Office of Public Sector Information
PART 1 continued
A direction by the Commission under section 10(2) is enforceable in like manner as an extract registered decree arbitral in its favour bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(1) Any person mentioned in subsection (2) may, with the leave of the court, appeal against any decision of the Commission under the preceding sections of this Part as respects a complaint on any ground set out in subsection (4).
(2) Those persons are—
(a) the complainer;
(b) the practitioner to whom the complaint relates;
(c) the practitioner’s firm;
(d) the employing practitioner;
(e) the relevant professional organisation.
(3) An appeal under subsection (1) must be made before the expiry of the period of 28 days beginning with the day on which notice of the decision was given to the complainer and the practitioner; but the court may, on cause shown, consider an appeal made after the expiry of that period.
(4) The grounds referred to in subsection (1) are—
(a) that the Commission’s decision was based on an error of law;
(b) that there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint;
(c) that the Commission has acted irrationally in the exercise of its discretion;
(d) that the Commission’s decision was not supported by the facts found to be established by the Commission.
(5) The Commission is to be a party in any proceedings on an appeal under subsection (1).
(6) In this section and in section 22, “decision” includes any determination, direction or other decision and also includes the making of any report under section 10(2)(e).
(1) On any appeal under section 21(1), the court may make such order as it thinks fit (including an order substituting its own decision for the decision appealed against).
(2) Where such an order upholds a services complaint or confirms a decision of the Commission to uphold a services complaint, the court may direct that such of the steps mentioned in 10(2) as it considers fair and reasonable in the circumstances be taken.
(3) On any appeal under section 21(1) the court may make such ancillary order (including an order as to the expenses of the appeal) as it thinks fit.
(4) A decision of the court under this section is final.
(1) The Commission may, subject to subsection (4), carry out such investigation as appears to it to be appropriate of any complaint made to it by or on behalf of any person which relates to the manner in which a conduct complaint made by or on behalf of that person and remitted to a relevant professional organisation under section 6(a) or 15(5)(a) has been dealt with by the organisation (such a complaint being referred to in this Act as a “handling complaint”).
(2) The Commission may decide—
(a) not to investigate a handling complaint;
(b) to discontinue the investigation of a handling complaint.
(3) If the Commission decides not to investigate, or to discontinue the investigation of, a handling complaint it must give notice in writing to—
(a) the person who made the handling complaint;
(b) the relevant professional organisation;
(c) the practitioner concerned in the conduct complaint to which the handling complaint relates,
by sending to each of them a copy of the decision and specifying the reasons for the decision.
(4) The Commission must not investigate a handling complaint where either—
(a) the relevant professional organisation has not completed its investigation of the conduct complaint to which the handling complaint relates; or
(b) the handling complaint is made after the expiry of the period of 6 months after such date as the Scottish Ministers may specify by order,
but paragraph (a) does not apply in any of the circumstances mentioned in subsection (5).
(5) The circumstances are that—
(a) the handling complaint is that the relevant professional organisation—
(i) has acted unreasonably in failing to start an investigation into the complaint; or
(ii) having started such an investigation, has failed to complete it within a reasonable time; or
(b) the Commission considers that, even though the complaint is being investigated by the organisation, an investigation by the Commission is justified.
(6) Where the Commission decides that subsection (4)(a) does not prevent it investigating a handling complaint because any of the circumstances referred to in subsection (5) apply, it must give notice in writing to—
(a) the person who made the handling complaint;
(b) the relevant professional organisation;
(c) the practitioner concerned in the conduct complaint to which the handling complaint relates,
by sending to each of them a copy of the decision and specifying the reasons for the decision.
(7) An order under subsection (4)(b) may specify different dates for different purposes.
(8) Where the Commission is conducting an investigation under this section, it may at any time make a written interim report in relation to the investigation and must send a copy of any such report to—
(a) the person who made the handling complaint;
(b) the relevant professional organisation;
(c) the practitioner concerned in the conduct complaint to which the handling complaint relates.
(9) The Scottish Ministers may by order amend the period of time referred to in subsection (4)(b).
(1) Where the Commission has completed an investigation under section 23 it must—
(a) make a written report of its conclusions;
(b) send a copy of the report to—
(i) the person who made the handling complaint;
(ii) the relevant professional organisation;
(iii) the practitioner concerned in the conduct complaint to which the handling complaint relates.
(2) A report under this section may include one or more of the following recommendations—
(a) that the relevant professional organisation provide to the person making the handling complaint such information about the conduct complaint to which the handling complaint relates, and how it was dealt with, as the Commission considers appropriate;
(b) that the conduct complaint be investigated further by the relevant professional organisation;
(c) that the conduct complaint be reconsidered by the relevant professional organisation;
(d) that the relevant professional organisation consider exercising its powers in relation to the practitioner concerned;
(e) that the relevant professional organisation pay compensation of such amount, not exceeding £5000, as the Commission may specify to the person making the handling complaint for loss, inconvenience or distress resulting from the way in which the conduct complaint was handled by the organisation;
(f) that the relevant professional organisation pay to the person making the handling complaint an amount specified by the Commission by way of reimbursement of the cost, or part of the cost, of making the handling complaint.
(3) Where a report under this section includes any recommendation, the report must state the reasons for making the recommendation.
(4) A relevant professional organisation to whom a report is sent by the Commission under this section must have regard to the conclusions and recommendations set out in the report so far as relating to the organisation.
(5) Where a report sent to a relevant professional organisation under this section includes a recommendation relating to it, the organisation must, before the end of the period of 3 months beginning with the date on which the report was sent, notify the Commission, the person who made the handling complaint and the practitioner concerned, in writing, of—
(a) the action which it has taken to comply with the recommendations or in consequence of further consideration of the matter by it;
(b) its decision not to comply wholly with a recommendation and any reason for that decision.
(6) Where the Commission is either—
(a) notified under subsection (5)(b) that the relevant professional organisation has decided not to comply wholly with a recommendation; or
(b) of the opinion that the relevant professional organisation has not complied wholly with a recommendation before the end of the period of 3 months beginning with the date on which the report was sent to the organisation under this section,
the Commission may direct the professional organisation to comply with that recommendation if the Commission thinks fit; and the organisation must comply with the direction.
(7) For the purposes of subsection (6), a “recommendation” means any recommendation referred to in paragraphs (a) to (c), (e) or (f) of subsection (2).
(8) The Scottish Ministers may by order, after consulting—
(a) the relevant professional organisations;
(b) such groups of persons representing consumer interests as they consider appropriate,
amend subsection (2)(e) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.
(1) If the Commission considers that a relevant professional organisation has failed to comply with a direction under section 24(6), the Commission may apply by petition to the court for the organisation to be dealt with in accordance with subsection (2).
(2) Where such a petition is presented, the court may inquire into the matter and after hearing—
(a) any witnesses who may be produced against or on behalf of the professional organisation; and
(b) any statement that may be offered in defence,
may order the organisation to comply with the recommendation with which the direction under section 24(6) is concerned.
(1) The office of the Scottish legal services ombudsman (“the ombudsman”) is abolished on such date as the Scottish Ministers may by order specify.
(2) The Scottish Ministers may not make an order under subsection (1) unless the ombudsman has no exercisable functions.
(3) The functions of the ombudsman cease to be exercisable except in relation to the advice, services and activities mentioned in section 77(2).
(1) Each—
(a) advocate practising as such;
(b) conveyancing practitioner or executry practitioner;
(c) person exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the 1990 Act;
(d) solicitor who has in force a practising certificate,
must, subject to subsection (2) and section 29(2), pay to the Commission in respect of each financial year a contribution (referred to in this Part as “the annual general levy”).
(2) Each relevant professional organisation—
(a) must secure the collection by it, from all of the persons falling within the categories referred to in paragraphs (a) to (d) of subsection (1) as respects whom it is the relevant professional organisation, of the annual general levy due by them;
(b) must 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.
(3) Any—
(a) sum due to the Commission under subsection (2)(b);
(b) interest due on any such sum at such rate as may be specified by the Scottish Ministers by order from the date the sum is due under rules made under section 32(1) until it is paid,
may be recovered by it (as a debt) from the relevant professional organisation which is liable under that subsection to pay the sum.
(4) A relevant professional organisation may recover (as a debt), from any person falling within the categories referred to in paragraphs (a) to (d) of subsection (1) as respects whom it is the relevant professional organisation—
(a) any sum due by the person to the Commission under that subsection;
(b) any interest due on any such sum at such rate as may be specified by the Scottish Ministers by order from the date the sum is due under rules made under section 32(1) until it is paid.
(5) If any person who is liable under subsection (1) to pay the annual general levy fails to pay any amount of the levy, or pays any such amount late, the failure or late payment may be treated as professional misconduct or unsatisfactory professional conduct.
(1) A practitioner against whom a services complaint is made must pay to the Commission, in the circumstances mentioned in subsection (2), a contribution in relation to the complaint (referred to in this Part as “the complaints levy”).
(2) The circumstances are where—
(a) any of the following applies—
(i) mediation by virtue of section 8(5) takes place in relation to the complaint and the outcome of the mediation is accepted by both the complainer and the practitioner;
(ii) a settlement proposed as respects the complaint by the Commission under section 9(2) is accepted as mentioned in section 9(4);
(iii) the Commission makes a determination under section 9(1) upholding the complaint; and
(b) the amount of the levy has not been determined as nil and the Commission does not in accordance with rules made under section 32(1) waive the requirement to pay the levy.
(3) Any—
(a) sum due by a practitioner to the Commission under subsection (1);
(b) interest due on any such sum at such rate as may be specified by the Scottish Ministers by order from the date the sum is due under rules made under section 32(1) until it is paid,
may be recovered by it (as a debt) from the practitioner.
(4) If any person who is liable under subsection (1) to pay the complaints levy fails to pay any amount of the levy, or pays any such amount late, the failure or late payment may be treated as professional misconduct or unsatisfactory professional conduct.
(1) The amount of the—
(a) annual general levy;
(b) complaints levy,
in respect of each financial year is such amount as may be determined by the Commission, having had regard to any views expressed in its consultation under subsection (4) in respect of the financial year in question.
(2) The amount of the annual general levy must be the same amount for each of the individuals who are liable under section 27(1) to pay it; but rules made under section 32(1) may provide for circumstances in which the Commission may waive a portion of the amount which would otherwise require to be paid.
(3) The Commission may determine different amounts (including an amount of nil) for the complaints levy in different circumstances.
(4) The Commission must, in January each year, consult each relevant professional organisation and its members on the Commission’s proposed budget for the next financial year.
(5) The proposed budget must—
(a) include—
(i) an estimate as respects resource requirements;
(ii) the proposed amount of the annual general levy and the complaints levy;
(b) be accompanied by information as to the Commission’s projected work plan for the next financial year.
(6) Each relevant professional organisation must, for the purpose of informing the Commission in relation to—
(a) the inclusion in the Commission’s proposed budget for each financial year of the proposed amount of the annual general levy;
(b) the Commission’s determination under subsection (1) of the amount of the annual general levy in respect of each financial year,
provide the Commission with an estimate of the number of persons as respects whom it is the relevant professional organisation and who it anticipates should be liable under section 27(1) to pay the annual general levy for the financial year concerned.
(7) The Commission must secure so far as is reasonably practicable that, taking one financial year with another, the amount of the annual general levy and the complaints levy is reasonably sufficient to meet its expenditure.
(8) The Commission must, no later than 31 March in each year, publish the responses it has received in the consultation carried out by it under subsection (4) in the immediately preceding January.
(9) Subsection (1) does not apply to responses which are subject to an express request in writing for confidentiality.
(10) The Commission must lay a copy of the finalised budget before the Parliament no later than 30 April in each year.
(1) The Scottish Ministers may make grants to the Commission of such amounts as they consider appropriate.
(2) Any grant under this section may be made on such terms and subject to such conditions (including conditions as to repayment) as the Scottish Ministers consider appropriate; and the Scottish Ministers may from time to time after the grant is made vary such terms and conditions.
(3) For the purpose of the exercise of any of its duties or powers under this Part—
(a) the Commission may, subject to such conditions as the Scottish Ministers think fit, borrow from them;
(b) the Scottish Ministers may lend to the Commission,
sums of such amounts as the Ministers may determine.
(4) Any loan made in pursuance of subsection (3) is to be repaid to the Scottish Ministers at such times and by such methods, and interest on the loan is to be paid to them at such times and at such rates, as they may from time to time direct.
(1) The Scottish Ministers may guarantee, in such manner and on such conditions as they think fit, the discharge of any financial obligation in connection with any sums borrowed by the Commission.
(2) Immediately after any guarantee is given under this section, the Scottish Ministers must lay a statement of the guarantee before the Parliament.
(3) Where any sum is paid out in fulfilment of a guarantee under this section, the Commission must make to the Scottish Ministers, at such times and in such manner as they may from time to time direct—
(a) payments of such amount as they may so direct in or towards repayment of the sums so paid out;
(b) payments of interest, at such rate as they may so direct, on the amount outstanding for the time being in respect of sums so paid out.
(1) The Commission must make rules as to its practice and procedure and, as soon as practicable after making or varying those rules, publish them and make them available to the public in a form which is readily accessible.
(2) Schedule 3 makes further provision as respects provision which—
(a) must be included;
(b) may in particular be included,
in the rules.
(3) The rules may make different provision for different categories of complaint.
(4) The Commission must keep the rules under review and must vary the provisions of the rules whenever it considers it appropriate to do so.
(5) The Commission must, before making rules or varying the rules, consult with—
(a) the Lord President of the Court of Session;
(b) the Scottish Ministers;
(c) the relevant professional organisations;
(d) such groups of persons representing consumer interests as it considers appropriate,
as to the proposed content of the rules to be made or varied.
Where a relevant professional organisation receives a complaint from a person other than the Commission about—
(a) the conduct of, or any services provided by, a practitioner;
(b) its handling of a conduct complaint remitted to it under section 6(a) or 15(5)(a),
it must without delay send the complaint and any material which accompanies it to the Commission.
(1) The Commission must, so far as is reasonably practicable, provide advice to any person who requests it as respects the process of making a services complaint or a handling complaint to it.
(2) Where the Commission receives a complaint suggesting what purports to be professional misconduct or unsatisfactory professional conduct by a practitioner who is a firm of solicitors or an incorporated practice—
(a) it must inform the person that a complaint to it suggesting such misconduct or such conduct may be made only against a named practitioner who is an individual;
(b) where the complaint received is not about a named practitioner who is an individual, it must so far as is reasonably practicable offer advice to the person with a view to assisting the person to reformulate the complaint so that it is about such a named practitioner.
(3) Where a person in requesting or being offered such advice expresses a preference for receiving it by a particular means (as, for example, in writing, by telephone, by means of a recording or an explanation in person), the Commission must, so far as is reasonably practicable, give effect to the preference.
(1) The Commission must monitor practice and identify any trends in practice as respects the way in which practitioners have dealt with matters that result in services complaints being dealt with by the Commission under sections 8 to 12.
(2) The Commission must prepare and publish reports on any trends in practice which it identifies under subsection (1) at such intervals as it considers appropriate.
(3) The Commission must—
(a) enter into protocols with the relevant professional organisations as respects the sharing of information by it with them in relation to—
(i) numbers of services complaints dealt with by it;
(ii) such trends as it may identify in relation to such complaints;
(iii) settlements proposed by it under section 9(2), which are accepted as mentioned in subsection (4) of that section;
(iv) the substance of any services complaints which might be relevant to section 31(3) of the 1986 Act;
(v) determinations by it under section 9(1) upholding services complaints;
(vi) failure by practitioners to comply with directions by it under section 10(2), notice by it under section 16 or 17(1) or requirements by it under section 37(3);
(b) share information with the relevant professional organisations in accordance with the protocols.
(4) The relevant professional organisations must enter into protocols with the Commission for the purposes of subsection (3)(a).
(1) The Commission must monitor practice and identify any trends in practice as respects the way in which—
(a) practitioners have dealt with matters that result in conduct complaints being remitted to the relevant professional organisations under section 6(a) or 15(5)(a);
(b) the relevant professional organisations have dealt with conduct complaints so remitted.
(2) The Commission must prepare and publish reports on any trends in practice which it identifies under subsection (1) at such intervals as it considers appropriate.
(3) The Commission may—
(a) give guidance to the relevant professional organisations as to the timescales within which they should aim to complete their investigation of or, as the case may be, determine conduct complaints remitted to them under section 6(a) or 15(5)(a);
(b) make recommendations to any relevant professional organisation about the organisation’s procedures for, and methods of dealing with, conduct complaints so remitted to it.
(4) Each relevant professional organisation to which the Commission makes a recommendation under subsection (3)(b) must—
(a) consider the recommendation;
(b) notify the Commission in writing of—
(i) the results of the consideration;
(ii) any action the organisation has taken or proposes to take in consequence of the recommendation.
(5) The Commission may carry out, for any of the purposes of this section, audits of the records held by the relevant professional organisations relating to conduct complaints remitted to them under section 6(a) or 15(5)(a).
(1) The Commission may require any relevant professional organisation to—
(a) provide it with such information, being information which is within the knowledge of the organisation, as the Commission considers relevant for any of the purposes of section 23, 24 or 36;
(b) to produce to it such documents, being documents which are within the possession or control of the organisation, as the Commission considers relevant for any of those purposes.
(2) The information required to be provided or the documents required to be produced under subsection (1) may include information or, as the case may be, documents obtained by the relevant professional organisation from a practitioner while investigating a conduct complaint against the practitioner remitted to it under section 6(a) or 15(5)(a); and the organisation must comply with such a requirement.
(3) Where any information required by the Commission under subsection (1) is not within the knowledge of the relevant professional organisation, or any documents required to be produced under that subsection are not within the possession or control of the organisation, the Commission may require the practitioner concerned—
(a) to provide it with that information in so far as it is within the knowledge of the practitioner;
(b) to produce to it those documents if they are within the practitioner’s possession or control.
(4) Schedule 2 makes further provision about the powers of the Commission under this section.
(1) In relation to any investigation or report undertaken by it under this Act, the Commission must liaise with the relevant professional organisation with a view to minimising any unnecessary duplication in relation to any investigation or report undertaken, or to be undertaken, by the relevant professional organisation.
(2) In relation to any investigation or report undertaken by it under this Act, each relevant professional organisation must liaise with the Commission with a view to minimising any unnecessary duplication in relation to any investigation or report undertaken, or to be undertaken, by the Commission.
(1) The Commission may monitor the effectiveness of—
(a) the Scottish Solicitors Guarantee Fund vested in the Society and controlled and managed by the Council under section 43(1) of the 1980 Act (“the Guarantee Fund”);
(b) arrangements carried into effect by the Society under section 44(2) of that Act (“the professional indemnity arrangements”);
(c) any funds or arrangements maintained by any relevant professional organisation which are for purposes analogous to those of the Guarantee Fund or the professional indemnity arrangements as respects its members.
(2) The Commission may make recommendations to the relevant professional organisation concerned about the effectiveness (including improvement) of the Guarantee Fund, the professional indemnity arrangements or any such funds or arrangements as are referred to in subsection (1)(c).
(3) The Commission may request from the relevant professional organisation such information as the Commission considers relevant to its functions under subsections (1) and (2).
(4) Where a relevant professional organisation fails to provide information requested under subsection (3), it must give reasons to the Commission in respect of that failure.
The Commission may issue guidance to the relevant professional organisations or to practitioners as respects how practitioners deal with complaints made to them about—
(a) their professional conduct or the professional services provided by them;
(b) the professional conduct of, or professional services provided by, any of their employees who are practitioners,
and any such guidance may recommend or include recommendations as respects standards for systems by practitioners for dealing with such complaints.
Legal Profession and Legal Aid (Scotland) Act 2007