Regulation of Legal Services (Scotland) Act 2025

Prospective

71 Enforcement of minimum standards S

(1) The 2007 Act is amended as follows.

(2) After section 40, insert—

“40A Enforcement of minimum standards in relation to relevant professional organisations

(1) A relevant professional organisation must meet any minimum standards set by the Commission that apply to it.

(2) For the purpose of considering whether a relevant professional organisation is meeting any minimum standards that apply to it, the Commission may require from the relevant professional organisation—

(a) the production of information as to how it is meeting the minimum standards, and

(b) if the Commission is of the view that the relevant professional organisation is not (or has not been) meeting the minimum standards, an explanation of why the minimum standards are not being (or have not been) met.

(3) Subsection (4) applies where the Commission considers that a relevant professional organisation, without reasonable excuse, is failing (or has failed) to meet the minimum standards in respect of which information was sought under subsection (2).

(4) The relevant professional organisation and the Commission (“the parties”) must decide whether they are content for the dispute relating to the alleged failure to meet the minimum standards to be submitted to arbitration for resolution that is final and binding on the parties.

(5) If both parties agree that the dispute is to be submitted to an arbitrator, the arbitrator is to be appointed—

(a) jointly by the parties, or

(b) in the absence of agreement for joint appointment, by the Lord President on a request made by either (or both) of the parties.

(6) If the dispute is not submitted to arbitration, the Commission may direct the relevant professional organisation to take such steps as it considers appropriate within such period of time as may be specified in the direction.

(7) The period of time specified in a direction under subsection (6) for the taking of such steps by the relevant professional organisation as the Commission considers appropriate may be extended by agreement between the parties.

(8) The relevant professional organisation must, as soon as practicable following the expiry of the period of time referred to in subsection (6) (or such extended period of time referred to in subsection (7)), notify the Commission in writing of—

(a) the steps taken by or on behalf of the relevant professional organisation to comply with the direction, or

(b) if no such steps have been taken, or if not all steps necessary to comply with the direction have been taken, an explanation of the reason (or reasons) for the failure to comply with the direction.

(9) If the Commission considers that a relevant professional organisation has failed to comply with a direction under subsection (6), the Commission may apply to the court for the relevant professional organisation to be dealt with in accordance with subsection (10).

(10) Where such an application is made, the court may inquire into the matter and after hearing—

(a) any witnesses who may be produced against or on behalf of the relevant professional organisation, and

(b) any statement that may be offered in defence,

may order the relevant professional organisation to comply with the direction or part of the direction (see subsection (12)).

(11) Subsection (12) applies if the court, having considered an application under subsection (9)—

(a) is proposing to make an order under subsection (10) requiring a relevant professional organisation to comply with the direction, and

(b) considers that the taking of one or more steps specified in the order would have a detrimental effect on the ability of the relevant professional organisation to comply with its duty under section 3(1) or (3) of the 2025 Act.

(12) In making an order under subsection (10), the court may provide that the relevant professional organisation is not required to take a step referred to in subsection (11)(b).

(13) In this section, “minimum standards” means minimum standards that are set out in any guidance issued under—

(a) section 36A(1),

(b) section 39(1A),

(c) section 40(2).”.

Commencement Information

I1 S. 71 not in force at Royal Assent, see s. 103(3)