The Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014

JurisdictionScotland
CitationSSI 2014/232

2014No. 232

LEGAL PROFESSION

The Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014

20thAugust2014

1stJanuary2015

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 41(1) and (2) of the Legal Profession and Legal Aid (Scotland) Act 2007( 1) and all other powers enabling them to do so.

In accordance with section 41(1) of that Act, they have consulted the Commission, the relevant professional organisations and other persons they consider appropriate.

In accordance with section 79(3) of that Act, a draft of this instrument has been laid before, and approved by resolution of, the Scottish Parliament.

Citation, commencement and interpretation

1. (1) These Regulations may be cited as the Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014.

(2) These Regulations come into force on 1st January 2015.

(3) In these Regulations "the 2007 Act" means the Legal Profession and Legal Aid (Scotland) Act 2007.

Amendment of the 2007 Act

2. (1) The 2007 Act is amended in accordance with this regulation.

(2) In section 2 (receipt of complaints: preliminary steps)-

(a) in subsection (1)-

(i) for "Where" substitute "This section applies where",

(ii) omit the words from ", it must" to "mentioned in subsection (4)",

(b) after subsection (1) insert-

"(1A) The Commission must, subject to subsection (3) and sections 3 and 4 and any provision in rules made under section 32(1) as to eligibility for making complaints-

(a) determine whether the complaint constitutes-

(i) a conduct complaint,

(ii) a services complaint, and then

(b) take the preliminary steps mentioned in subsection (4).",

(c) after subsection (2) insert-

"(2A) A determination by the Commission under subsection (1A)(a) must include a determination of whether (and if so to what extent) the complaint constitutes separate complaints falling within more than one of the categories and if so which of the categories.

(2B) Where, for the purposes of subsection (1A)(a), it appears to the Commission that the complaint may constitute both-

(a) a conduct complaint, and

(b) a separate services complaint,

it must consult, co-operate and liaise with the relevant professional organisation and have regard to any views expressed by the organisation on the matter before making a determination under subsection (1A)(a) as respects the complaint.

(2C) A relevant professional organisation must co-operate and liaise with the Commission in relation to subsection (2B).".

(3) In section 4 (complaint not made timeously or made prematurely)-

(a) in subsection (2)-

(i) after "not" in the first place where it occurs insert-

"(a) make the determination referred to in section 2(1A)(a) in relation to it;",

(ii) the words "take the preliminary steps referred to in section 2(4) in relation to it, and" become paragraph (b),

(iii) omit "need not" in the second place where it occurs,

(iv) the remaining words become paragraph (c),

(b) in subsection (3), after "subsection (1)" insert "or section 9A(3)",

(c) in subsection (4), after "subsection (2)" insert "or section 9A(2)".

(4) Omit section 5.

(5) In section 6 (complaint determined to be conduct complaint)-

(a) at the beginning insert-

"(1) This section applies where, or to the extent that, the Commission-

(a) determines under section 2(1A)(a) that a complaint is a conduct complaint, and

(b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things.",

(b) the existing text becomes subsection (2),

(c) in subsection (2)-

(i) for the words from "Where" to "must" substitute "The Commission must",

(ii) after "determination" in the first place where it occurs insert "under section 2(1A)(a)".

(6) In section 7 (services complaint: notice)-

(a) at the beginning insert-

"(1) This section applies where, or to the extent that, the Commission-

(a) determines under section 2(1A)(a) that a complaint is a services complaint, and

(b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things.",

(b) the existing text becomes subsection (2),

(c) in subsection (2)-

(i) for the words from "Where" to "must" substitute "The Commission must",

(ii) after "determination" in the first place where it occurs insert "under section 2(1A)(a)".

(7) In section 8 (services complaint: local resolution or mediation), for subsection (1) substitute-

"(1) This section applies where the Commission-

(a) determines under section 2(1A)(a) that a complaint by or on behalf of a person referred to in section 2(2)(b)(i) is a services complaint, and

(b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things.".

(8) In each of sections 9 and 15 for "section 5(1)" in each place where it occurs substitute "section 2(1A)(a)".

(9) In section 9 (services complaint: Commission's duty to investigate and determine)-

(a) in subsection (1) after "the Commission must, subject to" insert "this section and ",

(b) after subsection (1) insert-

"(1A) The Commission may decide-

(a) to discontinue the investigation of a services complaint;

(b) to reinstate the investigation of a discontinued services complaint.

(1B) Where the Commission discontinues or reinstates the investigation of a services complaint it must give notice in writing to the complainer and the practitioner and specify the reasons for the decision.".

(10) After section 9 insert -

(1) This section applies where the Commission is investigating...

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