Regulation of Legal Services (Scotland) Act 2025

65 Commission rules as to practice and procedure

(1) The 2007 Act is amended as follows.

(2) In section 32 (duty of Commission to make rules as to practice and procedure), in subsection (5)—

(a) in paragraph (d), for “such” substitute “the independent advisory panel established under paragraph 11A of schedule 1 and such other”,

(b) after paragraph (d), insert—

“(e) such groups of persons representing the interests of the legal profession as it considers appropriate,”.

(3) In schedule 3 (rules as to Commission’s practice and procedure)—

(a) for paragraph 1 (provision which must be included), substitute—

“1 The rules as to the Commission’s practice and procedure made under section 32(1) must include provision about—

(a) the criteria to be met for a complaint to be considered eligible, including—

(i) the time limit within which a complaint must be made,

(ii) circumstances in which time limits may be extended,

(iii) requiring a complaint that is determined to be frivolous, vexatious or totally without merit to be considered ineligible,

(b) how a complaint is to be assessed with reference to eligibility criteria,

(c) the requirement for the complainer, for the purposes of Parts 1 and 2 of this Act, to waive any right of confidentiality in relation to the matters to which the complaint relates and, without which, the Commission is not to—

(i) remit a conduct complaint to a relevant professional organisation under section 6(2),

(ii) remit a regulatory complaint to a relevant professional organisation under section 7A(2),

(iii) investigate a services complaint by virtue of section 9,

(iv) investigate a handling complaint by virtue of section 23,

(d) matters to be considered by the Commission in assessing whether or not legal services provided by a person mentioned in section 2(1)(b)(ii) are merely incidental to the provision of other services (in determining whether a services complaint against such a person is an eligible complaint),

(e) how a complaint is to be categorised as a services complaint, a conduct complaint or a regulatory complaint (or any combination of the same and to any extent),

(f) assessing whether to initiate a complaint against a practitioner under section 2A(1) which, had it been received by a person mentioned in section 2(2), would be a conduct complaint or a regulatory complaint,

(g) the circumstances in which the Commission may decide—

(i) to discontinue the investigation of a services complaint under section 9(1A)(a),

(ii) to discontinue the investigation of a handling complaint under section 23(2)(b),

(h) the circumstances in which the Commission may decide—

(i) to reinstate the investigation of a discontinued services complaint under section 9(1A)(b),

(ii) to reinstate the investigation of a discontinued handling complaint under section 23(2)(c),

(i) the manner in which a services complaint is to be investigated by the Commission (and by whom),

(j) hearings to be held by the Commission in relation to a services complaint or a handling complaint being dealt with by it under Part 1 which must require the Commission—

(i) to hold a hearing in relation to such a complaint where it considers it appropriate, and

(ii) require the Commission to decide whether such a hearing should be public or private,

(k) evidence, including—

(i) the evidence that may be required or admitted,

(ii) the extent to which it may be oral or written,

(iii) the consequences of a person’s failure to produce any information or document which the person has been required to produce,

(l) the manner in which a services complaint is to be determined by the Commission (and by whom),

(m) the manner in which a handling complaint is to be investigated and determined by the Commission,

(n) the timing and the manner in which the Commission is to notify, in relation to a complaint other than a handling complaint, the complainer, practitioner and the practitioner’s employer (if any) and, where appropriate, the relevant professional organisation of its decisions including a decision—

(i) that a complaint referred to in section 2(1) is not an eligible complaint,

(ii) to initiate a conduct complaint or a regulatory complaint under section 2A(1),

(iii) that a complaint referred to in section 2(1) is eligible and whether it is being (or is to be) investigated by the Commission, the relevant professional organisation or both,

(iv) that the investigation of a complaint referred to in section 2(1) or 2A(1) has been (or is to be) discontinued or reinstated,

(v) whether or not a services complaint has been upheld by the Commission under section 9(1) and, if it has, any determination, direction or report by the Commission under section 10(2),

(vi) relating to an application for review under section 20A,

(o) the timing and the manner in which the Commission is to notify, in relation to a handling complaint, the following persons of its decisions—

(i) the person who made the handling complaint (and, if made on behalf of another person, that other person),

(ii) the other party to the conduct complaint or regulatory complaint to which the handling complaint relates (see section 24(10)), and

(iii) the relevant professional organisation,

(p) the membership of a review committee, including in particular provision requiring—

(i) that such a committee has at least 3 members, of which the majority are non-lawyer members of the Commission,

(ii) that such a committee is chaired by a lawyer member of the Commission,

(q) the procedure to be followed in connection with reviews under section 20A including—

(i) grounds on which an application for review will be considered eligible, including whether it has a reasonable prospect of success,

(ii) notice to be given of applications and decisions,

(iii) the manner in which reviews are to be conducted,

(r) the determination of the annual general levy, and the arrangements for payment of the levy, including—

(i) the matters to be taken account of by the Commission in determining the amount of the annual general levy relating to practitioners who are not individuals which may be different in different circumstances such as the size and income of the practitioner,

(ii) arrangements to be made with a view to ensuring that the annual general levy is not payable more than once by or in relation to an individual practitioner within an authorised legal business,

(s) the circumstances in which the complaints levy is payable under section 28(1) by a practitioner against whom a services complaint is made,

(t) the circumstances in which the complaints contribution is payable under section 28C(1) by a person against whom a services complaint is made,

(u) the charging of interest at such rate as may be specified by the Scottish Ministers by order under section 27(3)(b) on any amount of the annual general levy due to be paid to the Commission by a relevant professional organisation under section 27(2)(b) from the date the amount is due under the rules until it is paid,

(v) the charging of interest at such rate as may be specified by the Scottish Ministers by order under section 28(3)(b) on any amount of the complaints levy due to the Commission from the date the amount is due under the rules until it is paid.

1A Rules under paragraph 1(n)(v) must in particular provide that where a complaint referred to in section 2(1) constituted a services complaint and additionally constituted a conduct complaint or a regulatory complaint that has been remitted to a relevant professional organisation under section 6(2) or 7A(2) (as the case may be), the Commission must inform the organisation—

(a) of the outcome under section 9 of—

(i) any decision by the Commission relating to the investigation of the services complaint, or

(ii) any determination by the Commission of the services complaint, and

(b) if the Commission makes a determination under that section upholding the services complaint, of any determination, direction or report by the Commission under section 10(2).

1B Rules under paragraph 1(q)(iii) must in particular provide that any member of the review committee considering a complaint must not have been involved in—

(a) any aspect of the investigation of the complaint (including considering the eligibility of the complaint),

(b) the steps to be taken by the Commission where, in the course of considering a services complaint, it considers it to be reasonably likely that the complaint (or any element of it) may instead constitute a conduct complaint or regulatory complaint,

(c) determining the complaint under section 9(1),

(d) making a determination under section 10(2) in relation to the complaint.”,

(b) for paragraph 2 (provision which may in particular be included) substitute—

“2 The rules as to the Commission’s practice and procedure made under section 32(1) may in particular include provision about—

(a) the steps to be taken by the Commission where, in the course of considering a services complaint, it becomes aware of new information which causes it to decide that the complaint is not an eligible complaint,

(b) the steps to be taken by the Commission where, in the course of considering a services complaint, it considers it to be reasonably likely that the complaint (or any element of it) may instead constitute a conduct complaint or regulatory complaint,

(c) the steps to be taken by a relevant professional organisation where, in the course of considering a conduct or regulatory complaint, it considers it to be reasonably likely that the complaint (or any element of it) may instead constitute a services complaint,

(d) the circumstances in which the Commission is not prevented from considering a complaint which would otherwise be considered to have been made prematurely in accordance with the rules.”.