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Part 1Regulatory framework

Chapter 3New regulators of legal services

Applications

23Right to provide legal services

(1)

A body may apply to the Lord President for the purpose of the body being accredited to—

(a)

authorise persons to exercise (any or all of) the rights listed in subsection (2), and

(b)

regulate those persons’ exercise of the acquired rights.

(2)

The rights are—

(a)

the right to conduct litigation on behalf of members of the public,

(b)

rights of audience,

(c)

the right to provide other types of legal services.

(3)

Only natural persons may be authorised to exercise the rights listed in paragraphs (a) and (b) of subsection (2).

(4)

An application for accreditation under this section must include—

(a)

a draft regulatory scheme,

(b)

a statement that the body will comply with the requirements of section 26, and

(c)

confirmation that the body has consulted its members in relation to the application and copies of any written representations received in response to the consultation.

24Regulatory scheme

(1)

The draft regulatory scheme to accompany an application for accreditation under section 23(4) must—

(a)

specify the rights that it is proposed persons authorised by the body may acquire,

(b)

contain the body’s proposed—

(i)

authorisation rules,

(ii)

practice rules, and

(iii)

if applicable, its ALB rules for the purposes of Part 2,

(c)

set out—

(i)

how the body will exercise its regulatory functions compatibly with the regulatory objectives,

(ii)

the regulatory category to which the body thinks it should be assigned,

(d)

deal with such other regulatory matters as the Scottish Ministers may by regulations specify (and in such manner as the regulations may specify).

(2)

For the purpose of subsection (1)(a), an application to acquire (either or both of) the rights listed in paragraph (a) or (b) of section 23(2) must specify—

(a)

the courts in which authorised providers are to be able to practise, and

(b)

the categories of proceedings authorised providers are to be able to undertake.

(3)

The authorisation rules are rules about—

(a)

the procedure for a person to become an authorised provider of the body, including—

(i)

the making of applications for authorisation,

(ii)

the criteria to be met by applicants,

(iii)

the determination of applications,

(iv)

the grant of authorisation to exercise acquired rights,

(b)

the terms of the authorisation including, in particular, the imposition of conditions or restrictions,

(c)

circumstances in which the authorisation may be suspended or withdrawn,

(d)

fees that the body intends to charge in connection with the authorisation,

(e)

how the body will review any decision—

(i)

refusing an application for authorisation,

(ii)

granting an application subject to conditions or restrictions,

(iii)

suspending or withdrawing the authorisation.

(4)

The authorisation rules must provide—

(a)

that only persons that the body considers to be fit and proper may be authorised,

(b)

for the suspension or withdrawal of authorisation where an authorised provider is breaching (or has breached) the regulatory scheme or other rules of professional practice that apply to it.

(5)

The practice rules are rules about—

(a)

the standards to be met by authorised providers in the exercise of acquired rights,

(b)

accounting and auditing,

(c)

professional indemnity (in respect of which, see section 17),

(d)

the making and handling of complaints and, in particular, how the body will deal with complaints remitted (or treated as having been remitted) to it under the 2007 Act in relation to its authorised providers,

(e)

the measures the body may take, in relation to its authorised providers, if—

(i)

there is a breach of the regulatory scheme, or

(ii)

a complaint referred to in paragraph (d) is upheld.

(6)

The practice rules must include provision enabling the body to comply with the provisions of section 29(4).

(7)

For the purpose of subsection (5)(d), the practice rules must—

(a)

include rules relating to reviews of final decisions of the body made in relation to complaints remitted (or treated as having been remitted) to the body under the 2007 Act in relation to its authorised providers,

(b)

require publication of a final decision relating to a conduct complaint suggesting professional misconduct of an authorised provider of the body that is remitted to the body by the Commission (or is treated as having been so remitted by virtue of section 33A(2) of the 2007 Act),

(c)

require such a decision to include—

(i)

detail of any facts established,

(ii)

a statement of reasons for the making of the decision, and

(iii)

where the complaint is upheld, information about any penalty imposed,

(d)

where such a complaint is upheld, allow the body to omit any information from the published decision which it considers would be likely to damage the interests of persons other than—

(i)

the authorised provider against whom the complaint is made, and

(ii)

where the authorised provider is a natural person, the partner or family of that person,

(but subject to the body publishing its reasons for any such omission),

(e)

where such a complaint is not upheld, allow the body to omit the name of the authorised provider against whom the complaint is made from the published decision where it considers that to be appropriate.

(8)

In relation to draft regulatory schemes which seek a right of audience, the practice rules must also include provision—

(a)

stating general criteria to which authorised providers should have regard in determining whether to accept instructions to represent a person or provide legal services in particular circumstances,

(b)

stating the order of precedence of courts,

(c)

securing that, where reasonably practicable, any person wishing to be represented before any court by one of its providers holding an appropriate right of audience is so represented.

(9)

For the purposes of the rules required under subsection (8), the Inner and Outer Houses of the Court of Session and the High Court of Justiciary exercising its appellate jurisdiction may be treated as separate courts.

(10)

Regulations under subsection (1) are subject to the affirmative procedure.

25Regulatory scheme – additional matters to be included: further provision

(1)

The Scottish Ministers may exercise the power to make regulations under section 24(1) only if they have received a request to exercise the power from—

(a)

the Lord President,

(b)

an accredited regulator, or

(c)

the independent advisory panel of the Commission.

(2)

Before making a request under subsection (1), the person making the request (“the requester”) must—

(a)

consult—

(i)

each accredited regulator (or each other accredited regulator if the requester is an accredited regulator),

(ii)

the independent advisory panel of the Commission unless the panel is the requester,

(iii)

the Competition and Markets Authority, and

(iv)

such other person or body as the requester considers appropriate, and

(b)

except where the requester is the Lord President, secure the Lord President’s agreement to the making of the request.

(3)

For the purpose of seeking the Lord President’s agreement under subsection (2)(b), the requester must provide to the Lord President—

(a)

a document setting out—

(i)

an explanation of the change sought by the proposed exercise of the power, and

(ii)

the reasons for seeking the change,

(b)

copies of any written representations received in response to the consultation under subsection (2)(a).

(4)

A request under subsection (1) must include—

(a)

a document setting out—

(i)

an explanation of the change sought by the proposed exercise of the power, and

(ii)

the reasons for seeking the change,

(b)

copies of any written representations received in response to the consultation under subsection (2)(a), and

(c)

except where the requester is the Lord President, written confirmation of the Lord President’s agreement to the making of the request.

(5)

As soon as reasonably practicable after making a request under subsection (1), the requester must publish the documents included with the request in such manner as the requester considers appropriate (having regard to the desirability of the documents being accessible to those likely to have an interest in them).

26Publication of draft regulatory scheme and representations

(1)

A body making an application under section 23 must—

(a)

make a copy of its draft regulatory scheme available electronically for the duration of the relevant period,

(b)

send a copy of its draft regulatory scheme to the following persons (and inform them that they may make written representations concerning the draft scheme in accordance with subsection (4))—

(i)

the Competition and Markets Authority,

(ii)

the Commission, and

(iii)

the independent advisory panel of the Commission,

(c)

at the time of making the application, place an advertisement containing the information described in subsection (2) in the Edinburgh Gazette and in a daily newspaper circulating throughout Scotland.

(2)

An advertisement required under subsection (1)(c) must state that—

(a)

a copy of the draft regulatory scheme is available electronically during the relevant period,

(b)

written representations concerning the draft scheme may be made to the Lord President, and

(c)

for such representations to be considered, they must meet the requirements described in subsection (4).

(3)

Any person may make written representations concerning a draft regulatory scheme during the relevant period.

(4)

Representations under subsection (3) must—

(a)

be made to the Lord President, and

(b)

be received by the Lord President before the expiry of the relevant period.

(5)

In this section—

“draft regulatory scheme” in relation to an application made under section 23, means the draft regulatory scheme required to accompany the application under section 23(4),

“relevant period” in relation to an application under section 23, means the period of six weeks beginning with the date on which the application is made.