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Schedule 2Further provision about measures open to the Lord President

(introduced by section 19(3))

Part 1Performance targets

Application

1

This Part applies where the Lord President—

(a)

is satisfied that an act or omission of a category 1 or category 2 regulator (or a series of acts or omissions) has had, or is likely to have, an adverse impact on the observance of any of the regulatory objectives, or

(b)

considers that, for any other reason, it is necessary or expedient for one or more performance targets to be set as respects a category 1 or category 2 regulator.

Power to set targets

2 (1)

The Lord President may—

(a)

set one or more performance targets for the regulator in relation to its regulatory functions,

(b)

require the regulator to set one or more performance targets in relation to its regulatory functions.

(2)

The regulator must (so far as practicable) comply with a performance target set for it under sub-paragraph (1)(a) or (b).

Decision

3

Where the Lord President decides to proceed with a measure under this Part—

(a)

the decision notice required under paragraph 19(2) must contain any target set or any requirement made by the Lord President to set a target, and

(b)

the regulator must publish any target set by it following a requirement under paragraph 2(1)(b) in such manner as it considers most appropriate for bringing it to the attention of any relevant person or body.

Part 2Directions

Application

4

This Part applies where the Lord President is satisfied that—

(a)

an act or omission of a category 1 or category 2 regulator (or a series of acts or omissions) has had, or is likely to have, an adverse impact on the observance of any of the regulatory objectives,

(b)

a category 1 or category 2 regulator has failed to comply with a requirement imposed on it by or under this Act (including a direction given in accordance with this Part), or

(c)

a category 1 or category 2 regulator has failed to adhere to its internal governance arrangements (including, in particular, those relating to the independent and effective exercise of its regulatory functions).

Power to direct

5 (1)

The Lord President may direct the regulator to take—

(a)

in a case falling within paragraph 4(a), such action as the Lord President considers will counter the adverse impact, mitigate its effect or prevent its recurrence,

(b)

in a case falling within paragraph 4(b) or (c), such action as the Lord President considers will remedy the failure, mitigate its effect or prevent its recurrence.

(2)

A direction under sub-paragraph (1) must not be framed by reference to—

(a)

a specific disciplinary case, or

(b)

other specific regulatory proceedings.

(3)

A direction under sub-paragraph (1) may require the regulator to refrain from doing something.

(4)

The regulator must (so far as practicable) comply with a direction given to it in accordance with this Part.

Decision

6

Where the Lord President decides to proceed with a measure under this Part, the decision notice required under paragraph 19(2) must contain the direction.

Extension of time to comply

7 (1)

The Lord President may, on an application by a category 1 or category 2 regulator made at any time after the giving of a direction, allow the regulator additional time to comply with the direction.

(2)

Where such additional time is allowed, the Lord President must publicise that fact in such manner as the Lord President considers most likely to bring it to the attention of any relevant person or body.

Enforcement

8 (1)

If at any time it appears to the Lord President that a category 1 or category 2 regulator has failed to comply with a direction given under this Part, the Lord President may make an application to the Court of Session for an order as described in sub-paragraph (2).

(2)

On an application under sub-paragraph (1), the Court may (if it decides that the regulator has failed to comply with the direction) order the regulator to take such steps as the Court considers appropriate to secure compliance with the direction.

Part 3Censure

Application

9

This Part applies where the Lord President is satisfied that—

(a)

an act or omission of a category 1 or category 2 regulator (or a series of acts or omissions) has had, or is likely to have, an adverse impact on the observance of any of the regulatory objectives, or

(b)

a category 1 or category 2 regulator has failed to comply with a requirement imposed on it by or under this Act.

Power to censure

10

The Lord President may make and publish a statement censuring the regulator for—

(a)

the act or omission (or series of acts or omissions), or

(b)

the failure.

Decision

11

Where the Lord President decides to proceed with a measure under this Part, the decision notice required under paragraph 19(2) must contain the statement (and the statement need not be published separately).

Part 4Making changes to regulatory functions

Application

12

This Part applies when the Lord President is satisfied that—

(a)

(b)

the matter cannot be addressed adequately by the Lord President taking any of the measures mentioned in section 19(4)(a) to (c).

Power to make changes

13 (1)

Where the Lord President is taking a measure mentioned in section 19(4)(d), the Lord President may—

(a)

in a case where the regulator falls within sub-paragraph (6), direct the regulator to change its scheme in such manner and by such date as the Lord President may specify,

(b)

in any other case, ask the Scottish Ministers to exercise the power under sub-paragraph (4) to change the regulatory functions exercised by the regulator.

(2)

Where the Lord President is taking a measure mentioned in section 19(4)(e), the Lord President may—

(a)

in a case where the regulator falls within sub-paragraph (6), direct the regulator to change its scheme in such manner and by such date as the Lord President may specify,

(b)

in any other case, ask the Scottish Ministers to exercise the power under sub-paragraph (4) to change the way in which any of the regulatory functions of the regulator are to be exercised by it.

(3)

Where the Lord President is taking a measure mentioned in section 19(4)(f) in relation to a regulator that falls within sub-paragraph (6), the Lord President may revoke the approval of the regulator’s application under section 28 of this Act or, as the case may be, under section 26(6) of the 1990 Act.

(4)

Following a request from the Lord President under sub-paragraph (1)(b) or (2)(b), the Scottish Ministers may by regulations make provision to change—

(a)

the regulatory functions exercised by the regulator, or

(b)

the way in which any of the regulatory functions of the regulator are to be exercised by it.

(5)

The Scottish Ministers may exercise the power under sub-paragraph (4) only in accordance with such a request.

(6)

A regulator falls within this paragraph if it is an accredited regulator or if it acquired rights for its members to provide legal services (other than rights to conduct litigation and rights of audience) by virtue of an application under section 25 of the 1990 Act.

(7)

Regulations under this paragraph may amend an enactment.

(8)

For the purposes of sub-paragraphs (1)(a) and (2)(a), the regulator’s scheme is the scheme that was approved under section 26(6) of the 1990 Act or, as the case may be, section 28 of this Act (as such scheme may be amended from time to time).

Decision

14 (1)

Where the Lord President decides to proceed with a measure under this Part, the decision notice required under paragraph 19(2) must—

(a)

state—

(i)

in a case where the regulator falls within paragraph 13(6), the changes that the Lord President intends to direct the regulator to make to its scheme or, as the case may be, that the Lord President intends to remove all of the regulatory functions of the regulator,

(ii)

in any other case, the changes that the Lord President intends to ask the Scottish Ministers to make to the regulatory functions exercised by the regulator or to the way in which any of the regulatory functions of the regulator are to be exercised by it, and

(b)

explain why the Lord President considers the changes to be appropriate.

(2)

The date by which regulations may be made must not be within the period of 3 months beginning with the day on which the decision notice is given to the regulator.

Parliamentary procedure for regulations

15 (1)

The Scottish Ministers may not make regulations under paragraph 13(4) unless—

(a)

the Lord President has given the regulator a decision notice as required under paragraph 19(2),

(b)

they have laid before the Scottish Parliament—

(i)

the draft regulations, and

(ii)

an explanatory document, and

(c)

the draft regulations have been approved by resolution of the Parliament.

(2)

The explanatory document must give details of—

(a)

any representations received as a result of the consultation under paragraph 18,

(b)

any representation received as a result of the consultation on the draft regulations,

(c)

the changes (if any) made to the proposed measure or regulations as a result of those representations.

Part 5Procedure for imposing a measure

Application

16

This Part applies to the Lord President taking any measure mentioned in section 19(4) against a category 1 or category 2 regulator.

Notice of intention

17 (1)

Before taking a measure against the regulator, the Lord President must give it a notice (a “notice of intention”) of the Lord President’s intention to do so.

(2)

The notice of intention must set out the details of the proposed measure and, in particular, must—

(a)

state the type of measure (or measures) that the Lord President intends to take,

(b)

set out the details of what the Lord President proposes under the measure,

(c)

explain why the Lord President is satisfied that it is appropriate to take the measure.

Consultation

18 (1)

The regulator has 28 days beginning with the date of receipt of the notice of intention (or such longer period as the regulator and the Lord President may agree) to make representations to the Lord President about the proposed measure.

(2)

The Lord President must—

(a)

publish the notice of intention in such manner as the Lord President considers most appropriate for bringing it to the attention of any relevant person or body,

(b)

give a copy of the notice of intention to such person or body as the Lord President considers appropriate,

(c)

after the expiry of the period for representations—

(i)

give the recipients under paragraph (b) a copy of any representations received from the regulator,

(ii)

consult them accordingly in relation to the proposed measure (which consultation must provide at least 21 days for the consultees to respond).

(3)

Where the proposed measure is to remove all of the regulatory functions of the regulator as mentioned in section 19(4)(f), the Lord President must—

(a)

give a copy of the notice of intention under sub-paragraph (2)(b) to each person who is authorised by the regulator to provide legal services (“the authorised providers”), and

(b)

consult the authorised providers in accordance with sub-paragraph (2)(c) about, in particular, in the event that all of the regulatory functions are removed from the regulator whether a majority of the authorised providers would like—

(i)

another category 1 or category 2 regulator to authorise them to exercise their acquired rights (or such of them as may be surrendered) and regulate their exercise of the acquired rights (if that other regulator is content to so authorise and regulate them), or

(ii)

to form a body and submit an application under section 23 seeking accreditation of the body to authorise them to exercise their acquired rights (or such of them as may be surrendered) and regulate their exercise of the acquired rights.

(4)

For the purpose of sub-paragraph (3), the Lord President may direct the regulator to give to each of the authorised providers (on the Lord President’s behalf) a copy of the notice of intention and the information required for the consultation.

Decision

19 (1)

The Lord President must have regard to any representations made to the Lord President by the regulator, or any consultee under paragraph 18(2)(c), when deciding whether to proceed with the proposed measure.

(2)

The Lord President must—

(a)

give a notice of the Lord President’s decision (a “decision notice”) to the regulator,

(b)

notify the consultees under paragraph 18(2)(c) of the Lord President’s decision,

(c)

publish the decision notice in such manner as the Lord President considers most appropriate for bringing it to the attention of any relevant person or body.

(3)

The decision notice must—

(a)

explain the Lord President’s reasons for proceeding with the measure,

(b)

set out the details of the action the Lord President is taking under the measure as required by the relevant Part of this schedule, and

(c)

if appropriate, specify the date from which the measure will take effect (which may be the date on which that notice is given).

Meaning of relevant persons or bodies

20

For the purposes of this Part, relevant persons or bodies include—

(a)

other category 1 and category 2 regulators,

(b)

legal services providers,

(c)

organisations representing the interests of consumers,

(d)

members of the public.