” means the period of 10 years beginning with the day on which sections 7, 39, 50 and 85 come into force or, if they come into force on different days, the latest of those days.
S. 83 not in force at Royal Assent, see s. 103(3)
S. 84 not in force at Royal Assent, see s. 103(3)
S. 85 not in force at Royal Assent, see s. 103(3)
S. 86 not in force at Royal Assent, see s. 103(3)
S. 87 not in force at Royal Assent, see s. 103(3)
S. 88 not in force at Royal Assent, see s. 103(3)
S. 89 not in force at Royal Assent, see s. 103(3)
S. 90 not in force at Royal Assent, see s. 103(3)
S. 91 not in force at Royal Assent, see s. 103(3)
S. 92 not in force at Royal Assent, see s. 103(3)
S. 93 not in force at Royal Assent, see s. 103(3)
S. 94 not in force at Royal Assent, see s. 103(3)
S. 95 not in force at Royal Assent, see s. 103(3)
S. 96 not in force at Royal Assent, see s. 103(3)
S. 97 not in force at Royal Assent, see s. 103(3)