Legal Services (Scotland) Act 2010
| Year | 2010 |
Legal Services (Scotland) Act 2010
22010 asp 16
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 6th October 2010 and received Royal Assent on 9th November 2010
An Act of the Scottish Parliament to allow and to make provision for regulating the supply of certain legal services by licensed entities; to extend rights to obtain confirmation to the estates of deceased persons; to regulate will and other testamentary writing by non-lawyers; to make provision concerning the Law Society of Scotland and the Faculty of Advocates and for the professional arrangements to which solicitors and advocates are subject; to allow court rules to permit the making of oral submissions by lay representatives in civil cases; and for connected purposes.
Part 1
The regulatory objectives etc.
Introduction
1 Regulatory objectives
For the purposes of this Act, the regulatory objectives are the objectives of-
(i) the constitutional principle of the rule of law,
(ii) the interests of justice,
(i) the interests of consumers,
(ii) the public interest generally,
(i) access to justice,
(ii) competition in the provision of legal services,
(d) promoting an independent, strong, varied and effective legal profession,
(e) encouraging equal opportunities (as defined in Section L2 of Part II of Schedule 5 to the Scotland Act 1998) within the legal profession,
(f) promoting and maintaining adherence to the professional principles.
2 Professional principles
For the purposes of this Act, the professional principles are the principles that persons providing legal services should-
(a) support the proper administration of justice,
(b) act with independence (in the interests of justice),
(c) act with integrity,
(d) act in the best interests of their clients (and keep clients' affairs confidential),
(e) maintain good standards of work,
(i) exercising before any court a right of audience, or
(ii) conducting litigation in relation to proceedings in any court,
comply with such duties as are normally owed to the court by such persons,
(g) meet their obligations under any relevant professional rules,
(h) act in conformity with professional ethics.
3 Legal services
(1) For the purposes of this Act, legal services are services which consist of (at least one of)-
(a) the provision of legal advice or assistance in connection with-
(i) any contract, deed, writ, will or other legal document,
(ii) the application of the law, or
(iii) any form of resolution of legal disputes,
(b) the provision of legal representation in connection with-
(i) the application of the law, or
(ii) any form of resolution of legal disputes.
(2) But, for those purposes, legal services do not include-
(a) judicial activities,
(b) any other activity of a judicial nature,
(c) any activity of a quasi-judicial nature (for example, acting as a mediator).
(3) In subsection (1)(a)(iii) and (b)(ii), "legal disputes" includes disputes as to any matter of fact the resolution of which is relevant to determining the nature of any person's legal rights or obligations.
Role of Ministers
4 Ministerial oversight
(1) Subsections (2) and (3) apply in relation to the exercise by the Scottish Ministers of their functions-
(a) under Parts 2 and 3, or
(b) under section 125(3) or otherwise arising by virtue of Part 4 (except sections 141(c) and 145(1)).
(2) The Scottish Ministers must, so far as practicable, act in a way which-
(a) is compatible with the regulatory objectives, and
(b) they consider most appropriate with a view to meeting those objectives.
(3) The Scottish Ministers must adopt best regulatory practice under which (in particular) regulatory activities should be-
(a) carried out-
(i) effectively (but without giving rise to unnecessary burdens),
(ii) in a way that is transparent, accountable, proportionate and consistent,
(b) targeted only at such cases as require action.
5 Consultation by Ministers
(1) Subsection (2) applies in relation to the exercise by the Scottish Ministers of their functions-
(a) under Parts 2 and 3, or
(b) under section 125(3) or otherwise arising by virtue of Part 4 (except sections 141(c) and 145(1)).
(2) Where (and to the extent that) the Scottish Ministers consider it appropriate to do so in the case of an individual function, they must consult such persons or bodies as appear to them to have a significant interest in the particular subject-matter to which the exercise of the function relates.
(3) The general requirement to consult under subsection (2) has effect in conjunction with, or in the absence of, any particular consultation requirement to which the Scottish Ministers are subject in a specific (and relevant) context.
Part 2
Regulation of licensed legal services
Chapter 1
Approved regulators
Approved regulators
6 Approved regulators
(1) For the purposes of this Part, an approved regulator is a professional or other body which is approved as such by the Scottish Ministers under section 7.
(2) That is, following an application to them by the body under subsection (3).
(3) An application to become an approved regulator must include-
(a) a copy of the applicant's proposed regulatory scheme (see section 7(1)(c)),
(b) a copy of its proposed statement of policy under section 78(1),
(c) a description of-
(i) the applicant's constitution and composition (including internal structure),
(ii) its internal governance arrangements,
(iii) its representative functions (if any),
(iv) its other activities (if any).
(4) The applicant-
(a) must provide the Scottish Ministers with such other information as they may reasonably require for their (or the Lord President's) consideration of its application,
(b) may withdraw its application at any time by giving them written notice to that effect.
(5) No more than 3 approved regulators may exist at any time.
(6) 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).
(7) The Scottish Ministers may by regulations prescribe fees that they may charge-
(a) an applicant to become an approved regulator,
(b) approved regulators.
7 Approval of regulators
(1) The Scottish Ministers may approve the applicant as an approved regulator if they are satisfied that-
(a) for regulating licensed legal services providers in accordance with this Part, the applicant has-
(i) the necessary expertise as regards the provision of legal services (including as deriving from that of the persons within it),
(ii) a thorough understanding of the application of the regulatory objectives and the professional principles,
(iii) sufficient resources (financial and otherwise),
(iv) the capability in other respects,
(b) the applicant will always exercise its regulatory functions-
(i) independently of any other person or interest,
(ii) properly in other respects (in particular, with a view to achieving public confidence),
(c) the applicant's proposed regulatory scheme is adequate (as determined with particular reference to section 12),
(d) the applicant's internal governance arrangements are, or will be, suitable (as determined with particular reference to section 27).
(2) The Scottish Ministers may give their approval subject to conditions.
(3) Their approval may be given-
(a) with restrictions imposed by reference to particular categories of-
(i) licensed providers,
(ii) legal services,
(b) either-
(i) without limit of time, or
(ii) for a fixed period of at least 3 years.
(4) The Scottish Ministers may, after consulting the approved regulator, vary (including by addition or deletion) any conditions or restrictions imposed under subsection (2) or (3).
(5) The Scottish Ministers may by regulations make further provision about approval under this section, including (in particular)-
(a) the process for seeking their approval,
(b) in relation to capability to act as an approved regulator, the criteria for their approval (including things that applicants must be able to demonstrate).
(6) Before making regulations under subsection (5), the Scottish Ministers must consult the Lord President.
8 Pre-approval consideration
(1) Before deciding whether or not to approve the applicant as an approved regulator under section 7, the Scottish Ministers must consult-
(a) the Lord President,
(b) the OFT, and such other organisation (appearing to them to represent the interests of consumers in Scotland) as they consider appropriate,
(c) such other person or body as they consider appropriate.
(2) In consulting under subsection (1), the Scottish Ministers-
(a) must send a copy of the application to the consultees,
(b) may send a copy of any revised application to any (or all) of them.
(3) The Scottish Ministers must, with reasons, notify the applicant if they intend to-
(a) refuse to approve it as an approved regulator, or
(b) impose conditions or restrictions under section 7(2) or (3).
(4) If notification is given to the applicant under subsection (3), it has 28 days beginning with the date of the notification (or such longer period as the Scottish Ministers may allow) to-
(a) make representations to the Scottish Ministers,
(b) take such steps as it may consider expedient.
To continue reading
Request your trial