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Section G – Bills

New amendments to Bills lodged on 3 October 2006

Bankruptcy and Diligence etc. (Scotland) Bill – Stage 2

Section 192

Allan Wilson

445 In section 192, page 130, line 9, leave out <regulations> and insert <order>

Allan Wilson

446 In section 192, page 130, line 20, leave out <must> and insert <shall>

Allan Wilson

447 In section 192, page 130, line 29, at end insert—

<73CA Debt advice and information

(1) This section applies where—

(a) a creditor—

(i) obtains a final decree in an action on the dependence of which the creditor has executed an arrestment; or

(ii) arrests in execution of a decree or document of debt; and

(b) the debtor is an individual.

(2) The creditor shall, before the expiry of the period of 48 hours beginning with the time at which the copy of the final decree is served under section 73C(2) of this Act or, as the case may be, the time at which the schedule of arrestment is served, provide the debtor with a debt advice and information package.

(3) Where the creditor fails to comply with subsection (2) above, the arrestment shall cease to have effect or, as the case may be, shall be incompetent.

(4) In this section, “debt advice and information package” has the meaning given by section 47(4) of this Act.>

Allan Wilson

448 In section 192, page 131, line 6, leave out <or document>

Allan Wilson

449 In section 192, page 131, line 36, at end insert <; and

(c) the debtor is an individual.>

Allan Wilson

450 In section 192, page 131, leave out line 38

Allan Wilson

451 In section 192, page 132, line 24, leave out <must> and insert <shall>

Allan Wilson

452 In section 192, page 132, line 27, leave out <paragraph (b) of>

Allan Wilson

453 In section 192, page 133, leave out lines 9 and 10 and insert—

<(a) where any property, other than funds due to the debtor, is attached—

(i) the nature of that property; and

(ii) the value of it in so far as known to the arrestee; and

(b) where any such funds are attached, the nature and value of those funds.>

Allan Wilson

454 In section 192, page 133, line 12, at end insert <; and

(b) in so far as known to the arrestee, any person—

(i) who owns or claims to own attached property; or

(ii) to whom attached funds are or are claimed to be due,

solely or in common with the debtor.>

Allan Wilson

455 In section 192, page 134, line 5, at end insert <; and

(b) may, where a mandate authorises the arrestee to do so, release that sum before the expiry of that period.>

Allan Wilson

456 In section 192, page 134, line 19, leave out <, document>

Allan Wilson

457 In section 192, page 134, leave out lines 32 to 35 and insert—

<(a) a person mentioned in subsection (1A) below applies, by notice of objection, to the sheriff under section 73KA(1) of this Act; >

Allan Wilson

458 In section 192, page 134, line 35, at end insert—

<(aa) the debtor applies to the sheriff under section 73MA(2) of this Act;>

Allan Wilson

459 In section 192, page 135, line 1, leave out from <; or> to end of line 3

Allan Wilson

460 In section 192, page 135, line 3, at end insert—

<(1A) The persons referred to in subsection (1)(a) above are—

(a) the debtor;

(b) the arrestee; and

(c) any other person to whom the funds are due and owing solely or in common with the debtor (in this section and in sections 73KA and 73L of this Act, the “third party”).>

Allan Wilson

461 In section 192, page 135, line 3, at end insert—

<73KA Notice of objection: further provision

(1) Where section 73H of this Act applies—

(a) the debtor;

(b) the arrestee; or

(c) a third party,

may, by notice of objection, apply to the sheriff for an order recalling or restricting the arrestment.>

Allan Wilson

462 In section 192, page 135, line 4, leave out <(1)(a)> and insert <(1)>

Allan Wilson

463 In section 192, page 135, line 4, leave out <must> and insert <shall>

Allan Wilson

464 In section 192, page 135, line 7, leave out from beginning to <Act;> in line 12 and insert <the persons mentioned in subsection (2A) below before the expiry of the period of 4 weeks beginning with the date of service of a copy of the final decree under section 73C(2) of this Act or, as the case may be, the date of service of the schedule of arrestment;>

Allan Wilson

465 In section 192, page 135, line 14, leave out <both> and insert <more>

Allan Wilson

466 In section 192, page 135, line 15, at end insert—

<(2A) The persons referred to in subsection (2)(b) above are—

(a) the creditor;

(b) the sheriff clerk;

(c) the debtor or, as the case may be, the arrestee; and

(d) in so far as known to the person objecting, any third party.>

Allan Wilson

467 In section 192, page 135, line 17, leave out <arrestment> and insert <warrant in execution of which the arrestment was executed>

Allan Wilson

468 In section 192, page 135, line 18, at end insert—

<(c) the funds attached are due and owing to the third party solely or in common with the debtor.>

Allan Wilson

469 In section 192, page 135, line 18, at end insert—

<(4) Where a person applies by notice of objection under subsection (1) above, that person may not, subject to subsection (5) below, raise—

(a) an action of multiplepoinding; or

(b) subject to subsection (6) below, any other proceedings,

in relation to the funds attached.

(5) Subsection (4) above is without prejudice to the right of the person—

(a) to enter any such action or proceedings raised by any other person; and

(b) to raise such an action or proceedings where the sheriff makes, under section 73L(5) of this Act, an order sisting the proceedings on the objection.

(6) A debtor who applies by notice of objection under subsection (1) above may apply to the sheriff under section 73MA(2) of this Act and, in such a case, the sheriff may deal with both applications at one hearing.>

Allan Wilson

470 In section 192, page 135, line 20, at beginning insert <Subject to subsection (3A) below,>

Allan Wilson

471 In section 192, page 135, line 22, leave out <must> and insert <shall>

Allan Wilson

472 In section 192, page 135, line 22, at end insert—

<(1A) At the hearing under subsection (1) above, the sheriff shall not make any order without first giving—

(a) the creditor;

(b) the arrestee;

(c) the debtor; and

(d) any third party,

an opportunity to be heard.>

Allan Wilson

473 In section 192, page 135, line 26, leave out from <on> to end of line 27 and insert—

<(a) in a case where the period mentioned in section 73H(3) of this Act has not expired, on the expiry of that period; or

(b) in any other case, as soon as reasonably practicable after the date on which the order is made.>

Allan Wilson

474 In section 192, page 135, line 27, at end insert—

<(3A) Where—

(a) the sheriff is satisfied that it is more appropriate for the matters raised at the hearing to be dealt with by—

(i) an action of multiplepoinding; or

(ii) other proceedings,

raised in relation to the funds attached; or

(b) at any time before a decision is made under subsections (2) or (3) above, such an action is or other proceedings are raised,

the sheriff shall make an order sisting the proceedings on the objection.>

Allan Wilson

475 In section 192, page 135, line 28, at end insert—

<(6) Where the sheriff makes an order under this section, the sheriff shall order the person who objected to intimate that order to such of the persons mentioned in subsection (1A) above as the sheriff thinks fit.

(7) A person aggrieved by a decision of the sheriff under this section may, before the expiry of the period of 14 days beginning with the day on which the decision is made, appeal, on point of law only, to the sheriff principal, whose decision shall be final.>

Allan Wilson

476 In section 192, page 135, line 31, leave out <the arrestment>

Allan Wilson

477 In section 192, page 135, line 32, at beginning insert <the warrant in execution of which the arrestment was executed>

Allan Wilson

478 In section 192, page 135, line 33, at beginning insert <the arrestment>

Allan Wilson

479 In section 192, page 135, line 34, after <debtor> insert <or to any other person having an interest in the funds>

Allan Wilson

480 In section 192, page 135, line 35, at end insert—

<73MA Application for release of property where arrestment unduly harsh

(1) This section applies where—

(a) a creditor—

(i) obtains final decree in an action on the dependence of which the creditor executed an arrestment; or

(ii) arrests in execution of a decree or document of debt; and

(b) the arrestment attaches funds due to or other moveable property of the debtor.

(2) The debtor may apply to the sheriff for an order—

(a) providing that the arrestment ceases to have effect in relation to—

(i) the funds or other property attached; or

(ii) so much of those funds or that property as the sheriff specifies; and

(b) requiring the arrestee to release the funds or property to the debtor.

(3) An application under subsection (2) above shall be—

(a) in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b) made at any time during which the arrestment has effect; and

(c) intimated to—

(i) the creditor;

(ii) the arrestee; and

(iii) any other person appearing to have an interest.

73MB Hearing on application under section 73MA for release of property

(1) At the hearing on an application under section 73MA(2) of this Act, the sheriff shall not make any order without first giving—

(a) the creditor;

(b) the arrestee; and

(c) any other person appearing to the court to have an interest,

an opportunity to be heard.

(2) Subject to subsection (3) below, if the sheriff is satisfied that the arrestment is unduly harsh—

(a) to the debtor; or

(b) where the debtor is an individual, to any person such as is mentioned in subsection (4) below,

the sheriff shall make an order such as is mentioned in section 73MA(2) of this Act.

(3) Before making an order under subsection (2) above the sheriff shall have regard to all the circumstances including, in a case where the debtor is an individual and funds are attached—

(a) the source of those funds; and

(b) where the source of those funds is or includes earnings, whether an earnings arrestment, current maintenance arrestment or conjoined arrestment order is in effect in relation to those earnings.

(4) The persons referred to in subsection (3)(b) above are—

(a) a spouse of the debtor;

(b) a person living with the debtor as husband and wife;

(c) a civil partner of the debtor;

(d) a person living with the debtor in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the debtor are of the same sex;

(e) a child of the debtor under the age of 16 years, including—

(i) a stepchild; and

(ii) any child brought up or treated by the debtor or any person mentioned in paragraph (b), (c) or (d) above as a child of the debtor or, as the case may be, that person.

(5) Where the sheriff refuses to make an order under subsection (2) above, the sheriff may, in a case where funds are attached, make an order requiring a sum determined in the order to be released to the creditor—

(a) in a case where the period mentioned in section 73H(3) of this Act has not expired, on the expiry of that period; or

(b) in any other case, as soon as reasonably practicable after the date on which the order is made.

(6) Where the sheriff makes an order under this section, the sheriff shall order the debtor to intimate that order to the persons mentioned in subsection (1) above.

(7) A person aggrieved by a decision of the sheriff under this section may, before the expiry of the period of 14 days beginning with the day on which the decision is made, appeal, on point of law only, to the sheriff principal, whose decision shall be final.>

Allan Wilson

481 In section 192, page 136, line 2, leave out <granted by a debtor>

Allan Wilson

482 In section 192, page 136, line 8, leave out <granted by a debtor>

Allan Wilson

483 In section 192, page 136, line 12, after <debtor> insert <or to any other person having an interest in the funds or property>.

Schedule 5

Allan Wilson

484 In schedule 5, page 174, line 12, at end insert—

<( ) after the definition of “current maintenance”, insert—

““debt advice and information package” has the meaning given to it in section 47(4) of this Act;”;>

Legal Profession and Legal Aid (Scotland) Bill – Stage 2

Section 35

Hugh Henry

301 In section 35, page 21, line 9, leave out <subsection (2), “complainer” and “practitioner”> and insert <this section and sections (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations) to (Restriction upon disclosure of information: relevant professional organisations), words and expressions>

After section 35

Hugh Henry

302 After section 35, insert—

<Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations

(1) Where a relevant professional organisation is satisfied that it is necessary for it to do so for the purposes of an investigation by it into a conduct complaint under section 35 or a review by it of a decision in relation to a conduct complaint, it may—

(a) give notice in writing in accordance with subsection (2) to the practitioner, the practitioner’s firm or, as the case may be, the employing practitioner;

(b) give notice in writing in accordance with subsection (4) to the complainer.

(2) Notice under subsection (1)(a) may require—

(a) the production or delivery to any person appointed by the relevant professional organisation, at a time and place specified in the notice, of all documents mentioned in subsection (3) which are in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner and which relate to the matters to which the complaint relates (whether or not they relate also to other matters);

(b) an explanation, within such period being not less than 21 days as the notice specifies, from the practitioner, the firm or, as the case may be, the employing practitioner regarding the matters to which the complaint relates.

(3) The documents are—

(a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner;

(b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which the practitioner is the sole trustee or a co-trustee only with one or more of the practitioner’s partners or employees or, as the case may be, where the practitioner is an incorporated practice of which the practice or one of its employees is a sole trustee or it is a co-trustee only with one or more of its employees.

(4) Notice under subsection (1)(b) may require—

(a) the production or delivery to any person appointed by the relevant professional organisation at a time and place specified in the notice, of all documents mentioned in subsection (5) which relate to the matters to which the complaint relates (whether or not they relate to other matters);

(b) an explanation, within such period being not less than 21 days as the notice specifies, from the complainer regarding the matters to which the complaint relates.

(5) The documents are all books, accounts, deeds, securities, papers and other documents in the possession or control of the complainer.

(6) Schedule (Further powers of relevant professional organisations under section (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)) makes further provision about the powers of a relevant professional organisation under this section.>

Hugh Henry

303 After section 35, insert—

<Conduct complaints: financial impropriety

(1) If, in the course of an investigation into a conduct complaint under section 35, a relevant professional organisation has reasonable cause to believe that the practitioner, the practitioner’s firm (or any employee thereof) or, as the case may be, the employing practitioner, has been guilty of any financial impropriety it may apply to the court for an order under subsection (2).

(2) An order under this subsection is that no payment be made by any banker, building society or other body named in the order out of—

(a) any banking account in the name of such practitioner or firm; or

(b) any sum deposited in the name of such practitioner or firm,

without the leave of the court.>

Hugh Henry

304 After section 35, insert—

<Power of relevant professional organisations to recover certain expenses

(1) A relevant professional organisation is, subject to subsection (2), entitled to recover from a practitioner, the practitioner’s firm or, as the case may be, the employing practitioner, in respect of whom it has take any action by virtue of section (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)(1)(a)or (Conduct complaints: financial impropriety), any expenditure reasonably incurred by it in so doing.

(2) Expenditure incurred in taking action by virtue of section (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)(1)(a) is recoverable under subsection (1) only where notice has been served under paragraph 2(a) of schedule (Further powers of relevant professional organisations under section (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)) in connection with that action and—

(a) no application has been made in consequence under paragraph 3 of that schedule; or

(b) the court, on such an application, has made a direction under paragraph 4 of that schedule.>

Hugh Henry

305 After section 35, insert—

<Powers in relation to documents and information from third parties

(1) Where a relevant professional organisation has requested that documents or information in the possession or control of a person be produced for the purposes of an investigation by it into a conduct complaint under section 35 or a review by it of a decision in relation to a conduct complaint, and the person refuses or fails to produce the documents or information, the organisation may apply to the court for an order under subsection (2).

(2) An order by the court under this subsection may require a person to produce or deliver the documents or information or to cause them or it to be produced or delivered to the person appointed at the place fixed by the relevant professional organisation within such time as the court may order.

(3) Subsections (3) to (7) of section (Documents and information from third parties) apply for the purposes of this section as they apply for the purposes of that section but subject to the modification that for the references in subsections (4) to (6) to “the Commission” substitute “the relevant professional organisation”.>

After schedule 3

Hugh Henry

306 After schedule 3, insert—

<SCHEDULE

(introduced by section (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations))

FURTHER POWERS OF RELEVANT PROFESSIONAL ORGANISATIONS UNDER SECTION (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)

1 Where a relevant professional organisation gives notice—

(a) under section (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)(1)(a) to any person having possession or control of any documents mentioned in subsection (3) of that section;

(b) under section (Conduct complaints and reviews: power of relevant professional organisations to examine documents and demand explanations)(1)(b) to any person having possession or control of any documents mentioned in subsection (5) of that section,

and the person refuses or fails to produce or deliver any of the documents within the time specified in the notice or to cause them to be so produced or delivered, the relevant professional organisation may apply to the court for an order requiring the person to produce or deliver the documents or to cause them to be produced or delivered to the person appointed at the place fixed by the relevant professional organisation within such time as the court may order.

2 Where a relevant professional organisation takes possession of any such documents which have been produced or delivered to it, it must—

(a) in the case mentioned in paragraph 1(a), without delay serve on the practitioner against whom the complaint is made, and any other person to whom the notice was given;

(b) in the case mentioned in paragraph 1(b), without delay serve on the complainer,

a notice giving particulars and the date on which it took possession.

3 Before the expiry of the period of 14 days after service of a notice under paragraph 2 the person on whom the notice has been served may apply to the court for an order directing the relevant professional organisation to return such documents to the person from whom they were received by the relevant professional organisation or to such other person as the applicant may request; and on the hearing of any such application the court may make the order applied for or such other order as it thinks fit.

4 If no application is made to the court under paragraph 3, or if the court on any such application directs that the documents in question remain in the custody or control of the relevant professional organisation, the relevant professional organisation may make enquiries to ascertain the person to whom they belong and may deal with the documents in accordance with the directions of that person.>

Section 36

Hugh Henry

307 In section 36, page 22, line 3, at beginning insert <subject to subsection (5A),>

Hugh Henry

308 In section 36, page 22, line 3, leave out <to the Council>

Hugh Henry

309 In section 36, page 22, line 5, at beginning insert <where the Council consider that the complainer has been directly affected by the conduct,>

Hugh Henry

310 In section 36, page 22, line 5, leave out <to the client>

Hugh Henry

311 In section 36, page 22, line 6, at end insert <to the complainer for loss, inconvenience or distress resulting from the conduct>

Hugh Henry

312 In section 36, page 22, line 10, at end insert—

<(5A) The Council shall not direct the solicitor to pay a fine under subsection (4)(b) where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

(5B) Any fine directed to be paid under subsection (4)(b) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.>

Hugh Henry

313 In section 36, page 22, leave out lines 11 to 15

Hugh Henry

314 In section 36, page 22, line 25, leave out <date> and insert <day>

Hugh Henry

315 In section 36, page 22, line 28, at end insert—

<(8A) A complainer may, before the expiry of the period of 21 days beginning with the day on which a determination under subsection (1) not upholding the conduct complaint is intimated to him, appeal to the Tribunal against the determination.

(8B) Where the Council have upheld the conduct complaint but have not directed the solicitor under subsection (4)(c) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the determination upholding the complaint is intimated to him, appeal to the Tribunal against the Council’s decision not to make a direction under that subsection.

(8C) A complainer to whom the Council have directed a solicitor under subsection (4)(c) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the Tribunal against the amount of the compensation directed to be paid.>

Hugh Henry

316 In section 36, page 23, leave out lines 1 to 3

Hugh Henry

317 In section 36, page 23, line 18, leave out <42ZA(8)> and insert <42ZA(8) or (8C) or 54A(1) or (2)>

Hugh Henry

318 In section 36, page 23, line 20, at end insert—

<( ) After section 53 (powers of Tribunal), insert—

“53ZA Powers of Tribunal on appeal: unsatisfactory professional conduct

(1) On an appeal to the Tribunal under section 42ZA(8) the Tribunal—

(a) may quash or confirm the determination being appealed against;

(b) if it quashes the determination, shall quash the censure accompanying the determination;

(c) may quash, confirm or vary the direction being appealed against;

(d) may, subject to subsection (5), fine the solicitor;

(e) may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

(2) On an appeal to the Tribunal under section 42ZA(8A) the Tribunal—

(a) may quash the determination being appealed against and make a determination upholding the complaint;

(b) if it does so, may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct;

(c) may confirm the determination.

(3) On an appeal to the Tribunal under section 42ZA(8B) the Tribunal may, where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

(4) On an appeal under section 42ZA(8C) the Tribunal may quash, confirm or vary the direction being appealed against.

(5) The Tribunal shall not direct the solicitor to pay a fine under subsection (1)(d) where, in relation to the subject matter of the complaint, the solicitor has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

(6) Any fine directed to be paid under subsection (1)(d) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

(7) In this section, “complainer” has the same meaning as in section 42ZA.

53ZB Enforcement of Council direction: unsatisfactory professional conduct

Where a solicitor fails to comply with a direction given by the Council under section 42ZA(4) (including such a direction as confirmed or varied on appeal by the Tribunal or, as the case may be, the court) before the expiry of the period specified in the notice relating to that direction given to him under section 42ZB(1), or such longer period as the Council may allow, the direction shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.”.>

Hugh Henry

319 In section 36, page 23, line 20, at end insert—

<( ) After section 54 (appeals from decisions of Tribunal), insert—

54A Appeals from decisions of Tribunal: unsatisfactory professional conduct

(1) A solicitor in respect of whom a decision has been made by the Tribunal under section 53ZA(1), (2), (3) or (4) may, before the expiry of the period of 21 days beginning with the day on which the decision is intimated to him, appeal to the court against the decision.

(2) A complainer may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53ZA to which this subsection applies is intimated to him, appeal to the court against the decision.

(3) Subsection (2) applies to the following decisions of the Tribunal under section 53ZA—

(a) a decision under subsection (1)(a) quashing the Council’s determination upholding the complaint;

(b) a decision under subsection (1)(c) quashing or varying a direction by the Council that the solicitor pay compensation;

(c) a decision under subsection (1)(e) directing the solicitor to pay compensation;

(d) a decision under subsection (2)(b) not to direct the solicitor to pay compensation;

(e) a decision under subsection (2)(c) confirming the Council’s decision not to uphold the complaint;

(f) a decision under subsection (3) confirming the Council’s decision not to direct the solicitor to pay compensation;

(g) a decision under subsection (4) quashing the Council’s direction that the solicitor pay compensation or varying the amount of compensation directed to be paid.

(4) On an appeal under subsection (1) or (2), 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.

(5) A decision of the court under subsection (4) shall be final.

(6) In this section, “complainer” has the same meaning as in section 42ZA.”.>

Hugh Henry

320 In section 36, page 23, line 20, at end insert—

<( ) After section 55 (powers of court), insert—

55A Powers of court: unsatisfactory professional conduct

(1) In the case of unsatisfactory professional conduct by a solicitor the court may—

(a) fine the solicitor;

(b) where it considers that the complainer has been directly affected by the conduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct;

(c) find the solicitor liable in any expenses which may be involved in the proceedings before it.

(2) A decision of the court under subsection (1) shall be final.

(3) In this section, “complainer” has the same meaning as in section 42ZA.”.>

Hugh Henry

321 In section 36, page 23, line 27, leave out subsection (4)

Hugh Henry

322 In section 36, page 23, line 32, leave out subsection (5)

Section 37

Hugh Henry

323 Leave out section 37 and insert—

<Unsatisfactory professional conduct: conveyancing or executry practitioners

(1) The 1990 Act is amended as follows.

(2) After section 20 (professional misconduct etc. by conveyancing or executry practitioners), insert—

20ZA Unsatisfactory professional conduct

(1) Where a conduct complaint suggesting unsatisfactory professional conduct by a practitioner is remitted to the Council under section 5(a) or 11(5)(a) of the 2006 Act, the Council must having—

(a) investigated the complaint under section 35(1) of that Act and made a written report under section 35(2) of that Act;

(b) given the practitioner an opportunity to make representations,

determine the complaint.

(2) Where the Council make a determination under subsection (1) upholding the complaint, they—

(a) shall censure the practitioner;

(b) may take any of the steps mentioned in subsection (3) which they consider appropriate.

(3) The steps are—

(a) where the Council consider that the practitioner does not have sufficient competence in relation to any aspect of conveyancing law or legal practice or, as the case may be, executry law or legal practice, to direct him to undertake such education or training as regards the law or legal practice concerned as the Council consider appropriate in that respect;

(b) subject to subsection (5) below, to direct the practitioner to pay to the Council a fine not exceeding £2,000;

(c) where the Council consider that the complainer has been directly affected by the conduct, to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

(4) The Council may, in considering the complaint, take account of any previous determination by them upholding a complaint against the practitioner of unsatisfactory professional conduct (but not a complaint in respect of which an appeal is pending or which has been quashed ultimately on appeal).

(5) The Council shall not direct the practitioner to pay a fine under subsection (3)(b) above where, in relation to the subject matter of the complaint, he has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

(6) Any fine directed to be paid under subsection (3)(b) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

(7) The Council shall intimate—

(a) a determination under subsection (1);

(b) any censure under subsection (2)(a);

(c) any direction under subsection (3),

to the complainer and the practitioner by sending to each of them a copy of the determination, the censure or, as the case may be, the direction.

(8) A practitioner in respect of whom a determination upholding a conduct complaint has been made under subsection (1), or a direction has been made under subsection (3) may, before the expiry of the period of 21 days beginning with the day on which the determination or, as the case may be, the direction is intimated to him, appeal to the Tribunal against the—

(a) determination;

(b) direction (whether or not he is appealing against the determination).

(9) A complainer may, before the expiry of the period of 21 days beginning with the day on which a determination under subsection (1) not upholding the conduct complaint is intimated to him, appeal to the Tribunal against the determination.

(10) Where the Council have upheld the conduct complaint but have not directed the practitioner under subsection (3)(c) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the determination upholding the complaint is intimated to him, appeal to the Tribunal against the Council’s decision not to make a direction under that subsection.

(11) A complainer to whom the Council have directed a practitioner under subsection (3)(c) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the Tribunal against the amount of the compensation directed to be paid.

(12) The Scottish Ministers may by order made by statutory instrument—

(a) amend subsection (3)(b) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money;

(b) after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (3)(c) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.

(13) A statutory instrument containing an order under—

(a) subsection (12)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament;

(b) subsection (12)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

20ZB Unsatisfactory professional conduct: Council’s powers to monitor compliance with direction under section 20ZA(3)

(1) The Council shall, by notice in writing, require every practitioner who is specified in—

(a) a direction made under section 20ZA(3); or

(b) such a direction as confirmed or varied on appeal by—

(i) the Tribunal; or

(ii) the court,

to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction.

(2) Where an appeal is made under section 20ZA(8) or (11) or 20D(1) or (2) against a direction made under section 20ZA(3), any notice under subsection (1) above relating to the direction shall cease to have effect pending the outcome of the appeal.”.

(3) After section 20A (review by Council of certain of their decisions), insert—

“20B Unsatisfactory professional conduct: powers of Tribunal on appeal

(1) On an appeal to the Tribunal under section 20ZA(8) the Tribunal—

(a) may quash or confirm the determination being appealed against;

(b) if they quash the determination, shall quash the censure accompanying the determination;

(c) may quash, confirm or vary the direction being appealed against;

(d) may, subject to subsection (5), fine the practitioner;

(e) may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

(2) On an appeal to the Tribunal under section 20ZA(9) the Tribunal—

(a) may quash the determination being appealed against and make a determination upholding the complaint;

(b) if they do so, may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct;

(c) may confirm the determination.

(3) On an appeal to the Tribunal under section 20ZA(10) the Tribunal may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct.

(4) On an appeal under section 20ZA(11) the Tribunal may quash, confirm or vary the direction being appealed against.

(5) The Tribunal shall not direct the practitioner to pay a fine under subsection (1)(d) where, in relation to the subject matter of the complaint, he has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

(6) Any fine directed to be paid under subsection (1)(d) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

20C Unsatisfactory professional conduct: enforcement of Council direction

(1) Where a practitioner fails to comply with a direction given by the Council under section 20ZA(3) (including such a direction as confirmed or varied on appeal by the Tribunal or, as the case may be, the court) before the expiry of the period specified in the notice relating to that direction given to the practitioner under section 20ZB(1), or such longer period as the Council may allow, the direction shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

20D Unsatisfactory professional conduct: appeal from decisions of Tribunal

(1) A practitioner in respect of whom a decision has been made by the Tribunal under section 20B(1), (2), (3) or (4) may, before the expiry of the period of 21 days beginning with the day on which the decision is intimated to him, appeal to the court against the decision.

(2) A complainer may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 20B to which this subsection applies is intimated to him, appeal to the court against the decision.

(3) Subsection (2) applies to the following decisions of the Tribunal under section 20B—

(a) a decision under subsection (1)(a) quashing the Council’s determination upholding the complaint;

(b) a decision under subsection (1)(c) quashing or varying a direction by the Council that the practitioner pay compensation;

(c) a decision under subsection (1)(e) directing the practitioner to pay compensation;

(d) a decision under subsection (2)(b) not to direct the practitioner to pay compensation;

(e) a decision under subsection (2)(c) confirming the Council’s decision not to uphold the complaint;

(f) a decision under subsection (3) confirming the Council’s decision not to direct the practitioner to pay compensation;

(g) a decision under subsection (4) quashing the Council’s direction that the practitioner pay compensation or varying the amount of compensation directed to be paid.

(4) On an appeal under subsection (1) or (2), 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.

(5) A decision of the court under subsection (4) shall be final.

20E Unsatisfactory professional conduct: powers of court on appeal

(1) On an appeal under section 20D, the court may—

(a) fine the practitioner;

(b) where it considers that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct;

(c) find the practitioner liable in any expenses which may be involved in the proceedings before it.

(2) A decision of the court under subsection (1) shall be final.”.>

After section 37

Hugh Henry

324 After section 37, insert—

<Report by Commission to Council under section 8(2)(e)

(1) After section 42ZB of the 1980 Act (as inserted by section 36(2) of this Act), insert—

42ZC Report by Commission to Council under section 8(2)(e) of the 2006 Act: Council’s powers

(1) Where the Council receive a report from the Commission under section 8(2)(e) of the 2006 Act as respects a practitioner who is a solicitor, they may direct him to undertake such education or training as regards the law or legal practice as the Council consider appropriate in the circumstances.

(2) The Council shall by notice in writing—

(a) intimate a direction under subsection (1) to the solicitor;

(b) require the solicitor to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction.

(3) Where an appeal is made under section 42ZD(1) or (3) against a direction under subsection (1), any notice under subsection (2)(b) relating to the direction shall cease to have effect pending the outcome of the appeal.

42ZD Direction under section 42ZC(2): appeal by practitioner

(1) A solicitor in respect of whom a direction has been made under section 42ZC(1) may, before the expiry of the period of 21 days beginning with the day on which it is intimated to him, appeal to the Tribunal against the direction.

(2) On an appeal to the Tribunal under subsection (1), the Tribunal may quash, confirm or vary the direction being appealed against.

(3) The solicitor may, before the expiry of the period of 21 days beginning with the day on which the Tribunal’s decision under subsection (2) is intimated to him, appeal to the court against the decision.

(4) On an appeal to the court under subsection (3), 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.

(5) A decision of the court on an appeal under subsection (3) shall be final.”.

(2) After section 20ZB of the 1990 Act (as inserted by section (Unsatisfactory professional conduct: conveyancing or executry practitioners)(2) of this Act), insert—

20ZC Report by Commission to Council under section 8(2)(e) of the 2006 Act: Council’s powers

(1) Where the Council receive a report from the Commission under section 8(2)(e) of the 2006 Act as respects a practitioner, they may direct him to undertake such education or training as regards conveyancing law or legal practice or, as the case may be, executry law or legal practice as they consider appropriate in the circumstances.

(2) The Council shall by notice in writing—

(a) intimate a direction under subsection (1) to the practitioner;

(b) require the practitioner to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction.

(3) Where an appeal is made under section 20ZD(1) or (3) against a direction under subsection (1), any notice under subsection (2)(b) relating to the direction shall cease to have effect pending the outcome of the appeal.

20ZD Direction under section 20ZC(1): appeal by practitioner

(1) A practitioner in respect of whom a direction has been made under section 20ZC(1) may, before the expiry of the period of 21 days beginning with the day on which it is intimated to him, appeal to the Tribunal against the direction.

(2) On an appeal to the Tribunal under subsection (1), the Tribunal may quash, confirm or vary the direction being appealed against.

(3) The practitioner may, before the expiry of the period of 21 days beginning with the day on which the Tribunal’s decision under subsection (2) is intimated to him, appeal to the court against the decision.

(4) On an appeal to the court under subsection (3), 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.

(5) A decision of the court on an appeal under subsection (3) shall be final.”.>

Section 38

Hugh Henry

325 In section 38, page 24, line 7, after <misconduct,> insert <and where the Tribunal consider that the complainer has been directly affected by the misconduct,>

Hugh Henry

326 In section 38, page 24, line 8, leave out from second <to> to <distress> in line 11 and insert <compensation of>

Hugh Henry

327 In section 38, page 24, line 12, at end insert <to the complainer for loss, inconvenience or distress resulting from the misconduct>

Hugh Henry

328 In section 38, page 24, line 13, leave out <(7)> and insert <(7A)>

Hugh Henry

329 In section 38, page 24, line 14, leave out <(7A)> and insert <(7B)>

Hugh Henry

330 In section 38, page 24, line 19, leave out <(7B)> and insert <(7C)>

Hugh Henry

331 In section 38, page 24, line 21, at end insert <;

( ) after subsection (8), insert—

“(9) In subsection (2)(bb), “complainer” has the same meaning as in section 42ZA.”>

Hugh Henry

332 In section 38, page 24, line 21, at end insert—

<(1A) In section 55 of the 1980 Act (powers of court)—

(a) in subsection (1), after paragraph (bb), insert—

“(bc) where the court considers that the complainer has been directly affected by the misconduct, direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the misconduct; or”;

(b) after subsection (4) insert—

“(5) The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend paragraph (bc) of subsection (1) by substituting for the amount for the time being specified in that paragraph such other amount as they consider appropriate.

(6) A statutory instrument containing an order under subsection (5) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

(7) In this section, “complainer” has the same meaning as in section 42ZA.”.>

Hugh Henry

333 In section 38, page 24, line 22, leave out <, inadequate professional services>

Hugh Henry

334 In section 38, page 24, line 23, at end insert—

<( ) in subsection (2), after paragraph (c) insert—

“(ca) where the Council consider that the complainer has been directly affected by the professional misconduct or, as the case may be, the matter referred to in paragraph (d) of subsection (1), to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Council may specify to the complainer for loss, inconvenience or distress resulting from the misconduct or, as the case may be, the matter;

(cb) subject to subsection (2ZA) below, to impose on the practitioner a fine not exceeding £2,000;”;

( ) after that subsection, insert—

“(2ZA) The Council shall not impose a fine under subsection (2)(cb) above where, in relation to the subject matter of the complaint, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.

(2ZB) Any fine imposed under subsection (2)(cb) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.”;>

Hugh Henry

335 In section 38, page 24, line 25, after <misconduct,> insert <and where the Tribunal consider that the complainer has been directly affected by the misconduct, to>

Hugh Henry

336 In section 38, page 24, line 26, leave out from second <to> to <distress> in line 29 and insert <compensation of>

Hugh Henry

337 In section 38, page 24, line 30, at end insert <to the complainer for loss, inconvenience or distress resulting from the misconduct>

Hugh Henry

338 In section 38, page 24, line 31, leave out <(11A)> and insert <(11E) (as inserted by section (Review of and appeal against decisions on remitted conduct complaints: cases other than unsatisfactory professional conduct) (2)(d) of this Act)>

Hugh Henry

339 In section 38, page 24, line 32, leave out <(11B)> and insert <(11F)>

Hugh Henry

340 In section 38, page 24, line 34, after <subsection> insert <(2)(ca) or>

Hugh Henry

341 In section 38, page 24, line 37, leave out <(11C)> and insert <(11G)>

After section 38

Hugh Henry

342 After section 38, insert—

<Review of and appeal against decisions on remitted conduct complaints: cases other than unsatisfactory professional conduct

(1) In section 54 of the 1980 Act (appeals from decisions of Tribunal in cases other than unsatisfactory professional conduct)—

(a) after subsection (1), insert—

“(1A) A solicitor, a firm of solicitors or, as the case may be, an incorporated practice may, before the expiry of the period of 21 days beginning with the day on which any decision by the Tribunal mentioned in subsection (1B) is intimated to him or, as the case may be, it appeal to the court against the decision.

(1B) The decision is—

(a) where the Tribunal was satisfied as mentioned in section 53(1)(a), the finding that the solicitor has been guilty of professional misconduct;

(b) where the Tribunal was satisfied as mentioned in section 53(1)(d), the finding that the incorporated practice has failed to comply with any provision of this Act or of any rule made under this Act applicable to the practice;

(c) in any case falling within paragraph (a) or (b), or where the decision was made because of the circumstances mentioned in section 53(1)(b) or (c), any decision under section 53(2) or (5).

(1C) The Council may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 53(2) or (5) is intimated to them, appeal to the court against the decision; but the Council may not appeal to the court against a decision of the Tribunal under section 53(2)(bb).

(1D) Where the Tribunal has found that a solicitor has been guilty of professional misconduct but has not directed him under section 53(2)(bb) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal’s finding is intimated to him, appeal to the court against the decision of the Tribunal not to make a direction under that subsection.

(1E) A complainer to whom the Tribunal has directed a solicitor under section 53(2)(bb) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the court against the amount of the compensation directed to be paid.

(1F) On an appeal under any of subsections (1A) to (1E), 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.

(1G) A decision of the court under subsection (1A), (1B), (1C), (1D), (1E) or (1F) shall be final.”;

(b) in subsection (2), after paragraph (b) insert “;

(c) the Tribunal has exercised the power conferred by section 53(6B) to direct that its order shall take effect on the day on which it is intimated to the solicitor, firm of solicitors or incorporated practice concerned, the solicitor, firm of solicitors or incorporated practice may, before the expiry of the period of 21 days beginning with that day, apply to the court for an order varying or quashing the direction in so far as it relates to the day on which the order takes effect”;

(c) after that subsection, insert—

“(2A) In subsections (1D) and (1E), “complainer” has the same meaning as in section 42ZA.

(2B) Subsection (1) does not apply to any element of a decision of the Tribunal to which subsections (1A) to (1G) and paragraph (c) of subsection (2) apply.

(2C) Subsections (1A) to (1G), and paragraph (c) of subsection (2), apply to any element of a decision of the Tribunal which does not relate to the provision of advice, services or activities referred to in section 47(2) of the 2006 Act.”.

(2) In section 20 of the 1990 Act (professional misconduct etc. by conveyancing or executry practitioners)—

(a) after subsection (8), insert—

“(8A) Where the Council are satisfied that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner, the practitioner may—

(a) before the expiry of the period of 21 days beginning with the day on which the finding by the Council to that effect is intimated to him, apply to the Council for a review by them of the finding;

(b) before the expiry of the period of 21 days beginning with the day on which the outcome of the review is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash or confirm the decision.”;

(b) after subsection (11), insert—

“(11ZA)Where the Council find that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner but do not direct him under subsection (2)(ca) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Council’s finding is intimated to him, apply to the Council for a review by them of their decision not to direct the practitioner under subsection (2)(ca) to pay compensation.

(11ZB)A complainer to whom the Council have directed a practitioner under subsection (2)(ca) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, apply to the Council for a review by them of the direction.

(11ZC) The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of the review under subsection (11ZA) or (11ZB) is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash, confirm or vary the decision.”;

(c) in subsection (11A)—

(i) in paragraph (a), after “subsection” insert “(8A)(b) or”;

(ii) after that paragraph, insert—

“(aa) a finding by the Tribunal that a practitioner is guilty of professional misconduct or that the circumstances mentioned in subsection (1)(d) apply as respects the practitioner; or”;

(iii) for the words “or, as the case may be,” substitute “the finding referred to in paragraph (aa) or, as the case may be, the decision”;

(d) after that subsection, insert—

“(11B) The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of any appeal under subsection (11ZC) is intimated to him, appeal to the court against the Tribunal’s decision in the appeal.

(11C) Where after holding an inquiry into a complaint against a practitioner, the Tribunal find that he has been guilty of professional misconduct or that the circumstances referred to in subsection (2A)(b) apply as respects him, but do not direct the practitioner under subsection (2B)(aa) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal’s finding is intimated to him, appeal to the court against the decision of the Tribunal not to make a direction under that subsection.

(11D) A complainer to whom the Tribunal have directed a practitioner under subsection (2B)(aa) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the court against the amount of the compensation directed to be paid.

(11E) In an appeal under subsection (11C) or (11D), the court may make such order in the matter as it thinks fit.”.>

After section 43

Hugh Henry

343 After section 43, insert—

<Regulation of notaries public

After section 59 of the 1980 Act, insert—

59A Rules regarding notaries public

(1) Subject to subsections (2) and (3), the Council may, if they think fit, make rules for regulating in respect of any matter the admission, enrolment and professional practice of notaries public.

(2) The Council shall, before making any rules under this section—

(a) send to each notary public a draft of the rules; and

(b) take into consideration any representations made by any notary public on the draft.

(3) Rules made under this section shall not have effect unless the Lord President, after considering any representations the Lord President thinks relevant, has approved the rules so made.

(4) If a notary public fails to comply with any rule made under this section that failure may be treated as professional misconduct or unsatisfactory professional conduct on the part of the solicitor who is the notary public.”.>

Schedule 4

Hugh Henry

344 In schedule 4, page 44, line 35, after <Act> insert <or section 20ZA(1) of the 1990 Act>

Hugh Henry

345 In schedule 4, page 45, line 1, after <Act> insert <or section 20ZA(2)(b) of the 1990 Act>

Hugh Henry

346 In schedule 4, page 45, line 33, at end insert—

<( ) In section 38 (powers where dishonesty alleged), after subsection (3) insert—

“(4) This section does not apply to any element of dishonesty other than that involving the provision of advice, services or activities referred to in section 47(2) of the 2006 Act.”.>

Hugh Henry

347 In schedule 4, page 45, line 33, at end insert—

<( ) In section 45 (safeguarding interests of clients of solicitors struck off or suspended)—

(a) for subsection (3), substitute—

“(3A) If the solicitor or, as the case may be, the incorporated practice fails so to satisfy the Council, the Council may—

(a) require the production or delivery to any person appointed by them at a time and place fixed by them of the documents mentioned in subsection (3B);

(b) take possession of all such documents; and

(c) apply to the court for an order that no payment be made by any banker, building society or other body named in the order out of any banking account or any sum deposited in the name of the solicitor or his firm or, as the case may be, the incorporated practice without the leave of the court and the court may make such order.

(3B) The documents are—

(a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the solicitor or his firm or, as the case may be, the incorporated practice;

(b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which the solicitor is a sole trustee or is a co-trustee only with one or more of his partners or employees or, as the case may be, of which the incorporated practice is a sole trustee or of which the practice is a co-trustee only with one or more of its employees.”;

(b) after subsection (4A) (as inserted by section 41(2)(a) of this Act), insert—

“(4B) Part II of Schedule 3 has effect in relation to the powers of the Council under subsection (3A).”.>

Hugh Henry

348 In schedule 4, page 45, line 33, at end insert—

<( ) In section 46 (safeguarding interests of clients in certain other cases)—

(a) in each of subsections (2) and (3) for the words from “the provisions of section 38” to the end, substitute—

“the Council may do any of the things mentioned in subsection (3A)”;

(b) after subsection (3), insert—

“(3A) The things are to—

(a) require the production or delivery to any person appointed by the Council at a time and a place fixed by them of the documents mentioned in subsection (3B);

(b) take possession of all such documents; and

(c) apply to the court for an order that no payment be made by any banker, building society or other body named in the order out of any banking account or any sum deposited in the name of the solicitor or his firm without the leave of the court and the court may make such order.

(3B) The documents are—

(a) all books, accounts, deeds, securities, papers and other documents in the possession or control of the solicitor or his firm;

(b) all books, accounts, deeds, securities, papers and other documents relating to any trust of which he is a sole trustee or is a co-trustee only with one or more of his employees.”;

(c) after subsection (4), insert—

“(4A) Part II of Schedule 3 has effect in relation to the powers of the Council under subsection (2) or (3).”.>

Hugh Henry

349 In schedule 4, page 45, line 33, at end insert—

<( ) In section 53 (power of Tribunal to fine for professional misconduct etc.)—

(a) after subsection (3), insert—

“(3ZA) The Tribunal shall not impose a fine under subsection (2)(c)—

(a) where the Tribunal is proceeding on the ground referred to in subsection (1)(a), (c) or (d) and the solicitor or, as the case may be, the incorporated practice, in relation to the subject matter of the Tribunal’s inquiry, has been convicted by any court of an act involving dishonesty and sentenced to a term of imprisonment of not less than 2 years;

(b) where the Tribunal is proceeding on the ground referred to in subsection (1)(b).”;

(b) after subsection (8), insert—

“(8A) The powers of the Tribunal under paragraph (bb) of subsection (2), and subsection (3ZA), apply to any element of a decision of the Tribunal which does not relate to the provision of advice, services or activities referred to in section 47(2) of the 2006 Act.

(8B) Subsection (3) does not apply to any element of a decision of the Tribunal to which paragraph (bb) of subsection (2), and subsection (3ZA), apply.”.>

Hugh Henry

350 In schedule 4, page 45, line 33, at end insert—

<( ) In section 53D (suspension etc. of investment business certificates: appeal to Tribunal), for subsection (3) substitute—

“(2A) The solicitor, firm of solicitors or, as the case may be, the incorporated practice may, before the expiry of the period of 21 days beginning with the day on which the decision of the Tribunal under subsection (2) is intimated to him or, as the case may be, it, appeal to the court against the decision.

(2B) The Council may, before the expiry of the period of 21 days beginning with the day on which the decision of the Tribunal under subsection (2) is intimated to them, appeal to the court against the decision.

(2C) On an appeal under subsection (2A), 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.

(2D) A decision of the court under subsection (2C) shall be final.”.>

Hugh Henry

351 In schedule 4, page 45, line 33, at end insert—

<( ) In section 55 (powers of court), after subsection (7) (as inserted by section 38(1A)(b) of this Act), insert—

“(8) The power under paragraph (bc) of subsection (1) applies to any element of a decision of the court which does not relate to the provision of advice, services or activities referred to in section 47(2) of the 2006 Act.”.>

Hugh Henry

352 In schedule 4, page 45, line 33, at end insert—

<( ) In section 62A(2) (Council’s power to recover expenses under section 38, 45 or 46), after the words “38” insert “, 45 or 46”.>

Hugh Henry

353 In schedule 4, page 46, line 10, at end insert—

<( ) In Schedule 3, Part II (power of Council to investigate), in paragraph 5(1), (2) and (3), after the words “section 38” in each place where they occur insert “, 45 or 46”.>

Hugh Henry

354 In schedule 4, page 46, leave out lines 13 to 24

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