Back to the Scottish Parliament Business Bulletin No. 143/2010: Friday 1 October 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

Business Bulletin:

Section G – Bills

Bill accompanying documents printed on 30 September 2010

Legal Services (Scotland) Bill—Revised Explanatory Notes (SPBill 30A–EN) were printed.

New amendments to Bills lodged on 30 September 2010

Children's Hearings (Scotland) Bill - Stage 2

Section 97

Ken Macintosh

369 In section 97, page 34, line 5, after <authority> insert—

<(ii) a health board, or

(iii) another agency,>

Housing (Scotland) Bill – Stage 2

After section 132

Mary Mulligan

167 After section 132, insert—

<Landlord registration numbers

(1) In section 84 of the 2004 Act, after subsection (5) insert—

"(5A) In entering a landlord into the register under subsection (2)(a), the local authority shall allocate an individual registration number to each registered landlord"

(2) In section 86 of the 2004 Act, after subsection (1) insert—

"(1A) In giving notice of registration under subsection (1)(a), the local authority shall, in doing so, give notice of the landlord’s registration number.".>

After section 134

Mary Mulligan

168 After section 134, insert—

<Landlord registration numbers in advertisements

After section 92A of the 2004 Act, insert—

"92B Duty of registered landlord to include registration number in advertisement

(1) Where a registered landlord advertises a house with the purpose of seeking tenants to enter in to a lease or occupancy arrangement, the advertisement must include the landlord’s registration number.

(2) In this section "advertisement" means any form of advertising, by any means of written communication, which is publically available or has been communicated to individual persons.".>

After section 138

Mary Mulligan

169 After section 138, insert—

<Information to be obtained by the private rented housing panel

After section 22 of the 2006 Act, insert—

"22A Information to be given to local authority

On receipt of an application under section 22(1), the private rented housing panel must obtain and provide the landlord’s registration number to the local authority for the area in which the house concerned is situated for the purpose of maintaining the register under section 82(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8).".>

Before section 143

Mary Mulligan

170 Before section 143, insert—

<Allocation of housing: local connection

In section 20 of the Housing (Scotland) Act 1987 (c.26)—

(1) After subsection (1)(a)(iii) insert—

"(iiia) have a local connection to the area; or".

(2) After subsection (1) insert—

"(1A) In the application of subsection (1)(a)(iiia), a person’s "local connection" to the area means the person—

(a) is residing and has resided in that area continuously for at least 3 years prior to being selected as a tenant;

(b) is employed, or has been offered employment in that area; or

(c) has a relative in that area.

(1B) In subsection (1A)(c) "relative" means—

(a) parent, child, grandparent, grandchild, great grandparent or great grandchild (whether by blood or by adoption);

(b) brother, sister, uncle, aunt, nephew, niece, great uncle, great aunt, great nephew or great niece (whether of the full or half blood or by adoption);

(c) spouse or any person related to a spouse in any of the ways set out above;

(d) civil partner or any person related to a civil partner in any of the ways set out in paragraphs (a) to (c).".

(3) In subsection (2)(a)(i) after "area" insert "except in the application of subsection (1)(a)(iiia)".>

After section 143

Jim Tolson

171 In substitution for amendment 145—

After section 143, insert—

<Vacant dwellings: use of information obtained for council tax purposes

(1) In paragraph 18A(1) of schedule 2 to the Local Government Finance Act 1992 (c.14)—

(a) for "A billing" substitute "An",

(b) after "Part 1" insert "or Part 2".

(2) In section 129(8)(a) of the Local Government Act 2003 (c.26), the word "85," is repealed.>

Legal Services (Scotland) Bill – Stage 3

Section 5

Richard Baker

121 In section 5, page 4, line 6, leave out subsection (5) and insert—

<(5) No more than 3 approved regulators may exist at any time.

(5A) The Scottish Ministers may—

(a) with the agreement of the Lord President, and

(b) after consulting such other person or body as they consider appropriate,

by regulations amend the number specified in subsection (5).>

After section 19

Robert Brown

27A As an amendment to amendment 27, line 6, at end insert—

<( ) Subsection (1A) does not apply where the approved regulator is the Law Societyas respects its licensed providers but section 43 of, and Part 1 of Schedule 3 to, the 1980 Act apply to those licensed providers by virtue of section 43(20(c) of that Act.>

Robert Brown

27B As an amendment to amendment 27, line 21, leave out subsection (6) and insert—

<( ) An approved regulator must—

(a) decide which of Options A and B to proceed with as respects its licensed providers,

(b) if it decides to proceed with Option A, set up its compensation fund, and

(c) notify the Law Society of those decisions and of the details of any such compensation fund before licensing any entity as a licensed legal services provider under section 36.>

Robert Brown

28A As an amendment to amendment 28, line 24, at end insert—

<( ) Where the Law Society is the approved regulator it must make rules requiring its licensed providers to make contributions to the Guarantee Fund in accordance with paragraph 1(2B)(b) and (3) of Schedule 3 to the 1980 Act.>

Section 35

Robert Brown

Supported by: James Kelly

122 In section 35, page 19, line 15, after <(2)> insert—

<( ) without the Lord President’s agreement,

( )>

Section 37A

Richard Baker

46A As an amendment to amendment 46, line 1, leave out from <<the> to end of line 5 and insert—

<(a) solicitor investors have (taken together) at least a 51% (but not a 100%) stake in the total ownership or control of the entity, and

(b) non-solicitor investors who are not members of another regulated profession have (taken together) no more than a 25% stake in the total ownership or control of the entity.>

Richard Baker

46B As an amendment to amendment 46, line 6, leave out <(1A)(b)> and insert <(1)(b)>

Richard Baker

46C As an amendment to amendment 46, line 9, leave out <(1A)(b)> and insert <(1)(b)>

Fergus Ewing

46D As an amendment to amendment 46, line 10, leave out <may by regulations> and insert—

<( ) are by regulations to>

Fergus Ewing

46E As an amendment to amendment 46, line 12, after <profession,> insert—

<( ) may by regulations specify in connection with those subsections what is, or is not, to be regarded as>

Fergus Ewing

46F As an amendment to amendment 46, line 13, at end insert—

<( ) Before making regulations under subsection (1C), the Scottish Ministers must—

(a) have the Lord President’s agreement, and

(b) consult—

(i) the Law Society,

(ii) every approved regulator,

(iii) the OFT, and such other organisation (appearing to them to represent the interests of consumers in Scotland) as they consider appropriate,

(iv) such other person or body as they consider appropriate.>

Robert Brown

123 In section 37A, page 21, leave out lines 9 to 22 and insert <solicitor investors have (taken together) at least a 51% stake (but not a 100% stake) in the total ownership or control of the entity.>

Section 47

Bill Aitken

Supported by: James Kelly

124 In section 47, page 29, line 6, leave out <carry out legal work> and insert <provide legal services>

Bill Aitken

Supported by: James Kelly

125 In section 47, page 29, line 11, at end insert <not disqualified under section 44(2), (3)(a), (4), (5)(a), (6)(a) or (6)(b) and is>

Bill Aitken

Supported by: James Kelly

126 In section 47, page 29, line 11, at end insert—

<( ) a solicitor, an advocate, a conveyancing or executry practitioner, or other such person having the appropriate qualifications and experience to provide legal services and is either—>

Bill Aitken

Supported by: James Kelly

127 In section 47, page 29, line 17, leave out <work> and insert <services>

Section 50

Bill Aitken

Supported by: James Kelly

128 In section 50, page 32, line 1, after <dishonesty> insert <or violence>

Section 54

Bill Aitken

129 In section 54, page 35, line 4, after <delay> insert <and no later than 7 days after an event referred to in subsection (1)>

Bill Aitken

130 In section 54, page 35, line 13, at end insert—

<( ) Where within 28 days of subsection (1) first applying to a licensed provider subsection (1) no longer applies and—

(a) having complied with subsection (2),

(b) the licensed provider satisfies the approved regulator that subsection (1) no longer applies,

the licensed provider will continue to be licensed or, as the case may be, have its licence reinstated.>

Section 65

Bill Aitken

Supported by: James Kelly

131 In section 65, page 43, line 2 after <provider> insert <and, for this purpose, a practitioner includes a designated person within the meaning of section 37A(3)>

Bill Aitken

Supported by: James Kelly

132 In section 65, page 45, line 11, at end insert—

<"designated person",>

After section 85

Richard Baker

133 After section 85, insert—

<Regulation of estate administrators

(1) The Scottish Ministers may by regulations make provision in relation to estate administrators which is equivalent to the provision made in relation to confirmation agents by Chapter 1 of this Part (whether by amending that Chapter to include reference to estate administrators or otherwise).

(2) For the purposes of this section, an estate administrator is a person who provides services (other than the services mentioned in section 72(2)) relating to the administration of the estate of a deceased person (for example, investigating and establishing the assets and liabilities contained within the estate of a deceased person, establishing the executors’ title to the deceased person’s assets, administering and handling the assets of a deceased person or accounting for the executors’ receipts and payments with the deceased person’s assets).>

After section 91

Bill Aitken

134 After section 91, insert—

<Practice rules: registered firms of solicitors

(1) In section 34(1A) of the 1980 Act—

(a) after paragraph (e)(ii) insert—

"(iia)that any recognition granted under this section shall have effect from the date it bears but shall expire on 31 October next after it is issued;"

(b) paragraph (e)(iii) is repealed

(2) After section 34(1A) (Rules as to professional practice etc) of the 1980 Act insert—

"(1AA) Rules under this section may make provision requiring firms of solicitors to register with the Council and providing for their regulation and subsection (1A) shall apply for the purpose of regulating and registering such firms as it applies for the purpose of regulating and recognising incorporated practices, subject to any necessary modifications (and firms of solicitors when registered and for as long as they are registered are in this Act referred to as "registered firms of solicitors").

(1AB) In subsection (1AA), a "firm of solicitors" includes—

(a) a single solicitor practising under the solicitor’s own name; and

(b) a solicitor otherwise practising as a sole practitioner."

(3) In section 65(1) of the 1980 Act, after the definition of "registered European lawyer" insert—

""Registered firms of solicitors" shall be construed in accordance with section 34(1AA);"

(4) In schedule 1 (The Law Society of Scotland), after paragraph 6A insert—

"6B (1) Every practice shall, for each year, pay to the Society such subscription as may be fixed from time to time by the Society in general meeting and different subscriptions may be fixed for the different kinds of practices.

(2) The subscription shall be payable by the practice at the time of its application for registration or recognition.

(3) If a practice is first registered or recognised after the beginning of any year, the subscription payable by it shall be calculated by reference to the number of months remaining in that year after it is registered or recognised.

(4) In this paragraph and in paragraph 6C,

"practice" means a registered firm of solicitors or an incorporated practice; and

"year" means the period of 12 months commencing on 1 November or such other day as may be fixed by the Council.

6C (1) The Society may, in addition to the subscription imposed in paragraph 6B(1), impose in respect of any year a special subscription on all practices of such amount and payable at such time and for such specified purposes as the Society may determine in general meeting.

(2) The Society may determine in general meeting that different special subscriptions may be imposed under sub-paragraph (1) in respect of different kinds of practices or that the special subscription shall not be payable by a kind of practice.

(3) No imposition may be made under sub-paragraph (1) unless a majority of members voting at the general meeting at which it is proposed has, whether by proxy or otherwise, voted in favour of its being made.">

Section 91D

Bill Aitken

Supported by: James Kelly

135 In section 91D, page 71, leave out lines 22 to 25 and insert—

<"(cd) to a licensed provider or any investor or person who owns, manages or controls or is within the licensed provider in respect of a loss suffered by it or any such person in connection with the licensed provider’s provision of legal services by reason of dishonesty on the part of any such persons;";>

Bill Aitken

Supported by: James Kelly

136 In section 91D, page 71, line 25, at end insert—

<( ) in the word "or" immediately preceding paragraph (g) is repealed,

( ) after paragraph (g) insert "; or

(h) in respect of any default of a licensed legal services provider or any person within it unless the Council is satisfied that the provider and any investor in it and any person who owns, manages or controls it shall have submitted to the Council an irrevocable undertaking it or they will, jointly and severally (as the case may be), reimburse to the Society the amount of any grants and that to the extent to which the Society is unable to recover that amount from that provider or any liquidator, administrator or trustee in bankruptcy of it.">

Bill Aitken

137 In section 91D, page 71, line 32, at end insert—

<(8A) In the case where the Council is not the approved regulator of the licensed legal services provider and without prejudice to any action which that approved regulator may take, the Council may take such action to—

(a) enable the Council to ascertain—

(i) whether the rules made under section 18 of the 2010 Act are being complied with by that provider; and

(ii) whether any provider which has failed to comply with those rules has remedied that failure and is complying with those rules; and

(b) recover from that provider any costs incurred by the Council in so doing as the Council may take in relation to a licensed legal services provider regulated by them in accordance with account rules made under section 35.>

Section 91E

Bill Aitken

Supported by: James Kelly

138 In section 91E, page 72, line 7, after "providers" insert <, or—

(c) partners in a registered firm of solicitors, or

(d) in a case where the registered firm of solicitors is a sole practitioner, a single solicitor practising under the solicitor’s own name or a solicitor otherwise practising as a sole practitioner.".>

Bill Aitken

Supported by: James Kelly

139 In section 91E, page 72, line 33, at end insert—

<( ) In Schedule 3 to the 1980 Act, paragraph 1—

(a) after sub-paragraph (2B) insert—

"(2BB) Subject to the provisions of this Act, there shall be paid to the Society on behalf of the Guarantee Fund by every registered firm of solicitors in respect of each year during which, or part of which, it is registered under section 34(1AA) a contribution (hereafter referred to as an "annual practice contribution") in accordance with the relevant scale of such contributions referred to in sub-paragraph (3B).",

(b) in sub-paragraph (3), after "corporate contributions" insert "and the annual practice contributions",

(c) after sub-paragraph (3) insert—

"(3B) The scales of annual practice contributions—

(a) are to be fixed by reference to all relevant factors including the number of solicitors who are partners, members or employees of the registered firm of solicitors; and

(b) may make different provision for different classes of registered firms of solicitors.",

(d) in sub-paragraph (4), after "provider" insert "and no annual practice contribution by a registered firm of solicitors".

(e) in sub-paragraph (5)—

(i) the words from "every" where it first occurs to "upon" where it second occurs become sub-sub paragraph (a),

(ii) the words from "upon" where it second occurs to "contribution")" become sub-sub-paragraph (b),

(iii) after "contribution")" insert—

"(c) every registered firm of solicitors a contribution (hereafter referred to as a "special practice contribution"),

(iv) after "scale" insert "or scales",

(v) for the word "(3)" substitute "(3A) and (3B)", and

(vi) after "contribution" where it second occurs insert—

"(d) and a special practice contribution",

(f) in sub-paragraph (8), after "provider" insert "or of a registered firm of solicitors".>

Section 91G

Bill Aitken

140 In section 91G, page 73, line 22, at end insert—

<( ) act as a body within the meaning of Chapters 1 and 2 of Part 3 of the 2010 Act; and>

After section 91G

Bill Aitken

141 After section 91G, insert—

<Membership of the Society

(1) In section 2 (membership of the Society) of the 1980 Act—

(a) in subsection (2)—

(i) after "Society" insert—

"(a) any solicitor who by virtue of section 24 is exempted from taking out a practising certificate;

(b)",

(ii) the words from "on" to "determine" are repealed,

(b) after subsection (2) insert—

"(2A) The Council may admit as an honorary member of the Society any solicitor who has ceased to hold a practising certificate but no such honorary member is to be entitled to vote at meetings of the Society or to pay an annual subscription.

(2B) The Council may admit as an associate member of the Society on such terms and conditions as they may determine (including payment of an annual subscription)—

(a) any solicitor who is not otherwise a member of the Society,

(b) any student or graduate of a law course at a university or other person who appears to them to have legal qualifications or experience,

provided that, in any case, the Council considers that solicitor or person to be a fit and proper person to be admitted as an associate member of the Society.

(2C) Without prejudice to any power which the Council may have, the Council may—

(a) create different classes of membership of the Society and, in particular, may distinguish between practising and non-practising members,

(b) determine any terms, conditions, rights and obligations of membership of each class including, in particular, the annual subscription payable by members of each class (subject to the exception for honorary members),

and different provision may be made for each class.".

(2) In Schedule 1 (constitution and proceedings)—

(a) in paragraph 2, before head (a) insert—

"(za) the constitution, membership and classes of members, management and proceedings of the Society;"

(b) in paragraph 3—

(i) heads (a) and (b) are repealed; and

(ii) in head (c), after "contain" insert ", or may authorise the Council to make standing orders which contain,".>

Section 92

Bill Aitken

142 In section 92, page 73, line 34, leave out <solicitor members to the Council> and insert <members of the Society who are solicitors to be "solicitor members of the Council">

Bill Aitken

143 In section 92, page 73, line 35, leave out <non-solicitor members to the Council> and insert <persons who are not members of the Society and who satisfy paragraph 3A(3) to be "non-solicitor members of the Council">

Bill Aitken

144 In section 92, page 74, leave out lines 1 and 2

Section 93

Bill Aitken

145 In section 93, page 74, line 24, leave out <(acting in any other capacity)>

Robert Brown

146 In section 93, page 74, line 25, at end insert—

<( ) Subsection (2A) does not prevent the Council setting performance targets, standards and timescales for the conduct of the work of the regulatory committee.>

Robert Brown

147 In section 93, page 74, line 25, at end insert—

<( ) Subsection (2A) does not prevent the Council removing a member of the regulatory committee from office as such if the member—

(a) becomes insolvent,

(b) has been absent from meetings of the committee without permission for longer than 6 consecutive months,

(c) has been convicted of an offence, or

(d) is otherwise unable or unfit to discharge the functions of a member of the committee.>

Robert Brown

148 In section 93, page 74, line 33, leave out from <committee> to end of line and insert <Council is to appoint one of its non-solicitor members as convener of the committee,>

Bill Aitken

149 In section 93, page 74, line 35, insert—

<( ) the committee may arrange for any of its functions to be discharged by a sub-committee of it,>

After section 94A

Bill Aitken

150 After section 94A, insert—

<Powers of the Law Society

After paragraph 11A of Schedule 1 (Law Society of Scotland) to the 1980 Act insert—

"(1) For the avoidance of doubt, the Council may, in accordance with a scheme of charges fixed from time to time by it, charge such fees as it may determine in respect of the discharge of the Society’s functions.

(2) The Council may fix charges in a scheme under sub-paragraph (1) by reference to such matters, and may adopt such methods and principles for the calculation and imposition of the charges, as appear to it to be appropriate.".>

After section 98

Bill Aitken

151 After section 98, insert—

<Further amendments to the 1980 Act

The 1980 Act must be amended in accordance with schedule (Amendments to the 1980 Act consequential upon, or supplementary to, the 2007 Act) which makes consequential and supplemental provision to that Act for the purposes, or in consequence, of or in connection with, the 2007 Act.>

Section 99

Richard Baker

152 In section 99, page 79, line 26, at end insert—

<( ) section 5(5A),>

Richard Baker

153 In section 99, page 80, line 2, at end insert—

<( ) section (Regulation of estate administrators),>

Section 99A

Richard Baker

154 In section 99A, page 80, line 9, leave out <percentage specified in section 37(1)(a)> and insert––

<( ) the first of the two percentages specified in paragraph (a) of section 37A(1),

( ) the percentage specified in paragraph (b) of that section,>

Robert Brown

155 In section 99A, page 80, line 9, leave out <percentage specified in section 37A(1)(a)> and insert <the first of the two percentages specified in section 37A(1),>

After schedule 8

Bill Aitken

156 After schedule 8, insert—

<SCHEDULE

(introduced by section (Further amendments to the 1980 Act))

AMENDMENTS TO THE 1980 ACT CONSEQUENTIAL UPON, OR SUPPLEMENTARY TO, THE 2007 ACT

1 (1) The 1980 Act is amended as follows.

(2) In section 13(3) and 24A(3), for "by him for the purposes of Part IV" substitute "or unsatisfactory professional conduct".

(3) In section 23(2), 23A and 23B(3), for "for the purposes of Part IV" substitute "or unsatisfactory professional conduct".

(4) In section 15, after subsection (2)(e) insert—

"(ea) without having paid in full any amount owed by him to the Commission under section 27 or 28 of the 2007 Act; or

(eb) without having paid in full any compensation awarded by the Council under section 42ZA(4)(c) or by the Tribunal under section (53(2)(bb) or by the Commission under section 10(2)(d) of the 2007 Act; or".

(5) In section 42ZA, after subsection (15) insert—

"(16) In this section and in sections 42ZB to 42ZD, "solicitor" shall be construed in the same way as references to a "solicitor" are construed for the purposes of Part IV by virtue of section 51(1A)."

(6) In section 52, after subsection (3) insert—

"(4) For the avoidance of doubt, rules made by the Tribunal under subsection (2) may provide for the functions of the Tribunal to be exercised on behalf of the Tribunal, in relation to a particular case or part of a case—

(a) by any particular tribunal constituted in accordance with paragraph 5 of Schedule 4 to deal with that case or part;

(b) by the chairman or vice-chairman of the Tribunal other than the functions of hearing and determining the merits of any case.".

(7) In section 53—

(a) in subsection (2), after paragraph (bb) insert—

"(bc) where the Tribunal considers that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, to direct the solicitor to undertake such education or training as regards the law or legal practice as the Tribunal considers appropriate in that respect."

(b) subsection (3A) is repealed.

(8) In section 54—

(a) after subsection (1B), insert—

"(1BA) In any case where the Tribunal has found the solicitor guilty of professional misconduct and has made certain decisions under section 53(2) or (5) but has not determined whether any amount of compensation is payable to the complainer under section 53(2)(bb)—

(a) any appeal by the solicitor against any of those decisions of the Tribunal shall not prevent the Tribunal from making a decision under section 53(2)(bb), but

(b) this is without prejudice to any appeal being made under section 54(1A) against any decision made by the Tribunal under that section.",

(b) in subsection (1C), after "53" insert "(1)".

(9) In section 54A, after subsection (3) insert—

"(3A) The Council may, before the expiry of 21 days beginning with the day on which the decision by the Tribunal under section 53ZB(1) and (2) 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 53ZA(1)(f) or (2)(b)."

(10) After section 54A, insert—

"54B Appeals from decisions of Tribunal in other cases

(1) A solicitor in respect of whom a decision has been made by the Tribunal under section 10(1) is not to have his name restored to the roll.

(2) A registered European lawyer in respect of whom a decision has been made by the Tribunal under section 12D(1) is not to have his name restored to the register.

(3) A foreign lawyer in respect of whom a decision has been made by the Tribunal under section 60A(4D) is not to have his name restored to the register of foreign lawyers.

(4) On an appeal under subsection (1), (2) or (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 under subsection (4) shall be final.".

(11) In section 65(1), in the definition of "solicitor" insert at the end "but for the purposes of sections 42ZA to 42ZD and Part IV shall be construed in accordance with section 51(1A).".

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