Back to the Scottish Parliament Business Bulletin No. 91/2010: Tuesday 1 June 2010
Archive Home

Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

Contents An A B C D E F G H I J

Section G – Bills

New Bills introduced or reprinted on 27 May 2010

Domestic Abuse (Scotland) Bill—A Bill for an Act of the Scottish Parliament to amend the Protection from Harassment Act 1997 by making provision in relation to harassment amounting to domestic abuse; to amend the Legal Aid (Scotland) Act 1986 by making provision in relation to eligibility for, and the making of contributions towards, civil legal aid in certain proceedings arising from domestic abuse; to make breach of an interdict relating to domestic abuse with a power of arrest attached an offence; and for connected purposes. (SP Bill 45) (Member’s Bill)

Introduced by: Rhoda Grant

Explanatory Notes (and other accompanying documents) (SP Bill 45-EN) and a Policy Memorandum (SP Bill 45-PM) were printed to accompany the Bill.

Commissioner for Victims and Witnesses (Scotland) Bill—A Bill for an Act of the Scottish Parliament to provide for the establishment and functions of a Commissioner for Victims and Witnesses; and for connected purposes. (SP Bill 46) (Member’s Bill)

Introduced by: David Stewart

Explanatory Notes (and other accompanying documents) (SP Bill 46-EN) and a Policy Memorandum (SP Bill 46-PM) were printed to accompany the Bill.

New amendments to Bills lodged on 27 May 2010

Legal Services (Scotland) Bill – Stage 2

Section 4

Nigel Don

97 In section 4, page 2, line 28, after <as> insert <reasonably>

Section 10

Fergus Ewing

98 In section 10, page 7, line 15, leave out <outside> and insert <non-solicitor>

Fergus Ewing

99 In section 10, page 7, line 22, at end insert—

<( ) See also sections 43(6)(b), 45(3A), 49(2), (Exemption from fitness test)(3) and 52(2)(b) and paragraph 3A(2) of schedule 8 (as well as sections 11 and 12).>

Section 14

Fergus Ewing

100 In section 14, page 9, line 13, at end insert—

<( ) See also sections 43(6)(a), 45(4) and (Ban for improper behaviour)(4) (as well as sections 15 to 19).>

Section 17

Fergus Ewing

101 In section 17, page 10, line 9, leave out <outside> and insert <non-solicitor>

Section 45

Fergus Ewing

102 In section 45, page 25, line 12, at end insert—

<(3A) Licensing rules must provide that the licensed provider’s licence may be revoked or suspended if the licensed provider wilfully disregards a disqualification imposed under section 44.>

Section 49

Fergus Ewing

103 In section 49, page 27, line 19, leave out <outside> and insert <non-solicitor>

Fergus Ewing

104 In section 49, page 27, line 22, leave out from <may> to <but> in line 23

Fergus Ewing

105 In section 49, page 27, line 24, leave out <an outside> and insert <a non-solicitor>

Fergus Ewing

106 In section 49, page 27, line 29, at end insert—

<( ) But the approved regulator need not act as required by licensing rules made under subsection (2)(b) if, by such time as it may reasonably appoint, the licensed provider demonstrates to it that (following disqualification as required by section (Ban for improper behaviour)(1) or otherwise) the investor no longer has the relevant interest.>

Fergus Ewing

107 In section 49, page 27, line 31, leave out <outside> and insert <non-solicitor>

After section 49

Fergus Ewing

108 After section 49, insert—

<Exemption from fitness test

(1) Section 49(1) is subject to this section.

(2) The approved regulator need not act as required by that section in relation to any exemptible investor in the licensed provider.

(3) Licensing rules must explain—

(a) any circumstances in which the approved regulator proposes to rely on subsection (2),

(b) any threshold below the percentage specified in subsection (4) by reference to which it proposes to rely on subsection (2),

(c) where it proposes to rely on subsection (2), its reasons.

(4) In subsection (2), an "exemptible investor" is an investor who has less than a 10% stake in the total ownership or control of the licensed provider.>

Section 50

Fergus Ewing

109 In section 50, page 28, line 3, leave out <an outside> and insert <a non-solicitor>

Fergus Ewing

110 In section 50, page 28, line 7, leave out <(including associations),> and insert—

<( ) family, business or other associations (so far as bearing on character),>

Fergus Ewing

111 In section 50, page 28, line 18, leave out <An outside> and insert <A non-solicitor>

Fergus Ewing

112 In section 50, page 29, line 5, leave out subsection (4)

Fergus Ewing

113 In section 50, page 29, line 10, at end insert—

<( ) Where a non-solicitor investor is a body, it is relevant as respects the investor’s fitness for having an interest in a licensed provider whether or not the persons controlling the body’s affairs would (if they were investors in the licensed provider in their own right) be held to be fit in that regard.>

After section 50

Fergus Ewing

114 After section 50, insert—

<Ban for improper behaviour

(1) Where an approved regulator determines that a non-solicitor investor in a licensed legal services provider has contravened section 51(1) or (2), the approved regulator must disqualify the investor from having an interest in the licensed provider.

(2) A disqualification under subsection (1)—

(a) may be—

(i) without limit of time, or

(ii) for a fixed period,

(b) extends so as to apply in relation to every licensed provider (including a licensed provider that is subject to the regulation of a different approved regulator).

(3) Before disqualifying an investor under subsection (1), the approved regulator must give the investor 28 days (or such longer period as it may allow) to—

(a) make representations to it,

(b) take such steps as the investor may consider expedient.

(4) Practice rules must—

(a) set procedure (which the approved regulator is to follow) for imposing a disqualification under subsection (1),

(b) allow for review (and lifting) by the approved regulator of a disqualification imposed by it under that subsection.

(5) A person who is disqualified under subsection (1) may appeal against the disqualification—

(a) to the sheriff,

(b) within the period of 3 months beginning with the date on which the disqualification is imposed.>

Section 51

Fergus Ewing

115 In section 51, page 29, line 14, leave out <An outside> and insert <A non-solicitor>

Fergus Ewing

116 In section 51, page 29, line 21, leave out <An outside> and insert <A non-solicitor>

Fergus Ewing

117 In section 51, page 29, line 22, after <interfere> insert <improperly>

Section 52

Fergus Ewing

118 In section 52, page 30, line 9, leave out subsection (3)

Fergus Ewing

119 In section 52, page 30, line 12, after <has> insert <(to any extent)>

Fergus Ewing

120 In section 52, page 30, leave out lines 15 to 18 and insert—

<(b) a "non-solicitor investor" in a licensed provider is an investor who is not entitled to practise—

(i) as a solicitor,

(ii) in England and Wales or Northern Ireland, as a solicitor (outwith the meaning for this Act), or

(iii) as a registered European lawyer,

(c) a reference to a "solicitor investor" is to be construed accordingly.>

Schedule 8

Fergus Ewing

121 In schedule 8, page 76, line 14, leave out <outside> and insert <non-solicitor>

Fergus Ewing

122 In schedule 8, page 76, line 23, leave out <outside> and insert <non-solicitor>

Fergus Ewing

123 In schedule 8, page 76, line 24, leave out <an outside> and insert <a non-solicitor>

Fergus Ewing

124 In schedule 8, page 76, line 37, leave out <an outside> and insert <a non-solicitor>

Fergus Ewing

125 In schedule 8, page 77, line 1, leave out <an outside> and insert <a non-solicitor>

Fergus Ewing

126 In schedule 8, page 77, line 4, leave out <an outside> and insert <a non-solicitor>

Fergus Ewing

127 In schedule 8, page 77, line 4, leave out <(including>

Fergus Ewing

128 In schedule 8, page 77, leave out lines 6 and 7 and insert—

<(ii) because the person, having ceased to be entitled to practise as mentioned in section 52(4)(b), no longer comes within the definition there (while remaining as an investor).>

Fergus Ewing

129 In schedule 8, page 77, line 12, leave out <(1)(c)> and insert <(1)(c)(i)>

Fergus Ewing

130 In schedule 8, page 77, line 14, at end insert—

<(3A) In a case falling within sub-paragraph (1)(c)(ii), the licensed provider must (as soon as practicable) notify the approved regulator of the fact.>

Fergus Ewing

131 In schedule 8, page 77, line 18, leave out <or (3)> and insert <, (3) or (3A)>

Fergus Ewing

132 In schedule 8, page 77, line 23, at end insert—

<Exemption from notification requirements

3A (1) An approved regulator may in relation to any exemptible investor in a licensed provider waive the requirements to give it information (or notification) under paragraphs 1 and 3.

(2) Licensing rules must explain—

(a) any circumstances in which the approved regulator proposes to rely on sub-paragraph (1),

(b) any threshold below the percentage specified in subsection (3) by reference to which it proposes to rely on sub-paragraph (1),

(c) where it proposes to rely on sub-paragraph (1), its reasons.

(3) In sub-paragraph (1), an "exemptible investor" is (as the case may be)—

(a) an investor who has less than a 10% stake in the total ownership or control of the licensed provider, or

(b) a person whose intended acquisition of an interest in the licensed provider is of less than a 10% stake in the total ownership or control of the licensed provider.>

Section 64

Fergus Ewing

133 In section 64, page 37, line 10, at end insert—

<(A1) Any complaint about an approved regulator is to be made to the Scottish Legal Complaints Commission.

(A2) The Commission is to determine whether or not the complaint is—

(a) one for which section 57D(1) of the 2007 Act makes provision,

(b) frivolous, vexatious or totally without merit.

(A3) And—

(a) if the Commission determines that the complaint falls within subsection (A2)(a), the Commission is to proceed by reference to section 57D(1) of the 2007 Act,

(b) if the Commission determines that the complaint falls within subsection (A2)(b), the Commission—

(i) must notify the complainer and the approved regulator accordingly (with reasons),

(ii) is not required to take any further action.

(c) if the Commission determines that the complaint does not fall within subsection (A2)(a) or (b), the Commission must refer the complaint to the Scottish Ministers.>

Fergus Ewing

134 In section 64, page 37, line 11, leave out <made to them about an approved regulator> and insert <about an approved regulator that is referred to them under subsection (A3)(c)>

Fergus Ewing

135 In section 64, page 37, line 13, leave out subsection (2)

Fergus Ewing

136 In section 64, page 37, leave out line 19

Fergus Ewing

137 In section 64, page 37, line 21, leave out subsection (4)

Fergus Ewing

138 In section 64, page 37, line 26, leave out <Scottish Legal Complaints>

Fergus Ewing

139 In section 64, page 37, line 27, at end insert <(and, if they so delegate their function under subsection (1), they may also waive the referral requirement under subsection (A3)(c))>

After section 64

Fergus Ewing

140 After section 64, insert—

<Levy payable by regulators

(1) An approved regulator must pay to the Scottish Legal Complaints Commission—

(a) in respect of each financial year, an annual levy,

(b) if arising, a complaints levy.

(2) The amount of the annual levy or complaints levy payable by an approved regulator—

(a) is to be determined by the Commission,

(b) may be—

(i) different from any amount payable as an annual general levy or (as the case may be) a complaints levy under Part 1 of the 2007 Act,

(ii) in either case, of different amounts (including nil) in different circumstances.

(3) The complaints levy arises as respects an approved regulator where—

(a) the Scottish Ministers delegate to the Commission their function under section 64(1) in relation to a complaint made about the approved regulator, and

(b) the Commission upholds the complaint.

(4) Before determining for a financial year the amount of the annual levy or complaints levy, the Commission must consult—

(a) each approved regulator (with particular reference to the proposed amount to be payable by it),

(b) the Scottish Ministers.>

Section 65

Fergus Ewing

141 In section 65, page 39, line 2, at end insert—

<(1A) Section 29 applies for the purposes of subsection (1) as it applies for the purposes of sections 27(1) and 28(1).

(1B) For the application of sections 27(1), 28(1) and 29 by virtue of subsections (1) and (1A)—

(a) an approved regulator is to be regarded as a relevant professional organisation whose members are its licensed providers,

(b) a licensed provider is to be regarded—

(i) in connection with the annual general levy, as an individual person falling within the relevant category,

(ii) in connection with the complaints levy, as an individual practitioner of the relevant type.>

Fergus Ewing

142 In section 65, page 39, line 3, at beginning insert <But>

Fergus Ewing

143 In section 65, page 39, line 12, at end insert—

<57CA Recovery of levy

(1) An approved regulator must—

(a) secure the collection by it, from its licensed providers, of the annual general levy due by them, and

(b) pay to the Commission a sum representing the total amount which falls to be collected by it under paragraph (a) in respect of each financial year.

(2) Subsection (3) of section 27 applies in relation to any sum due under subsection (1)(b) (including interest) as its applies in relation to any sum due under subsection (2)(b) of section 27.

(3) Subsection (4) of section 27 applies in relation to any sum due under section 57C(1)(a) (including interest) as its applies in relation to any sum due under subsection (1) of section 27.

(4) Subsection (3) of section 28 applies in relation to any sum due under section 57C(1)(b) (including interest) as its applies in relation to any sum due under subsection (1) of section 28.

(5) For the application of sections 27(3) and (4) and 28(3) by virtue of subsections (2) to (4)—

(a) the approved regulator is to be regarded as the relevant professional organisation,

(b) each of its licensed providers is to be regarded—

(i) in relation to section 27(4), as an individual person falling within the relevant category,

(ii) in relation to section 28(3), as an individual practitioner of the relevant type.

(6) Section 57C(1) is subject to subsection (1).>

Fergus Ewing

144 In section 65, page 39, line 24, at end insert—

<"professional principles",

"regulatory objectives",>

Section 67

Fergus Ewing

145 In section 67, page 40, line 12, leave out <outside> and insert <non-solicitor>

Section 68

Fergus Ewing

146 In section 68, page 41, line 15, leave out <an outside> and insert <a non-solicitor>

Fergus Ewing

147 In section 68, page 41, line 15, at end insert <, or

( ) disqualified under section (Ban for improper behaviour)(1) (that is, from having an interest in a licensed provider).>

Fergus Ewing

148 In section 68, page 41, line 20, at end insert <or (as the case may be) disqualification>

Fergus Ewing

149 In section 68, page 41, line 21, at end insert <or (as the case may be) disqualification>

Fergus Ewing

150 In section 68, page 41, line 21, at end insert—

<( ) A list kept under this section must not include information relating to a person in respect of whom the determination or (as the case may be) disqualification—

(a) has been reversed on appeal, or

(b) otherwise, no longer applies.>

Section 74

Fergus Ewing

151 In section 74, page 43, line 27, at end insert <(any of which may be removed or varied by the Scottish Ministers after consulting the approving body)>

Fergus Ewing

152 In section 74, page 43, line 38, after <must> insert <, with reasons,>

Fergus Ewing

153 In section 74, page 44, line 11, at beginning insert <in relation to capability to act as an approving body,>

Fergus Ewing

154 In section 74, page 44, leave out line 13

Section 76

Fergus Ewing

155 In section 76, page 45, line 26, leave out from <approving body> to end of line 27 and insert <Scottish Ministers (but the approving body may collect it on their behalf).>

After section 76

Fergus Ewing

156 After section 76, insert—

<Review of own performance

(1) An approving body must review annually its performance.

(2) In particular, a review is to cover the following matters—

(a) the approving body’s compliance with section 75(5),

(b) the exercise of its functions in relation to its regulatory scheme,

(c) its compliance with any measures applying to it by virtue of section 81(3).

(3) The approving body must send a report on the review to the Scottish Ministers.

(4) The report must contain a copy of the approving body’s annual accounts (but only so far as they are relevant in connection with its functions under this Chapter).

(5) The Scottish Ministers must lay a copy of the report before the Scottish Parliament.

(6) The Scottish Ministers may by regulations make further provision about—

(a) the review of approved bodies’ performance,

(b) reports on reviews of their performance.>

Section 77

Fergus Ewing

157 In section 77, page 46, line 1, after <implying> insert <falsely>

Fergus Ewing

158 In section 77, page 46, line 2, after <otherwise> insert <so>

Section 81

Fergus Ewing

159 In section 81, page 48, line 8, leave out subsection (4) and insert—

<(4) An approving body must—

(a) review annually the performance of its confirmation agents,

(b) prepare a report on the review,

(c) send a copy of the report to the Scottish Ministers.>

Fergus Ewing

160 In section 81, page 48, line 12, leave out from <about> to <(b)> in line 14 and insert—

<(a) about the review of confirmation agents,

(b) so far as it appears to them to be necessary for safeguarding the interests of clients of confirmation agents—

(i) concerning the functions of approving bodies,

(ii) relating to>

Section 83

Fergus Ewing

161 In section 83, page 49, leave out line 19

After section 84

Fergus Ewing

162 After section 84, insert—

<Appeal procedure

(1) This section applies in relation to an appeal to the sheriff under this Part.

(2) The appeal is to be made by way of summary application.

(3) In the appeal, the sheriff may—

(a) uphold, vary or quash the decision that is the subject of the appeal,

(b) make such further order (including for the expenses of the parties) as is necessary in the interests of justice.

(4) The sheriff’s determination in the appeal is final.>

Section 85

Fergus Ewing

163 In section 85, page 49, line 33, leave out <of the 1980 Act>

Fergus Ewing

164 In section 85, page 49, line 35, leave out <Legal Services (Scotland) Act 2010> and insert <2010 Act>

Fergus Ewing

165 In section 85, page 50, line 1, leave out <Legal Services (Scotland) Act 2010> and insert <2010 Act>

Section 99

Fergus Ewing

166 In section 99, page 59, line 3, leave out <81(5)> and insert <81(5)(b)>

Schedule 9

Fergus Ewing

167 In schedule 9, page 80, line 9, leave out <outside> and insert <non-solicitor>

Fergus Ewing

168 In schedule 9, page 80, line 17, after <and> insert <confirmation>

Contents An A B C D E F G H I J