Turkey - Technical Assistance Project For State Economic Enterprises : Loan 2400 - DYB Agreement - Conformed
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No obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise shall prevent the Commissioners of Inland Revenue (in this section referred to as “the Commissioners”) from disclosing—
to the Lord Advocate, information as regards any recognised body such as is mentioned in subsection (2) below,
to any person who requests it, the name of any recognised body and the address last used by the Commissioners for any communication with the body and the year when such communication occurred.
A recognised body referred to in subsection (1)(a) above is a body—
which appears to the Commissioners to be or to have been carrying on activities which are not charitable or to be or to have been applying any of its funds for purposes which are not charitable;
which is certified by the Lord Advocate as being a body in respect of which information has been provided to the Scottish charities nominee by a relevant institution in pursuance of section 12 of this Act.
Where any information is made available to any person as mentioned in subsection (1)(b) above, the Commissioners shall include in such information any matter noted by them in respect of the body in pursuance of a requirement made by the Lord Advocate under this Part of this Act.
A recognised body shall provide to any person who requests it, on payment of such reasonable charge in respect of copying and postage as the body may stipulate, a copy of its explanatory document.
Where any recognised body, within one month of its being requested to do so by any person, fails to provide to that person a copy of its explanatory document as mentioned in subsection (4) above, the Lord Advocate, on a complaint being made to him by such person, may direct that the fact of such failure shall be noted for the purposes of subsection (3) above.
Where there has been a failure such as is mentioned in subsection (5) above, the court may, on an application being made by the Lord Advocate, interdict the body and any person concerned in its management or control from engaging in any activity specified in the application until the Lord Advocate intimates to the court that he is satisfied that the explanatory document has been provided.
In this Part of this Act “recognised body” means any body to which the Commissioners have given intimation, which has not subsequently been withdrawn, that relief will be due under section 505 of the Income and Corporation Taxes Act 1988 in respect of income of the body which is applicable and applied to charitable purposes only, being a body— and a recognised body shall be entitled to describe itself as “a Scottish charity”.
which is established under the law of Scotland; or
which is managed or controlled wholly or mainly in or from Scotland,
For the purposes of any proceedings under or by virtue of this Part of this Act, a certificate purporting to be signed by a person authorised to do so by the Commissioners and certifying that a body is a recognised body shall be sufficient evidence of that fact and of the authority of that person.
In this section “explanatory document” means— being a document which describes the nature of the body and of its charitable purposes.
the trust deed of a body or other document constituting the body; or
such other document as the Lord Advocate may approve,
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A non-recognised body shall not be entitled to represent itself or hold itself out as a charity.
For the purposes of this Part of this Act, any body which is not— is a non-recognised body.
a recognised body; or
a body which is—
registered as a charity in England and Wales under section 4 of the Charities Act 1960; or
a charity which is not required to register by virtue of subsection (4) of that section,
Where a non-recognised body represents itself or holds itself out as a charity, the court may, on an application made by the Lord Advocate, interdict the body from so representing itself or holding itself out until it becomes a body such as is mentioned in paragraph (a) or (b) of subsection (2) above.
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The Secretary of State may from time to time, by order, designate for the purposes of this section such recognised bodies as appear to him—
to have as their principal purpose the promotion of a religious objective;
to have as their principal activity the regular holding of acts of public worship; and
to be bodies which satisfy each of the conditions mentioned in subsection (2) below.
The conditions referred to in subsection (1)(c) above are—
subject to subsection (4) below, that the body has been established in Scotland for not less than 10 years;
that the body can demonstrate to the satisfaction of the Secretary of State that it has a membership of not less than 3,000 persons resident in Scotland who are 16 years of age or more; and
that the internal organisation of the body is such that one or more authorities in Scotland exercise supervisory and disciplinary functions in respect of the component elements of the body and , in particular, that there are imposed on such component elements requirements as to the keeping of accounting records and the auditing of accounts which appear to the Secretary of State to correspond to those required by sections 4 and 5 of this Act.
Where a body is, for the time being, designated under subsection (1) above the following provisions of this Part of this Act shall not apply to the body nor to any component or structural element of the body which is, itself, a recognised body— section 1(6); section 4; section 5, other than subsections (6) to (8) and subsection (12); section 6(2) and (6); section 7; and section 8.
The Secretary of State may determine that the condition mentioned in subsection (2)(a) above shall not be required to be satisfied in the case of a body—
which has been created by the amalgamation of two or more bodies each of which, immediately before the amalgamation, either was designated under this section or appears to the Secretary of State to have been eligible for such designation; or
which has been constituted by persons who have removed themselves from membership of a body which, immediately before such removal, was so designated or appears to the Secretary of State to have been eligible for such designation.
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The persons concerned in the management or control of every recognised body shall ensure that there are kept in respect of the body, accounting records which are sufficient to show and explain the body’s transactions and which are such as to—
disclose with reasonable accuracy, at any time, the financial position of the body at that time; and
enable them to ensure that any statement of accounts prepared under section 5 of this Act complies with the requirements of that section.
The accounting records shall in particular contain—
entries showing from day to day all sums of money received and expended by the body, and the matters in respect of which the receipt and expenditure takes place; and
a record of the assets and liabilities of the body.
The accounting records which are required by this section to be kept in respect of a recognised body shall be preserved, without prejudice to any requirement of any other enactment or rule of law, for six years from the date on which they are made.
The Secretary of State may, by regulations—
prescribe requirements as to the places where and the persons by whom the accounting records of recognised bodies, including bodies which have been wound up or have ceased to be active, are to be kept; and
provide that such class or classes of recognised body as may be prescribed shall be exempt from such requirements of this section and section 5 of this Act as may be prescribed.
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The persons concerned in the management or control of every recognised body shall ensure that, in respect of each financial year of the body, there is prepared a statement of accounts.
Subject to subsection (3) below, the statement of accounts of every recognised body shall comprise—
a balance sheet as at the last day of the year;
an income and expenditure account; and
a report as to the activities of the body, having regard to its charitable purposes.
As regards such class or classes of recognised body as the Secretary of State may, by regulations, prescribe a recognised body may elect that in respect of any financial year its statement of accounts shall, instead of the requirements of subsection (2) above, comprise—
a statement of balances as at the last day of the year;
a receipts and payments account; and
a report as to the activities of the body, having regard to its charitable purposes.
The balance sheet shall give a true and fair view of the state of affairs of the body as at the end of the financial year; and the income and expenditure account shall give a true and fair view of the surplus or deficit of the body for the financial year.
The Secretary of State may, by regulations, prescribe— and different provision may be prescribed for different bodies or classes of bodies.
the form and content of the statement of accounts;
any additional information to be provided by way of notes to the accounts; and
such requirements as to auditing of the balance sheet, statement of balances, income and expenditure account and receipts and payments account and any notes thereon and as to the consideration of the report as he considers appropriate,
The Lord Advocate may require any recognised body to furnish him, without payment therefor, with a copy of its statement of accounts.
Every such body shall—
make available to any person who requests it, on payment of such reasonable charge in respect of copying and postage as the body may stipulate, a copy of its most recent statement of accounts;
inform any person who requests it of its accounting reference date.
Where any recognised body fails, within 10 months, or such longer period as the Lord Advocate may allow, after the end of a financial year, to have prepared a statement of accounts, the Lord Advocate may require that such fact shall be noted for the purposes of section 1(3) of this Act.
Where a body has failed to have prepared a statement of accounts as mentioned in subsection (8) above, the Lord Advocate may require the persons concerned in the management or control of the body to have prepared a statement of accounts, by such date as he may require.
In any case where the statement of accounts has not been prepared by the date specified under subsection (9) above, the Lord Advocate may appoint a suitably qualified person to prepare a balance sheet and income and expenditure account or, in the case of a body which belongs to a class to which subsection (3) above applies if it appears to such person more appropriate to do so, a statement of balances and receipts and payments account; and a person so appointed shall be entitled, for that purpose— and the persons concerned in the management or control of the body shall be personally liable jointly and severally for the expenses incurred in the performance of his functions under this section by any person so appointed.
on giving prior notice in writing, to enter, at all reasonable times, the premises of the body;
to take possession of any document appearing to him to relate to the financial affairs of the body;
to require any person concerned in the management or control of the body to give him such information as he may reasonably require relating to the activities of the body,
A person appointed under subsection (10) above shall make a report to the Lord Advocate as to the affairs and accounting records of the body and shall send a copy of the report to any person appearing to him to be concerned in the management and control of the body.
Where any such body, within one month of its being requested to do so by any person— the Lord Advocate, on a complaint being made to him by such person, may direct that the fact of such failure shall be noted for the purposes of section 1(3) of this Act.
fails to provide to that person a copy of its most recent statement of accounts as mentioned in subsection (7) above; or
fails to inform that person of its accounting reference date,
Where in the case of any recognised body, there has been a failure such as is mentioned in subsection (9) or (12) above the court may, on an application being made by the Lord Advocate, interdict the body and any person concerned in its management or control from engaging in any activity specified in the application until the Lord Advocate intimates to the court that he is satisfied that the failure has been rectified.
Section 4 of this Act and subsections (1), (2), (3), (4), (5), (8), (9), (10) and (11) and, so far as it relates to a failure such as is mentioned in the said subsection (9), subsection (13) of this section shall not apply to any recognised body which is — and, in the application of the remainder of this section to such a body, references to its income and expenditure account and its report shall be construed as references to its profit and loss account and its directors' report.
a company within the meaning of section 735 of the Companies Act 1985; or
an unregistered company to which Part VII of that Act (accounts and audit) applies by virtue of section 718 of that Act,
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The Lord Advocate may at any time make inquiries, either generally or for particular purposes, with regard to— or with regard to any class of any such bodies.
a recognised body;
a registered, or non-registered, charity operating as such in Scotland; or
a non-recognised body which appears to him to represent itself or hold itself out as a charity and—
is established under the law of Scotland;
is managed or controlled wholly or mainly in or from Scotland; or
has any moveable or immoveable property situated in Scotland,
Where it appears to the Lord Advocate— he may, if the body is managed or controlled wholly or mainly in or from Scotland, suspend any person concerned in its management or control from the exercise of his functions (but not for a period longer than 28 days), and may make provision as respects the period of the suspension for matters arising out of it.
in the case of a body referred to in paragraph (a) or (b) of subsection (1) above—
that there is or has been any misconduct or mismanagement in its administration; or
that it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes; or
in any other case, that a body is a non-recognised body which appears to him to represent itself or hold itself out as a charity,
The Lord Advocate may from time to time nominate officers for the purpose of making inquiries such as are mentioned in subsection (1) above.
A nominated officer may by notice in writing require any person who he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to inquiries being made under this section at a specified place and either at a specified time or forthwith.
A nominated officer may, for the purpose of making inquiries under this section— either by a specified time or forthwith.
require any person having in his possession or control any records relating to a body which is the subject of inquiries under this section to furnish him with copies of or extracts from any such records; or
unless it forms part of the records of a court or of a public body or local authority, require such a person to transmit the record itself to him for inspection,
If any person fails or refuses to comply with a requirement made under subsection (4) or (5) above, the nominated officer may apply by summary application to the sheriff for an order requiring that person to— and the sheriff shall, if he considers it expedient to do so, make such an order.
attend and to answer such questions or to furnish such information at a time and place specified in the order;
furnish the nominated officer with copies or extracts of such records as are specified in the order and by such time as is specified in the order;
transmit to the nominated officer such records as are specified in the order by such time as is specified in the order,
A person shall not be excused from answering such questions as he may be required to answer by virtue of subsection (6) above on the ground that the answer may incriminate or tend to incriminate him, but a statement made by him in answer to any such question shall not be admissible in evidence in any subsequent criminal proceedings against him, except in a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933.
A person who fails to comply with an order under subsection (6) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Any person who wilfully alters, suppresses, conceals or destroys any record which he may be required to furnish or transmit under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 6 months or to both.
Subject to subsections (11) and (12) below, there shall be paid to any person who complies with a requirement under subsection (4) or (5) above such expenses as he has reasonably incurred in so complying.
A nominated officer shall, for the purpose of making inquiries under this section, be entitled without payment to inspect and take copies of or extracts from records in respect of which no requirement can be made under paragraph (b) of subsection (5) above.
A nominated officer shall, for the purpose of making inquiries under this section, be entitled without payment to keep any copy or extract furnished to him under this section; and where a record transmitted to him for his inspection relates only to one or more recognised body and is not held by any person entitled as trustee or otherwise of such a body to the custody of it, the nominated officer may keep it or may deliver it to the trustees of such a body or to any other person who may be so entitled.
In this section, “record” means a record held in any medium and includes books, documents, deeds or papers; and, in this Part of this Act—
the Council, a solicitor;
relating to the arranging of a loan; or
“non-registered charity” means a charity which, by virtue of sub-section (4) of section 4 of that Act, is not required to register under that section.
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Where it appears to the court, in the case of a recognised body or a registered, or non-registered, charity which is managed or controlled wholly or mainly in or from Scotland, that— it may, on the application of the Lord Advocate, exercise any of the powers specified in paragraphs (a) to (f) of subsection (4) below.
there is or has been any misconduct or mismanagement in its administration; or
it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes,
Where the court is satisfied, in the case of such a body as is mentioned in subsection (1) above, that— it may, on the application of the Lord Advocate, exercise any of the powers specified in paragraphs (f) to (j) of subsection (4) below.
there is or has been any misconduct or mismanagement in its administration; and
it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes,
Where the court is satisfied that a non-recognised body— it may, on the application of the Lord Advocate, exercise any of the powers specified in subsection (4) below.
represents itself or holds itself out as a charity; and
is established under the law of Scotland or is managed or controlled wholly or mainly in or from Scotland or has moveable or immoveable property situated in Scotland,
The powers which may be exercised under this subsection by the court are—
to interdict ad interim the body from representing itself or holding itself out as a charity or from such other action as the court, on the application of the Lord Advocate, thinks fit;
to suspend any person concerned in the management or control of the body;
to appoint ad interim a judicial factor to manage the affairs of the body;
to make an order requiring any bank or other person holding money or securities on behalf of the body or of any person concerned in its control and management not to part with the money or securities without the court’s approval;
to make an order, notwithstanding anything in the trust deed or other document constituting the body, restricting the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the body without the approval of the court;
to appoint a trustee, and section 22 of the Trusts (Scotland) Act 1921 shall apply to such a trustee as if he had been appointed under that section;
to interdict the body from representing itself or holding itself out as a charity or from such other action as the court, on the application of the Lord Advocate, thinks fit;
to remove any person concerned in the management or control of the body;
to appoint a judicial factor to manage the affairs of the body.
Where the court is satisfied, in the case of such a body as is mentioned in subsection (1) above, that— or where the court is satisfied as mentioned in subsection (3) above in the case of a non-recognised body, it may approve a scheme, presented to it by the Lord Advocate and prepared by him in accordance with regulations made by the Secretary of State, for the transfer of any assets of the body to such body as the Lord Advocate specifies in the scheme, being a recognised body or a registered, or non-registered, charity which is managed or controlled wholly or mainly in or from Scotland.
there has been in its administration any misconduct or mismanagement;
it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes;
it is not practicable nor in the best interests of the body to retain its existing administrative structure and, if appropriate, trustee body; and
in its opinion, the body’s purpose would be achieved better by transferring its assets to another such body,
In the case of a registered, or non-registered, charity which is managed or controlled wholly or mainly outside Scotland but on behalf of which a bank or other person in Scotland holds moveable property, the court may, on the application of the Lord Advocate acting on information received from the Charity Commissioners for England and Wales, make an order requiring the bank or person not to part with that property without the court’s approval and such an order shall be subject to such conditions as the court thinks fit.
Where the court has made an order under subsection (6) above and is satisfied, in the case of such a charity, that— it may, on the further application of the Lord Advocate, make an order confirming the order made under subsection (6) above and such an order shall be subject to such conditions as the court thinks fit.
there has been in its administration any misconduct or mismanagement; and
it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes,
Where the court has made an order under subsection (6) above and it is satisfied as to the matters specified in subsection (7) above in respect of such a charity, if in its opinion the moveable property would not be applied for the purposes of the charity, it may, on the further application of the Lord Advocate, transfer that property to such body as the Lord Advocate specifies in the application, being a body—
which is a recognised body or registered, or non-registered, charity the purposes of which closely resemble the purpose of the charity whose moveable property is transferred; and
which has intimated that it will receive that property.
The court shall have power—
to vary or recall an order made under paragraph (d) or (e) of subsection (4) above or under subsection (6) or (7) above;
to recall the suspension of a person under paragraph (b) of subsection (4) above
to approve a scheme under subsection (5) above subject to such modifications as it thinks fit;
subject to subsection (10) below, to award expenses as it thinks fit in any proceedings before it under this section.
In a case where, but for the provisions of this subsection, the court would have awarded expenses against the body which is the subject of the proceedings, the court—
shall have regard to the desirability of applying the property of the body for the charitable purposes of that body, or the charitable purposes which are purported to be the purposes of that body, and
may award expenses against a person concerned in the control or management of the body, or against any such persons jointly and severally.
Where the court exercises in respect of a recognised body any power specified in subsection (4) or (5) above, the Lord Advocate may require that exercise to be noted for the purposes of section 1(3) of this Act.
In this section “the court” means the Court of Session.
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A person who— shall, subject to the provisions of this section, be disqualified from being concerned with the management or control of a recognised body.
has been convicted of an offence involving dishonesty;
is an undischarged bankrupt;
has been removed, under section 7 of this Act, from being concerned in the management or control of any body; or
is subject to a disqualification order under the Company Directors Disqualification Act 1986,
A person shall not be disqualified under subsection (1) above if— but the Lord Advocate shall not grant a waiver where to do so would prejudice the operation of the Company Directors Disqualification Act 1986.
the conviction mentioned in that subsection is spent by virtue of the Rehabilitation of Offenders Act 1974; or
the Lord Advocate has thought fit to grant in writing a waiver of that disqualification in respect of that person,
A person who is concerned with the management or control of a recognised body whilst disqualified by virtue of this section shall be guilty of an offence and liable—
on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both; and
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.
The acts, in relation to the management or control of such a body, of such a person as is mentioned in subsection (1) above shall not be invalid only by reason of his disqualification under that subsection.
Proceedings for an offence under subsection (3) above shall not be commenced after the end of the period of 3 years beginning with the day on which the offence was committed but, subject to that, may be commenced at any time within 6 months from the date on which evidence sufficient in the opinion of the procurator fiscal to warrant proceedings came to his knowledge; and a certificate of the procurator fiscal as to the date on which such evidence came to his knowledge shall be conclusive evidence of that fact.
In this section, “undischarged bankrupt” means a person who has had his estate sequestrated, been adjudged bankrupt or has granted a trust deed for or entered into an arrangement with his creditors and has not been discharged under or by virtue of—
section 54 or section 75(4) of the Bankruptcy (Scotland) Act 1985;
an order under paragraph 11 of Schedule 4 to that Act of 1985;
section 279 or section 280 of the Insolvency Act 1986; or
any other enactment or rule of law subsisting at the time of his discharge
Where, in the case of any public trust, the court is satisfied— the court, on the application of the trustees, may, subject to subsection (2) below, approve a scheme for the variation or reorganisation of the trust purposes.
that the purposes of the trust, whether in whole or in part—
have been fulfilled as far as it is possible to do so; or
can no longer be given effect to, whether in accordance with the directions or spirit of the trust deed or other document constituting the trust or otherwise;
that the purposes of the trust provide a use for only part of the property available under the trust;
that the purposes of the trust were expressed by reference to—
an area which has, since the trust was constituted, ceased to have effect for the purpose described expressly or by implication in the trust deed or other document constituting the trust; or
a class of persons or area which has ceased to be suitable or appropriate, having regard to the spirit of the trust deed or other document constituting the trust, or as regards which it has ceased to be practicable to administer the property available under the trust; or
that the purposes of the trust, whether in whole or in part, have, since the trust was constituted—
been adequately provided for by other means; or
ceased to be such as would enable the trust to be entered in the Scottish Charity Register; or
ceased in any other way to provide a suitable and effective method of using the property available under the trust, having regard to the spirit of the trust deed or other document constituting the trust,
The court shall not approve a scheme as mentioned in subsection (1) above unless it is satisfied that the trust purposes proposed in the scheme will enable the resources of the trust to be applied to better effect consistently with the spirit of the trust deed or other document constituting the trust, having regard to changes in social and economic conditions since the time when the trust was constituted.
Where any of paragraphs (a) to (d) of subsection (1) above applies to a public trust, an application may be made under this section for the approval of a scheme — and the court, if it is satisfied that the conditions specified in subsection (2) above are met, may approve such a scheme.
for the transfer of the assets of the trust to another public trust, whether involving a change to the trust purposes of such other trust or not; or
for the amalgamation of the trust with one or more public trusts,
Subject to subsection (5) below, an application for approval of a scheme under this section shall be made to the Court of Session.
From such day as the Lord Advocate may, by order, appoint, an application for approval of a scheme under this section may be made by a public trust having an annual income not exceeding such amount as the Secretary of State may, by order, prescribe—
to the sheriff for the place with which the trust has its closest and most real connection;
where there is no such place as is mentioned in paragraph (a) above, to the sheriff for the place where any of the trustees resides;
where neither paragraph (a) nor (b) above applies, to the sheriff of Lothian and Borders at Edinburgh.
Every application under this section shall be intimated to the Lord Advocate who shall be entitled to enter appearance as a party in any proceedings on such application, and he may lead such proof and enter such pleas as he thinks fit; and no expenses shall be claimable by or against the Lord Advocate in any proceedings in which he has entered appearance under this subsection.
This section shall be without prejudice to the power of the Court of Session to approve a cy pres scheme in relation to any public trust.
Where a majority of the trustees of any public trust having an annual income not exceeding £5,000 are of the opinion— subsection (2) below shall apply in respect of the trust.
that the purposes of the trust, whether in whole or in part—
have been fulfilled as far as it is possible to do so; or
can no longer be given effect to, whether in accordance with the directions or spirit of the trust deed or other document constituting the trust or otherwise;
that the purposes of the trust provide a use for only part of the property available under the trust;
that the purposes of the trust were expressed by reference to—
an area which has, since the trust was constituted, ceased to have effect for the purpose described expressly or by implication in the trust deed or other document constituting the trust; or
a class of persons or area which has ceased to be suitable or appropriate, having regard to the spirit of the trust deed or other document constituting the trust, or as regards which it has ceased to be practicable to administer the property available under the trust; or
that the purposes of the trust, whether in whole or in part, have, since the trust was constituted—
been adequately provided for by other means; or
ceased to be such as would enable the trust to be entered in the Scottish Charity Register; or
ceased in any other way to provide a suitable and effective method of using the property available under the trust, having regard to the spirit of the trust deed or other document constituting the trust,
Where this subsection applies in respect of a trust, the trustees may determine that, to enable the resources of the trust to be applied to better effect consistently with the spirit of the trust deed or other document constituting the trust—
a modification of the trust’s purposes should be made;
the whole assets of the trust should be transferred to another public trust; or
that the trust should be amalgamated with one or more public trusts.
Where the trustees of a trust determine as mentioned in subsection (2)(a) above, they may, subject to subsections (4) to (6) below, pass a resolution that the trust deed be modified by replacing the trust purposes by other purposes specified in the resolution.
The trustees shall ensure that, so far as is practicable in the circumstances, the purposes so specified are not so far dissimilar in character to those of the purposes set out in the original trust deed or other document constituting the trust that such modification of the trust deed would constitute an unreasonable departure from the spirit of such trust deed or other document.
Before passing a resolution under subsection (3) above the trustees shall have regard—
where the trust purposes relate to a particular locality, to the circumstances of the locality; and
to the extent to which it may be desirable to achieve economy by amalgamating two or more trusts.
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Subject to subsection (14) below, a modification of trust purposes under this section shall not have effect before the expiry of a period of two months commencing with the date on which any advertisement in pursuance of regulations made under subsection (13) below is first published.
Where the trustees determine as mentioned in subsection (2)(b) above they may pass a resolution that the trust be wound up and that the assets of the trust be transferred to another trust or trusts the purposes of which are not so dissimilar in character to those of the trust to be wound up as to constitute an unreasonable departure from the spirit of the trust deed or other document constituting the trust to be wound up.
Before passing a resolution under subsection (8) above, the trustees shall—
where the trust purposes relate to a particular locality, have regard to the circumstances of the locality;
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ascertain that the trustees of the trust to which it is proposed to transfer the assets will consent to the transfer of the assets.
Where the trustees determine as mentioned in subsection (2)(c) above, they may pass a resolution that the trust be amalgamated with one or more other trusts so that the purposes of the trust constituted by such amalgamation will not be so dissimilar in character to those of the trust to which the resolution relates as to constitute an unreasonable departure from the spirit of the trust deed or other document constituting the last mentioned trust.
Before passing a resolution under subsection (10) above, the trustees shall—
where the trust purposes relate to a particular locality, have regard to the circumstances of the locality;
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ascertain that the trustees of any other trust with which it is proposed that the trust will be amalgamated will agree to such amalgamation.
Subject to subsection (14) below, a transfer of trust assets or an amalgamation of two or more trusts under this section shall not be effected before the expiry of a period of two months commencing with the date on which any advertisement in pursuance of regulations made under subsection (13) below is first published.
The Secretary of State may, by regulations, prescribe the procedure to be followed by trustees following upon a resolution passed under subsection (3), (8) or (10) above, and such regulations may, without prejudice to the generality, include provision as to advertisement of the proposed modification or winding up, the making of objections by persons with an interest in the purposes of the trust, notification to the Lord Advocate of the terms of the resolution and the time within which anything requires to be done.
If it appears to the Lord Advocate, whether in consideration of any objections made in pursuance of regulations made under subsection (13) above or otherwise— he may direct the trust not to proceed with the modification or, as the case may be winding up and transfer of funds or amalgamation.
that the trust deed should not be modified as mentioned in subsection (3) above;
that the trust should not be wound up as mentioned in subsection (8) above; or
that the trust should not be amalgamated as mentioned in subsection (10) above,
The Secretary of State may, by order, amend subsection (1) above by substituting a different figure for the figure, for the time being, mentioned in that subsection.
This section shall apply to any trust to which section 223 of the Local Government (Scotland) Act 1973 (property held on trust by local authorities) applies.
This section applies to any public trust which has an annual income not exceeding £1,000 where the trust deed or other document constituting the trust prohibits the expenditure of any of the trust capital.
In the case of any trust to which this section applies where the trustees— they may, subject to subsection (3) below, proceed with the expenditure of capital.
have resolved unanimously that, having regard to the purposes of the trust, the income of the trust is too small to enable the purposes of the trust to be achieved; and
are satisfied that either there is no reasonable prospect of effecting a transfer of the trust’s assets under section 10 of this Act or that the expenditure of capital is more likely to achieve the purposes of the trust,
Not less than two months before proceeding to expend capital, the trustees shall advertise their intention to do so in accordance with regulations made by the Secretary of State and shall notify the Lord Advocate of such intention.
If it appears to the Lord Advocate that there are insufficient grounds for the expenditure of capital he may apply to the court for an order prohibiting such expenditure, and if the court is satisfied that there are such insufficient grounds it may grant the order.
The Secretary of State may, by order, amend subsection (1) above by substituting a different figure for the figure, for the time being, mentioned in that subsection.
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The Secretary of State may appoint a person to be the Scottish charities nominee (in this section referred to as “the nominee”) who shall have the functions conferred by this section.
Where the nominee receives from a relevant institution the following information— and he is satisfied that the body is a recognised body, subsection (3) or, as the case may be, subsection (5) below shall apply as regards the body and such accounts.
that every account held by the institution in the name of or on behalf of a named body is dormant; and
the amount of the balance standing to the credit of the body in each such account,
Where the aggregate amount standing to the credit of the body in such accounts as are mentioned in subsection (2) above does not exceed £5,000, unless it appears to the nominee— he shall transfer the balance standing to the credit of the body in such accounts to such other recognised body as he may determine, having regard to the purposes of the body in whose name or on whose behalf the accounts are held and those of the body to which it is proposed to transfer the funds; and the body to which the funds are transferred under this subsection or subsection (4) below shall be entitled to apply such funds for its purposes as it thinks fit.
that a person is concerned in the management or control of the body; or
that there are circumstances relating to the body which would make it inappropriate to do so,
Where, in the case of a body to which subsection (3) above applies, the nominee is unable to ascertain the purposes of the body in whose name or on whose behalf such accounts are held, he shall transfer the balance standing in the name of the body concerned to such other recognised body as appears to him expedient.
Where the aggregate amount standing to the credit of the body in such accounts as are mentioned in subsection (2) above exceeds £5,000 or in any case to which paragraphs (a) or (b) of subsection (3) above applies, the nominee shall advise the Lord Advocate of the information received by him in respect of the body and of any other matter which appears to him to be relevant in the circumstances.
Where the Lord Advocate receives information in pursuance of subsection (5) above he shall inform the nominee— but if the Lord Advocate informs the nominee that he does not intend to proceed under either paragraph (a) or (b) above, subsection (3) above shall apply as regards the body and such accounts as are mentioned in subsection (2) above as if the aggregate amount of the balance referred to in subsection (3) did not exceed £5,000 and neither paragraph (a) nor (b) of that subsection applied.
in the case of a body which is a trust, whether he intends to exercise his power under section 13(2) of this Act to appoint new trustees to the body; or
in any case, if he intends to apply to the Court of Session for the appointment of an interim judicial factor under section 7(4)(c) of this Act,
Notwithstanding anything in any enactment or rule of law to the contrary, the nominee shall, by virtue of this subsection, have the right to effect any transaction (including a transaction closing the account) in relation to any account to which subsection (3) above applies; and the receipt of the nominee in respect of any funds withdrawn or transferred from an account by virtue of this subsection shall, as regards the interest of the nominee in respect of such funds, be a full and valid discharge to the relevant institution holding the account.
No liability (other than liability for a criminal offence) shall attach to the nominee in consequence of any act or omission of his in the performance of his functions under this section.
The power of the nominee to effect transactions in relation to the accounts of a body shall cease to have effect— and in any case to which paragraph (c) above applies, the nominee shall also inform the Lord Advocate of that fact.
when the Lord Advocate notifies him of his intention to proceed under subsection (6) above;
if the relevant institution by which the accounts are held notifies the nominee that the accounts held by or on behalf of the body are no longer dormant; or
where the nominee becomes aware of the identity of a person concerned in the management or control of the body, when he informs the institution of that fact,
The Secretary of State may, by regulations made under this section—
make provision as to the procedure to be followed by the nominee in exercising his powers under this section;
require the nominee to make to the Secretary of State an annual report as regards the exercise of his functions and such regulations may specify the form and content of such report; and the Secretary of State shall lay a copy of such report before each House of Parliament;
prescribe the circumstances in which and the extent to which the nominee may apply any interest accruing to any account as regards which subsection (3) above applies during any period for which he is entitled to effect transactions in respect of the account for the purpose of defraying his expenses in connection with the exercise of his functions under this section;
require the nominee to keep accounts as regards his outlays and expenses in connection with the exercise of his functions under this section; and
amend subsections (3) and (5) above by substituting a different figure for the figure for the time being mentioned in those subsections.
Where every account held by or on behalf of a body which appears to a relevant institution to be a recognised body is a dormant account, no obligation of confidentiality or requirement of secrecy (whether imposed by any enactment or rule of law or otherwise) shall prevent the institution from supplying to the nominee information such as is mentioned in subsection (12) below.
Information referred to in subsection (11) above is information relating to any account such as is mentioned in that subsection which consists of any of the following—
the amount of the balance of the account as at the date the information is supplied;
the last date on which a transaction (other than a transaction consisting only of the accrual of interest to the account) was effected in relation to the account;
so far as is known to the institution, the terms of the trust deed or other document constituting the body or any information as to the nature of the purposes of the body.
For the purpose of this section—
a “relevant institution” is—
an institution which is authorised by the Bank of England to operate a deposit-taking business under Part I of the Banking Act 1987;
a building society which is authorised by the Building Societies Commission under section 9 of the Building Societies Act 1986 to raise money from its members;
such other institution mentioned in Schedule 2 to the Banking Act 1987 as the Secretary of State may, by regulations made under this section, prescribe;
an account is dormant if—
in the period of ten years preceding the date on which the institution reviews the account, no transaction (other than a transaction consisting only of the accrual of interest to the account) has taken place in respect of the account; and
the institution has no knowledge of the identity of any person concerned in the management or control of the body in whose name or on whose behalf the account is held.
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Where a recognised body is a trust, notwithstanding anything to the contrary in the trust deed or other document constituting the trust, the trustees shall have power to appoint such number of additional trustees as will secure that, at any time, the number of trustees shall be not less than three.
Where in the case of any trust which is a recognised body— if it appears to the Lord Advocate expedient to do so, he may exercise the power in place of the trustees.
the number of trustees is less than three; and
it appears to the Lord Advocate that the trustees will not, or are unable to, exercise their power under subsection (1) above,
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This section applies to a recognised body which may be wound up by the Court of Session under or by virtue of Parts IV or V of the Insolvency Act 1986.
Where a body to which this section applies has power to alter the instruments establishing or regulating it, it shall not alter any charitable purposes in those instruments except in such a way as will enable the body to continue to be granted an exemption from tax by the Commissioners of Inland Revenue under section 505(1) of the Income and Corporation Taxes Act 1988 (exemption from tax of charities).
Notwithstanding section 124 of the Insolvency Act 1986, a petition for the winding-up under section 122 of that Act of a body to which this section applies may be presented by the Lord Advocate to any court in Scotland having jurisdiction.
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the Council of the Law Society of Scotland;
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3), 34(2), 35 and 36 shall be performed by:
the Court of Session; or
where it has jurisdiction, the sheriff court.
“advocate” means a member of the Faculty of Advocates practising as such;
“the 2007 Act” means the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5).
“arbitration” means any arbitration whether or not administered by a permanent arbitral institution;
the claimant fails to communicate his statement of claim in accordance with article 23(1), the arbitral tribunal shall terminate the proceedings;
“arbitral tribunal” means an arbitrator or a panel of arbitrators;
the respondent fails to communicate his statement of defence in accordance with article 23(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations;
“arbitrator” includes an arbiter;
any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.
“commercial”, in relation to an arbitration, includes matters arising from all relationships of a commercial nature, whether contractual or not;
“country” includes Scotland;
“court” means a body or organ of the judicial system of a State;
“relationships of a commercial nature” include, but are not limited to, the following transactions, namely any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road;
“State”, except in article 1(1), includes Scotland;
where a provision of this Law, except article 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third party, including an institution, to make that determination;
where a provision of this Law refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement;
where a provision of this Law, other than in articles 25(a) and 32(2)(a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim;
article headings are for reference purposes only and are not to be used for purposes of interpretation.
been guilty of professional misconduct; or
“executry services” means the drawing and preparation of papers on which to found or oppose an application for a grant of confirmation of executors and services in connection with the administration, ingathering, distribution and winding up of the estate of a deceased person by executors, but does not include anything which constitutes carrying on a regulated activity within the meaning of the Financial Services and Markets Act 2000;
provided inadequate professional services,
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in the case of a body which is recognised at the commencement of this section and in respect of which accounts have been prepared up to a date not more than 12 months before such commencement, its accounting reference date shall be that date;
in the case of a body which is recognised at the commencement of this section and in respect of which no such accounts have been prepared, its accounting reference date shall be 31 March or such other date as the Secretary of State may, by order, prescribe;
in the case of a body which is not recognised at the commencement of this section and in respect of which accounts have been prepared up to a date not more than 12 months before its recognition, its accounting reference date shall be that date; and
a body which is not recognised at the commencement of this section and in respect of which no accounts have been prepared up to a date not more than 12 months before such commencement, unless it determines that its accounting reference date shall be 31 March or such other date as the Secretary of State may, by order, prescribe, shall by notice given to the Lord Advocate specify its accounting reference date.
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in the case of a body which is recognised at the commencement of this section and in respect of which any accounts have been prepared for a period up to a date not more than 12 months before such commencement, the period beginning with that date;
in the case of a body which is recognised at such commencement and in respect of which no such accounts have been prepared, the period beginning with such commencement;
in the case of any other body, the period of more than 6 months, but not more than 18 months, beginning with the date from which its recognition takes effect and ending with its accounting reference date.
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Nothing in this Part of this Act, except section 1, shall affect—
The War Charities Act 1940 shall cease to have effect as regards Scotland; but nothing in this subsection shall affect any prosecution for an offence under that Act which has been instituted before the commencement of this section.
any educational endowment within the meaning of section 122(1) of the Education (Scotland) Act 1980; or
Any power in this Part of this Act of the Secretary of State to make regulations or orders shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
any body entered in the Scottish Charity Register.
The Council of the Law Society of Scotland have the function of regulating the provision of conveyancing and executry services under sections 17 to 23 of this Act.
the provision of conveyancing services by persons other than—
solicitors; and
persons mentioned in section 32(2) of the 1980 Act (unqualified persons who may draw and prepare documents relating to heritable estate and confirmations); and
the provision of executry services by persons other than—
solicitors;
persons referred to in paragraph (a)(ii) above; and
recognised financial institutions.
The Scottish Ministers may make grants to the Council towards expenses incurred, or to be incurred, by them in connection with the exercise of that function.
the initial establishment of the Board; and
the discharge by the Board of their functions.
Any grant made under subsection (2) above may be made subject to such terms and conditions (including conditions as to repayment) as the Scottish Ministers consider appropriate and they may vary such terms and conditions after the grant is made.
Part I of Schedule 1 to this Act (constitution, duties, powers and status of the Board) shall have effect in relation to the Board.
The Council shall establish and maintain a register of conveyancing practitioners, which shall be available for inspection by any person without charge.
Where, on an application made to them by a natural person in such form as they may determine, and on the provision of such information in connection with the application as they consider necessary, the Council are satisfied that the applicant— the Council shall grant the application and shall enter the applicant’s name in the register of conveyancing practitioners.
is a fit and proper person to provide conveyancing services as a conveyancing practitioner; and
complies with the requirements of rules made under subsection (11)(a) below and rules referred to in subsection (11B) below in so far as they relate to educational qualifications and practical training,
The register shall include an entry in respect of any person who was registered in the register of qualified conveyancers maintained by the Scottish Conveyancing and Executry Services Board immediately before the coming into force of this subsection.
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educational qualifications; and
practical training.
The entry in the register in respect of any such person who, immediately before the coming into force of this subsection, provided conveyancing services to the public for a fee, gain or reward shall be annotated to the effect that he is an independent conveyancing practitioner; but that annotation shall be removed if he ceases to provide such services for a fee, gain or reward.
Where the Council—
grant an application under subsection (2) above, they may attach such conditions as they may determine, and shall—
record any such conditions against the applicant’s name in the register; and
give the applicant written reasons for any decision to attach such conditions;
refuse such an application, they shall give the applicant written reasons for their decision.
Where the Council— the applicant may, within 21 days of the date on which the Council’s decision is intimated to him, apply to the Council to review their decision.
grant an application under subsection (2) above subject to conditions; or
refuse such an application,
The Council may charge such fee for registration under subsection (2) above as they may determine.
Where the Council have reviewed a decision mentioned in subsection (5) above the applicant may, within 21 days of the date on which the outcome of such review is intimated to him, apply to the Court of Session and the Court may make such order in the matter as it thinks fit.
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satisfies the Board that he has made adequate arrangements for the satisfaction of any successful claims against him arising out of such provision by him of such services; or
participates in the arrangements made by the Board for that purpose under subsection (13)(b) below,
Any person or body other than— who employs a conveyancing practitioner under a contract of employment for the purpose of providing conveyancing services for persons other than himself or, as the case may be, themselves, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
an independent conveyancing practitioner; or
a solicitor; or
an incorporated practice within the meaning of section 65 of the 1980 Act (interpretation); or
a multi-disciplinary practice within the meaning of that section,
Where a conveyancing practitioner applies to the Council to remove his name from the register the Council shall— grant the application and amend the register accordingly.
where, in the case of an independent conveyancing practitioner, they are satisfied that he has made adequate arrangements with respect to the business he then has in hand; and
in any other case, without further enquiry,
The Council shall send to the Keeper of the Registers of Scotland—
as soon as practicable after 1st April in each year, a list of all conveyancing practitioners; and
written notice of any subsequent change to the register of conveyancing practitioners.
The Council may make rules for regulating the conduct and practice of conveyancing practitioners, and such rules may, in particular, make provision with respect to—
educational qualifications and practical training (including continuing professional development);
the manner in which such practitioners conduct the provision of conveyancing services;
complaints against such practitioners; and
in the case of independent conveyancing practitioners— and, in respect of the matters referred to in paragraphs (a) to (c) above, different provision may be made for different cases or classes of case.
conflicts of interest;
the contractual obligations of such practitioners;
the holding of and accounting for clients' money;
the disclosure of and accounting for commission; and
professional indemnity insurance and other arrangements for meeting claims by clients,
the disclosure of and accounting for commissions.
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The Council shall, in relation to the provision of conveyancing services by independent conveyancing practitioners ...—
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make suitable arrangements (whether by means of insurance policies or otherwise) to secure that any successful claims made against such a practitioner in connection with the provision of conveyancing services are satisfied.
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the Director in accordance with section 40 of this Act; and
such other persons as he considers appropriate.
Rules made under subsection (11) above shall not have effect unless they have been approved by—
the Lord President of the Court of Session; and
subject to section 40 of this Act, the Scottish Ministers.
It shall be the duty of—
a conveyancing practitioner to comply with the requirements of any rules made under subsection (11) above, any rules and regulations referred to in subsection (11B) above and any direction of the Council under section 20(2)(a) or (b) of this Act; and
the Council to ensure such compliance.
Any— having effect immediately before the coming into force of this subsection shall have effect with respect to conveyancing practitioners and independent conveyancing practitioners respectively as if they were rules made under subsection (11) above which have been approved in accordance with subsection (11A) above; and the Council may amend or repeal any such rules or regulations.
rules as to the requirements to be satisfied by any person applying for registration as a qualified conveyancer; and
regulations as to the conduct and practice of independent qualified conveyancers,
Where, under or by virtue of any enactment— any reference in that or any other enactment or any subordinate instrument to such a warrant or application being signed by a solicitor or agent shall be construed as including a reference to the warrant or application being signed by a conveyancing practitioner, and any enactment or subordinate instrument making provision as to the form of such a warrant or application shall, with the necessary modifications, apply in relation to a conveyancing practitioner.
a warrant of registration is required for recording any deed in the General Register of Sasines; or
an application for registration is required for registering an interest in land in the Land Register of Scotland,
Failure by a practitioner to comply with any rule made under subsection (11) or any rule or regulation referred to in subsection (11B) may be treated as professional misconduct or unsatisfactory professional conduct.
A conveyancing practitioner who signs a warrant or application by virtue of subsection (17) above shall, in addition to any matters required to be specified after his signature by any enactment or subordinate instrument, specify the independent conveyancing practitioner, solicitor or incorporated practice by whom he is employed or, where he is himself an independent conveyancing practitioner, his designation as such.
Any person who— shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
wilfully and falsely—
pretends to be a conveyancing practitioner; or
takes or uses any name, title, addition or description implying that he is a conveyancing practitioner; or
being a conveyancing practitioner, provides conveyancing services at a time when his registration as such is suspended,
Any conveyancing practitioner not registered as an independent conveyancing practitioner ... who— shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
wilfully and falsely—
pretends to be an independent conveyancing practitioner; or
takes or uses any name, title, addition or description implying that he is an independent conveyancing practitioner; or
provides conveyancing services to the public for a fee, gain or reward,
Where an offence under subsection (19)(a) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of— he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
any director, secretary or other similar officer of the body corporate; or
any person who was purporting to act in any such capacity,
Where an offence under subsection (19)(a) above is committed by a partnership and is proved to have been committed with the consent or connivance of a partner, he (as well as the partnership) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Any independent conveyancing practitioner who provides conveyancing services upon the account of, or for the profit of, any person other than— knowing that person not to be a solicitor, incorporated practice , licensed provider ... or independent conveyancing practitioner, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
a solicitor;
an incorporated practice within the meaning of section 65 of the 1980 Act;
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a licensed legal services provider within the meaning of Part 2 of the Legal Services (Scotland) Act 2010;
another independent conveyancing practitioner,
Any rule imposed by any professional or other body which purports to prevent a solicitor or any person mentioned in section 32(2) of the 1980 Act (unqualified persons who may draw and prepare documents relating to heritable estate etc.) from— shall be of no effect.
acting as an employee of an independent conveyancing practitioner in connection with the provision of conveyancing services; or
acting on behalf of an independent conveyancing practitioner in connection with the provision of such services,
The Council shall establish and maintain a register of executry practitioners, which shall be available for inspection by any person without charge.
Where, on an application made to them by a natural person in such form as they may determine, the Council are satisfied that the applicant fulfils the conditions specified in subsection (3) below, the Council shall grant the application and shall enter the applicant’s name in the register of executry practitioners.
The register shall include an entry in respect of any person who was registered in the register of executry practitioners maintained by the Scottish Conveyancing and Executry Services Board immediately before the coming into force of this subsection.
The conditions referred to in subsection (2) above are that the applicant—
is a fit and proper person to provide executry services; and
complies with the requirements of rules made under subsection (10)(a) below and regulations referred to in subsection (10B) below in so far as such regulations relate to educational qualifications and practical training; ...
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The Council may require an applicant under subsection (2) above to provide such further information in connection with the application as they consider necessary.
The Council may charge such fee for registration under subsection (2) above as they may determine.
Where the Council—
grant an application under subsection (2) above, they may attach such conditions as they may determine, and shall
record any such conditions against the applicant’s name in the register; and
give the applicant written reasons for any decision to attach such conditions;
refuse such an application, they shall give the applicant written reasons for their decision.
Where the Council— the applicant may, within 21 days of the date on which the Council’s decision is intimated to him, apply to the Council to review their decision.
grant an application under subsection (2) above subject to conditions; or
refuse such an application,
Where the Council have reviewed a decision mentioned in subsection (6) above the applicant may, within 21 days of the date on which the outcome of such review is intimated to him, apply to the Court of Session and the Court may make such order in the matter as it thinks fit.
Where an executry practitioner applies to the Council to remove his name from the register the Council shall, if they are satisfied that the practitioner has made adequate arrangements with respect to the business he then has in hand, grant the application and amend the register accordingly.
The Council shall send to the Keeper of the Registers of Scotland and to each sheriff clerk—
as soon as practicable after 1st April in each year, a list of all executry practitioners; and
written notice of any subsequent change to the register of executry practitioners.
The Council may make rules for regulating the conduct and practice of executry practitioners, and such rules may, in particular, make provision with respect to—
educational qualifications and practical training (including continuing professional development);
the manner in which such practitioners conduct the provision of executry services;
complaints against such practitioners; and
in the case of such practitioners who provide executry services to the public for a fee, gain or reward— and, in respect of the matters referred to in paragraphs (a) to (c) above, different provision may be made for different cases or classes of case.
conflicts of interest;
the contractual obligations of such practitioners;
the holding of and accounting for clients' money;
the disclosure of and accounting for commission; and
professional indemnity insurance and other arrangements for meeting claims by clients,
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It shall be the duty of—
an executry practitioner to comply with the requirements of any rules made under subsection (10) above, any regulations referred to in subsection (10B) above and any direction of the Council under section 20(2)(a) or (b) of this Act; and
the Council to ensure such compliance.
Any person who— shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
wilfully and falsely—
pretends to be an executry practitioner; or
takes or uses any name, title, addition or description implying that he is an executry practitioner; or
being an executry practitioner, provides executry services at a time when his registration as such is suspended,
Rules made under subsection (10) above shall not have effect unless they have been approved by—
the Lord President of the Court of Session; and
subject to section 40 of this Act, the Scottish Ministers.
Where an offence under subsection (13) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of— he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
any director, secretary or other similar officer of the body corporate, or
any person who was purporting to act in any such capacity,
Any regulations as to the conduct and practice of executry practitioners having effect immediately before the coming into force of this subsection shall have effect as if they were rules made under subsection (10) above which have been approved in accordance with subsection (10A) above; and the Council may amend or repeal any such regulations.
Where an offence under subsection (13) above is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Failure by a practitioner to comply with any rule made under subsection (10) or any rule or regulation referred to in subsection (10B) may be treated as professional misconduct or unsatisfactory professional conduct.
Subject to subsection (13B) below, an executry practitioner who provides executry services to the public for a fee, gain or reward shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Subsection (13A) above shall not apply to an executry practitioner who, with the approval of the Scottish Conveyancing and Executry Services Board, provided executry services to the public for a fee, gain or reward at any time before the coming into force of that subsection.
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Subject to subsection (3) below, a recognised financial institution may provide executry services if it has notified the Board that—
it intends to do so;
it complies with such requirements as may be prescribed by regulations made by the Secretary of State with respect to the educational qualifications and practical training of those of its employees who are to be engaged in the provision of executry services; and
it is a member of, or otherwise subject to, a scheme which—
has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of executry services; and
complies with such requirements as may be prescribed by regulations made by the Secretary of State with respect to matters relating to such complaints.
In this section “recognised financial institution” means any institution which is—
an institution authorised by the Bank of England to operate a deposit-taking business under Part I of the Banking Act 1987;
a building society authorised to raise money from its members by the Building Societies Commission under section 9 of the Building Societies Act 1986;
a body authorised to carry on insurance business under section 3 or 4 of the Insurance Companies Act 1982; or
any subsidiary (as defined by section 736(1) of the Companies Act 1985) of a body falling within paragraph (a), (b) or (c) above whose business, or any part of whose business, consists of the provision of executry services.
Where— the recognised financial institution shall notify the Board of that fact and shall forthwith cease providing executry services.
a recognised financial institution ceases (for whatever reason) to comply with the requirements with respect to educational qualifications and practical training referred to in paragraph (b) of subsection (1) above;
a recognised financial institution ceases (for whatever reason) to be a member of, or otherwise subject to, a scheme referred to in a notice given by it under that subsection; or
such a scheme ceases to comply with the requirements mentioned in paragraph (c)(ii) of that subsection,
The Board shall maintain a list of recognised financial institutions which have given notice under subsection (1) above and shall make the list available to any person without charge.
The Board shall, as soon as practicable after 1st April in each year, send a copy of the list maintained under subsection (4) above to the Keeper of the Registers of Scotland and to each sheriff clerk.
This section, so far as it relates to a body or subsidiary mentioned in subsection (2)(c) or (d) above, is without prejudice to section 16 of the Insurance Companies Act 1982 (restriction of insurance companies to insurance business).
Regulations under subsection (1) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.
Where, after such inquiry as they consider appropriate into a conduct complaint remitted to them under section 6(2)(a) or 15(5)(a) of the 2007 Act suggesting professional misconduct by a practitioner or that the circumstances referred to in paragraph (a)(ii) of section 2(1) of the 2007 Act apply as respects a practitioner and after giving the practitioner concerned an opportunity to make representations, the Council are satisfied that a practitioner— they may take such of the steps set out in subsection (2) below as they think fit and shall, without prejudice to subsection (6) below, intimate their decision to the practitioner by notice in writing.
is guilty of professional misconduct;
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has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a conveyancing practitioner or, as the case may be, executry services as an executry practitioner,
The steps referred to in subsection (1) above are—
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nil; or
such amount as the Board may specify in the determination,
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to attach conditions (or, as the case may be, further conditions) to the registration of the practitioner or to vary any condition so attached;
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where the Council consider that the complainer has been directly affected by the professional misconduct or, as the case may be, the matter referred to in paragraph (d) of subsection (1), to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Council may specify to the complainer for loss, inconvenience or distress resulting from the misconduct or, as the case may be, the matter;
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subject to subsection (2ZA) below, to impose on the practitioner a fine not exceeding £2,000;
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to make a report of the Council's findings to any other person exercising functions with respect to—
the practitioner; or
any person employed by or acting on behalf of the practitioner in connection with the provision of the services.
The Tribunal shall not impose a fine under subsection (2B)(b) above where, in relation to the subject matter of the Tribunal's inquiry, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than two years.
The Council shall not impose a fine under subsection (2)(cb) above where, in relation to the subject matter of the complaint, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.
Any fine imposed under subsection (2B)(b) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.
Any fine imposed under subsection (2)(cb) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.
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to refund, whether in whole or to any specified extent, any amount already paid by or on behalf of the client in respect of the fees and outlays of the practitioner in connection with the services; and
to waive, whether wholly or to any specified extent, the right to recover those fees and outlays.
Where— the Tribunal may take such of the steps set out in subsection (2B) below as they think fit.
after holding an inquiry into a conduct complaint against a practitioner, the Tribunal are satisfied that—
he has been guilty of professional misconduct; or
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a practitioner has been convicted by any court of an act involving dishonesty or has been sentenced to a term of imprisonment of not less than 2 years,
Where the Council make a direction under ... subsection (2)(ca) or the Tribunal make a direction under subsection (2B)(aa), the Council or (as the case may be) the Tribunal shall, by notice in writing, require the practitioner to which the direction relates to give to the Council, within such period being not less than 21 days as the notice may specify, an explanation of the steps which he ... has taken to comply with the direction.
The steps referred to in subsection (2A) above are—
to suspend or revoke the registration of the practitioner;
where the practitioner has been guilty of professional misconduct, and where the Tribunal consider that the complainer has been directly affected by the misconduct, to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as the Tribunal may specify to the complainer for loss, inconvenience or distress resulting from the misconduct;
subject to subsection (3) below, to impose on the practitioner a fine not exceeding £10,000;
to censure the practitioner; and
a step which the Council may take in respect of a practitioner under subsection (2)(c) above.
Where a practitioner— the Council may apply to the court for an order requiring the practitioner to comply with the direction to which the notice relates within such time as the court may order.
fails to comply with a notice under subsection (6) above; or
complies with such a notice but the Council are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates,
Where the Council take a step set out in subsection (2)(c) above or the Tribunal, by virtue of subsection (2B)(d) above, take a similar step or the Tribunal take a step set out in subsection (2B)(a) above and— the Council shall amend the register of executry practitioners or, as the case may be, the register of conveyancing practitioners accordingly.
any period specified in this section for applying for review or for the making of an appeal in respect of the matter has expired without such a review having been applied for or such an appeal having been made;
where such an application or appeal is made, the matter is finally determined in favour of the Council's or, as the case may be, Tribunal's decision or the application or appeal is withdrawn,
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subject to subsection (10) below, publish every decision taken by them under subsection (1) above (including a decision that they are not satisfied as to the matters mentioned in subsection (1)(a) to (d)); and
make available a copy of every decision published under paragraph (a) above for inspection by any person without charge.
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the practitioner to whom the decision relates; or
where the practitioner is an individual, his partners; or
his or their families,
Where the Council take a step set out in subsection (2)(c) to (cb) above, the practitioner concerned may—
within 21 days of the date on which the Council's decision is intimated to ... him, apply to the Council to review their decision; and
within 21 days of the date on which the outcome of such review is intimated to him, appeal to the Tribunal against the decision made in any such review; and the Tribunal may quash, confirm or vary that decision
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Where the Council are satisfied that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner, the practitioner may—
before the expiry of the period of 21 days beginning with the day on which the finding by the Council to that effect is intimated to him, apply to the Council for a review by them of the finding;
before the expiry of the period of 21 days beginning with the day on which the outcome of the review is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash or confirm the decision.
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The Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection (2)(cb) or (2B)(b) above by substituting for the amount for the time being specified in that provision such other amount as appears to him to be justified by a change in the value of money.
In this section “executry practitioner” and “ conveyancing practitioner ” respectively include any executry practitioner or conveyancing practitioner whether or not ... he was registered as such at the time when the subject matter of the Council’s or, as the case may be, Tribunal's inquiry occurred and notwithstanding that subsequent to that time ... he has ceased to be so registered.
Where the Council find that a practitioner is guilty of professional misconduct or that the circumstances referred to in subsection (1)(d) apply as respects a practitioner but do not direct him under subsection (2)(ca) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Council's finding is intimated to him, apply to the Council for a review by them of their decision not to direct the practitioner under subsection (2)(ca) to pay compensation.
A complainer to whom the Council have directed a practitioner under subsection (2)(ca) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, apply to the Council for a review by them of the direction.
The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of the review under subsection (11ZA) or (11ZB) is intimated to him, appeal to the Tribunal against the decision of the Council in the review; and the Tribunal may quash, confirm or vary the decision.
Within 21 days of the date on which— is intimated to the practitioner concerned, he may appeal to thecourt against the decision made by the Tribunal in the appeal the finding referred to in paragraph (aa) or, as the case may be, the decision to take such a step; and the court may make such order in the matter as it thinks fit.
the outcome of any appeal under subsection (8A)(b) or (11)(b) above; or
a finding by the Tribunal that a practitioner is guilty of professional misconduct or that the circumstances mentioned in subsection (1)(d) apply as respects the practitioner; or
the taking of any step referred to in subsection (2B) above,
The complainer may, before the expiry of the period of 21 days beginning with the day on which the outcome of any appeal under subsection (11ZC) is intimated to him, appeal to the court against the Tribunal's decision in the appeal.
Where after holding an inquiry into a complaint against a practitioner, the Tribunal find that he has been guilty of professional misconduct or that the circumstances referred to in subsection (2A)(b) apply as respects him, but do not direct the practitioner under subsection (2B)(aa) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's finding is intimated to him, appeal to the court against the decision of the Tribunal not to make a direction under that subsection.
A complainer to whom the Tribunal have directed a practitioner under subsection (2B)(aa) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the court against the amount of the compensation directed to be paid.
In an appeal under subsection (11C) or (11D), the court may make such order in the matter as it thinks fit.
A direction of the Tribunal under this section 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.
The Scottish Ministers may by order made by statutory instrument, after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (2)(ca) or (2B)(aa) by substituting for the amount for the time being specified in that provision such other amount as they consider appropriate.
A statutory instrument containing an order under subsection (11G) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
The powers conferred on the Council by this section may be exercised if, after such inquiry (if any) as the Council consider appropriate, it appears to them to be desirable to do so for the purpose of protecting the interests of the clients, or prospective clients, of an independent conveyancing practitioner or an executry practitioner (each of whom is in this section referred to as a “relevant practitioner”).
The Council may, in particular, exercise any such power where it appears to them that a relevant practitioner—
is no longer a fit and proper person to provide conveyancing services or, as the case may be, executry services; or
has ceased, for whatever reason, to provide such services; ...
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The Council may direct the relevant practitioner not to dispose of, or otherwise deal with, except in accordance with the terms of the direction—
any assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent conveyancing practitioner or, as the case may be, an executry practitioner; or
any assets of the practitioner which are specified, or of a kind specified, in the direction.
The Council may direct the relevant practitioner to transfer to the Council, or to such persons (in this section referred to as “the trustees”) as may be specified in the direction—
all assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent conveyancing practitioner or, as the case may be, an executry practitioner; or
any assets of the practitioner which are specified, or of a kind specified, in the direction.
A relevant practitioner to whom a direction is given may, within 21 days of the date on which the direction is received by him, apply to the court, which may make such order in the matter as it thinks fit.
A relevant practitioner to whom a direction is given shall comply with it as soon as it takes effect (and whether or not he proposes to apply to the court under subsection (5) above).
If, on an application to the court by the Council, the court is satisfied— the court may make an order requiring the practitioner, and any other person whom the court considers it appropriate to subject to its order, to take such steps as the court may direct with a view to securing compliance with the direction.
that a relevant practitioner has failed, within a reasonable time, to comply with any direction given to him; or
that there is a reasonable likelihood that a relevant practitioner will so fail,
Any assets which have been transferred as a result of a direction given under subsection (4) above shall be held by the Council, or by the trustees, on trust for the client or, as the case may be, the practitioner concerned.
The trustees may deal with any assets which have been transferred to them only in accordance with directions given to them by the Council.
If the Council have reasonable cause to believe that a relevant practitioner or an employee of a relevant practitioner has been guilty of dishonesty resulting in pecuniary loss to a client of the relevant practitioner, they may apply to the court for an order that no payment be made by any bank, building society or other body named in the order out of any bank, building society or other account or any sum deposited in the name of the relevant practitioner without the leave of the court and the court may make such an order.
Any direction under this section—
shall be given in writing;
shall state the reason why it is being given;
shall take effect on such date as may be specified in the direction (which may be the date on which it is served on the relevant practitioner); and
may be varied or revoked by a further direction given by the Council.
In this section—
“assets” includes any sum of money (in whatever form and whether or not in any bank, building society or other account) and any book, account, deed or other document held by the relevant practitioner on his own behalf in connection with his business as a relevant practitioner or on behalf of the client concerned; and
“independent qualified conveyancer” and “executry practitioner” respectively include any independent qualified conveyancer or executry practitioner whether or not he was registered as such at the time when the matter in relation to which the Board exercise or propose to exercise their powers under this section arose and notwithstanding that subsequent to that time he has ceased to be so registered.
Where the Council make a direction under subsection (3) or (4) or apply to the court for an order under subsection (10), the Council shall notify the Commission to that effect and provide it with details of their findings in any inquiry held by virtue of subsection (1) as respects the practitioner concerned.
Where, after holding an inquiry under section 20(2A) into a complaint of professional misconduct against a practitioner, the Tribunal— they must remit the complaint to the Council.
are not satisfied that he has been guilty of professional misconduct;
consider that he may be guilty of unsatisfactory professional conduct,
Where the Tribunal remit a complaint to the Council under subsection (1), they may make available to the Council any of their findings in fact in their inquiry into the complaint under section 20(2A).
Any communication made to or by— shall in any action or proceedings in any court be protected from disclosure on the ground of confidentiality between client and professional legal adviser in like manner as if the practitioner had at all material times been a solicitor acting for the client.
an independent conveyancing practitioner or an executry practitioner in the course of his ... acting as such for a client; or
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Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to confidentiality between client and professional legal adviser could be maintained, shall, with any necessary modifications, have effect in relation to— as it has effect in relation to a solicitor.
an independent conveyancing practitioner; and
an executry practitioner; ...
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Where a conduct complaint suggesting unsatisfactory professional conduct by a practitioner is remitted to the Council under section 6(2)(a) or 15(5)(a) of the 2007 Act, the Council must having— determine the complaint.
investigated the complaint under section 47(1) of that Act and made a written report under section 47(2) of that Act;
given the practitioner an opportunity to make representations,
Where a complaint is remitted to the Council under section 20ZA, the Council—
must—
notify the practitioner specified in it and the complainer of that fact and that the Council are required to investigate the complaint as a complaint of unsatisfactory professional conduct;
so investigate the complaint;
having so investigated the complaint and given the practitioner an opportunity to make representations, determine the complaint;
may rely, in their investigation, on any findings in fact which the Tribunal make available to them under section 20ZA(2) as respects the complaint.
Where the Council make a determination under subsection (1) or (2) upholding the complaint, they—
shall censure the practitioner;
may take any of the steps mentioned in subsection (4) which they consider appropriate.
The steps are—
where the Council consider that the practitioner does not have sufficient competence in relation to any aspect of conveyancing law or legal practice or, as the case may be, executry law or legal practice, to direct him to undertake such education or training as regards the law or legal practice concerned as the Council consider appropriate in that respect;
subject to subsection (6) below, to direct the practitioner to pay a fine not exceeding £2,000;
where the Council consider that the complainer has been directly affected by the conduct, to direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct.
The Council may, in considering the complaint, take account of any previous determination by them, the Tribunal or the court upholding a complaint against the practitioner of unsatisfactory professional conduct or professional misconduct (but not a complaint in respect of which an appeal is pending or which has been quashed ultimately on appeal).
The Council shall not direct the practitioner to pay a fine under subsection (4)(b) above where, in relation to the subject matter of the complaint, he has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.
Any fine directed to be paid under subsection (4)(b) above shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.
The Council shall intimate— to the complainer and the practitioner by sending to each of them a copy of the determination, the censure or, as the case may be, the direction and by specifying the reasons for the determination.
a determination under subsection (1) or (2);
any censure under subsection (3)(a);
any direction under subsection (4),
A practitioner in respect of whom a determination upholding a conduct complaint has been made under subsection (1) or (2), or a direction has been made under subsection (4) may, before the expiry of the period of 21 days beginning with the day on which the determination or, as the case may be, the direction is intimated to him, appeal to the Tribunal against the—
determination;
direction (whether or not he is appealing against the determination).
A complainer may, before the expiry of the period of 21 days beginning with the day on which a determination under subsection (1) or (2) not upholding the conduct complaint is intimated to him, appeal to the Tribunal against the determination.
Where the Council have upheld the conduct complaint but have not directed the practitioner under subsection (4)(c) to pay compensation, the complainer may, before the expiry of the period of 21 days beginning with the day on which the determination upholding the complaint is intimated to him, appeal to the Tribunal against the Council's decision not to make a direction under that subsection.
A complainer to whom the Council have directed a practitioner under subsection (4)(c) to pay compensation may, before the expiry of the period of 21 days beginning with the day on which the direction under that subsection is intimated to him, appeal to the Tribunal against the amount of the compensation directed to be paid.
The Scottish Ministers may by order made by statutory instrument—
amend subsection (4)(b) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money;
after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (4)(c) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.
A statutory instrument containing an order under—
subsection (13)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament;
subsection (13)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
In sections 16 to 22 of this Act and this section, except where the context otherwise requires—
In section 25 (interpretation of Part II)—
... and
“practitioner” means an executry practitioner or a conveyancing practitioner;
relating to the arranging of a loan; or
falling within section 1(1)(a) of the Estate Agents Act 1979;
The Council shall, by notice in writing, require every practitioner who is specified in— to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction.
a direction made under section 20ZB(4); or
such a direction as confirmed or varied on appeal by—
the Tribunal; or
the court,
Where an appeal is made under section 20ZB(9) or (12) or 20D(1) or (2) against a direction made under section 20ZB(4), any notice under subsection (1) above relating to the direction shall cease to have effect pending the outcome of the appeal.
Where the Council receive a report from the Commission under section 10(2)(e) of the 2007 Act as respects a practitioner, they may direct him to undertake such education or training as regards conveyancing law or legal practice or, as the case may be, executry law or legal practice as they consider appropriate in the circumstances.
The Council shall by notice in writing—
intimate a direction under subsection (1) to the practitioner;
require the practitioner to give, before the expiry of such period being not less than 21 days as the notice specifies, an explanation of the steps which he has taken to comply with the direction.
Where an appeal is made under section 20ZE(1) or (3) against a direction under subsection (1), any notice under subsection (2)(b) relating to the direction shall cease to have effect pending the outcome of the appeal.
A practitioner in respect of whom a direction has been made under section 20ZD(1) may, before the expiry of the period of 21 days beginning with the day on which it is intimated to him, appeal to the Tribunal against the direction.
On an appeal to the Tribunal under subsection (1), the Tribunal may quash, confirm or vary the direction being appealed against.
The practitioner may, before the expiry of the period of 21 days beginning with the day on which the Tribunal's decision under subsection (2) is intimated to him, appeal to the court against the decision.
On an appeal to the court under subsection (3), the court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the court and as to any order by the Tribunal relating to expenses.
A decision of the court on an appeal under subsection (3) shall be final.
The Council shall establish a procedure under which they shall, on the application of any aggrieved person, review any relevant decision made by them.
In subsection (1) above—
“ relevant decision ” means–
a refusal to grant an application for registration as a practitioner;
a decision to grant an application for registration as a practitioner subject to conditions; or
a decision to take any step set out in subsection (2)(c) to (cb) of section 20 of this Act; and
“ aggrieved person ” means the applicant or, as the case may be, the practitioner concerned.
On an appeal to the Tribunal under section 20ZB(9) the Tribunal—
may quash or confirm the determination being appealed against;
if they quash the determination, shall quash the censure accompanying the determination;
may quash, confirm or vary the direction being appealed against;
may, where they consider that the practitioner does not have sufficient competence in relation to any aspect of conveyancing law or legal practice or, as the case may be, executry law or legal practice, direct him to undertake such education or training as regards the law or legal practice concerned as the Tribunal consider appropriate in that respect;
may, subject to subsection (5), fine the practitioner an amount not exceeding £2000;
may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct.
On an appeal to the Tribunal under section 20ZB(10) the Tribunal—
may quash the determination being appealed against and make a determination upholding the complaint;
if they do so, may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct;
may confirm the determination.
On an appeal to the Tribunal under section 20ZB(11) the Tribunal may, where they consider that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as they may specify to the complainer for loss, inconvenience or distress resulting from the conduct.
On an appeal under section 20ZB(12) the Tribunal may quash, confirm or vary the direction being appealed against.
The Tribunal shall not direct the practitioner to pay a fine under subsection (1)(e) where, in relation to the subject matter of the complaint, he has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than 2 years.
Any fine directed to be paid under subsection (1)(e) shall be treated for the purposes of section 211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.
A direction of the Tribunal under this section is enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
The Scottish Ministers may by order made by statutory instrument—
amend subsection (1)(e) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money;
after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(f) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.
A statutory instrument containing an order under—
subsection (8)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament;
subsection (8)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
Where a practitioner fails to comply with a direction given by the Council under section 20ZB(4) (including such a direction as confirmed or varied on appeal by the Tribunal or, as the case may be, the court) before the expiry of the period specified in the notice relating to that direction given to the practitioner under section 20ZC(1), or such longer period as the Council may allow, the direction shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
A practitioner in respect of whom a decision has been made by the Tribunal under section 20B(1), (2), (3) or (4) may, before the expiry of the period of 21 days beginning with the day on which the decision is intimated to him, appeal to the court against the decision.
A complainer may, before the expiry of the period of 21 days beginning with the day on which a decision by the Tribunal under section 20B to which this subsection applies is intimated to him, appeal to the court against the decision.
Subsection (2) applies to the following decisions of the Tribunal under section 20B—
a decision under subsection (1)(a) quashing the Council's determination upholding the complaint;
a decision under subsection (1)(c) quashing or varying a direction by the Council that the practitioner pay compensation;
a decision under subsection (1)(f) directing the practitioner to pay compensation;
a decision under subsection (2)(b) not to direct the practitioner to pay compensation;
a decision under subsection (2)(c) confirming the Council's decision not to uphold the complaint;
a decision under subsection (3) confirming the Council's decision not to direct the practitioner to pay compensation;
a decision under subsection (4) quashing the Council's direction that the practitioner pay compensation or varying the amount of compensation directed to be paid.
On an appeal under subsection (1) or (2), the court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the court and as to any order by the Tribunal relating to expenses.
A decision of the court under subsection (4) shall be final.
On an appeal under section 20D, the court may—
fine the practitioner an amount not exceeding £2000;
where it considers that the complainer has been directly affected by the conduct, direct the practitioner to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainer for loss, inconvenience or distress resulting from the conduct;
find the practitioner liable in any expenses which may be involved in the proceedings before it.
A decision of the court under subsection (1) shall be final.
The Scottish Ministers may by order made by statutory instrument—
amend subsection (1)(a) by substituting for the amount for the time being specified in that subsection such other amount as appears to them to be justified by a change in the value of money;
after consulting the Council and such groups of persons representing consumer interests as they consider appropriate, amend subsection (1)(b) by substituting for the amount for the time being specified in that subsection such other amount as they consider appropriate.
A statutory instrument containing an order under—
subsection (3)(a) is subject to annulment in pursuance of a resolution of the Scottish Parliament;
subsection (3)(b) is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
The Council may exercise the power conferred by subsection (3) below for the purpose of
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consideration by the Council whether to exercise the powers conferred on them by section 21 of this Act.
The Tribunal may exercise the power conferred by subsection (3) below for any of the following purposes—
an inquiry under subsection (2A) of section 20 of this Act; and
an appeal under subsection (8A)(b), (11)(b) or (11ZC) of that section.
The Council or, as the case may be, the Tribunal may give notice in writing to a practitioner specifying the subject matter of their investigation and requiring either or both of the following—
the production or delivery to any person appointed by the Council or, as the case may be, the Tribunal, at a time and place specified in the notice, of such documents so specified as are in the possession or control of the practitioner and relate to the subject matter of the investigation;
an explanation, within such period being not less than 21 days as the notice may specify, from the practitioner regarding the subject matter of the investigation.
If a practitioner fails to comply with a notice under subsection (3)(a) above, the Council or, as the case may be, the Tribunal may apply to the Court of Session for an order requiring him to produce or deliver the documents to the person appointed at the place specified in the notice within such time as the court may order.
Paragraphs 7 to 9, 11, 13 to 15 and 18A to 22 of Schedule 4 to the Solicitors (Scotland) Act 1980 (c. 46) (which make provision as to certain powers and procedures of the Tribunal) apply in relation to complaints made against conveyancing and executry practitioners as they apply in relation to complaints against solicitors, but as if—
in paragraph 9(a)(i) and (b), the words “or, as the case may be, of provision of inadequate professional services” were omitted;
in paragraphs 9 and 19, the references to Part IV of that Act were references to sections 20 and 21A of this Act.
Paragraphs 7, 8, 11, 13 to 15 and 18A to 22 of that Schedule to that Act apply in relation to any appeal under subsection (8A)(b), (11)(b) or (11ZC) of section 20, 20ZB(9), (10), (11) or (12) or 20ZE(1) of this Act as they apply, by virtue of subsection (1) above, in relation to any complaint against conveyancing and executry practitioners, and—
the modifications made to those paragraphs by paragraph 23(a), (ca), (cc), (cd) and (d) of that Schedule apply for the purposes of that application of those paragraphs; and
paragraphs 24 and 25 of that Schedule apply in relation to any such appeal as they apply in relation to an appeal to which those paragraphs apply, but as if the reference in paragraph 24 to Part IV of that Act were a reference to sections 20 and 21A of this Act and as regards paragraph 25 also as if for the words “ the solicitor, the firm of solicitors or, as the case may be, the incorporated practice ” there were substituted “ the practitioner ”.
In the case of a decision by the Tribunal— subsection (4) below applies.
to take any of the steps set out in subsection (2B) of section 20 of this Act; or
in an appeal under subsection (8A)(b), (11)(b) or (11ZC) of that section,
Where this subsection applies and—
no appeal has been made to the court under subsection (11A) (11B), (11C) or (11D) of section 20 of this Act against the decision; or
such an appeal has been made but has— the clerk of the Tribunal shall send to the Council a copy of the decision of the Tribunal certified by him and the decision of the court in any such appeal.
been withdrawn; or
resulted in the Tribunal’s decision being upheld,
If the decision of the Tribunal so certified is to suspend or revoke the registration of the practitioner under paragraph (a) of subsection (2B) of section 20 of this Act, the Council shall—
give effect to the decision; and
cause a note of the effect of the decision to be entered against the name of the practitioner in the register of conveyancing practitioners or, as the case may be, of executry practitioners.
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After section 25 of the 1980 Act there shall be inserted the following section—.
Any professional or other body may, for the purpose of enabling any of their members who is a natural person to acquire— make an application in that regard to the Lord President and the Secretary of State.
rights to conduct litigation on behalf of members of the public; and
rights of audience,
An application under subsection (1) above shall include a draft scheme— and shall state that the body have complied with the provisions of Schedule 2 to this Act.
specifying— in relation to which the application is made;
the courts;
the categories of proceedings;
the nature of the business; and
the rights to conduct litigation and the rights of audience,
describing— in the event of the application being granted; and
the training requirements which the body would impose upon any of their members who sought to acquire any right such as is mentioned in subsection (1) above; and
the code of practice which they would impose upon their members in relation to the exercise by those members of any rights acquired by them by virtue of section 27 of this Act,
proposing arrangements for—
the indemnification of members of the public against loss suffered by them through the actings of the body’s members in the exercise by those members of any rights acquired by them by virtue of section 27 of this Act in the event of the application being granted; and
the treatment by the body of complaints remitted to the body under section 6(2)(a) or 15(5)(a) of the 2007 Act in relation to ... members of the body exercising rights acquired by virtue of section 27 of this Act in the event of the application being granted,
A code of practice such as is mentioned in subsection (2)(b)(ii) above shall include provision with regard to revoking, suspending or attaching conditions to the exercise of any right acquired by a member of the body by virtue of section 27 of this Act in consequence of a breach by that member of that code of practice; and shall in particular include provision enabling the body to comply with the provisions of section 27(4) of this Act.
A draft scheme submitted under this section shall also include the proposals of the body in relation to such other matters as may be prescribed by the Secretary of State in regulations made under this section.
Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Schedule 2 shall have effect in relation to the publication of applications made under subsection (1) above.
The Lord President shall consider the provision made in any draft scheme submitted to him under section 25(1) of this Act in relation to the matters mentioned in section 25(2); and the Secretary of State shall, subject to subsection (5) below and to section 40 of this Act, consider the provision so made in section 25(2)(b) and (c).
In considering the code of practice included in the draft scheme by virtue of section 25(2)(b)(ii), the Lord President shall have regard to the desirability of there being common principles applying in relation to the exercising of rights to conduct litigation and rights of audience by all practitioners in relation to the court or, as the case may be, the courts, mentioned in the application.
The Lord President and the Secretary of State shall— and may, either jointly or severally, make preliminary observations to the body concerned in relation to that draft; and the body may make such adjustments to the draft as appear to them to be appropriate, and the Lord President and the Secretary of State (who shall, in accordance with section 40, consult the CMA in respect of any adjustments made in relation to the matters mentioned in section 25(2)(b) or (c)) shall thereafter consider the draft scheme as so adjusted.
consult each other in considering a draft scheme submitted to them under section 25(1); and
consider any written representations timeously made to them under Schedule 2 to this Act,
In considering a draft scheme under subsection (1) or (3) above, the Lord President and the Secretary of State shall have regard to whether the provisions of the draft scheme are such as— appropriate standards of conduct and practice by persons who may acquire rights to conduct litigation or rights of audience in the event of the draft scheme being approved.
to achieve; and
to ensure the maintenance of,
In relation to any code of practice such as is mentioned in section 25(2)(b)(ii), the duty of the Secretary of State under subsection (1) above is limited to a consideration of any provision of such a code as would, in his view, directly or indirectly inhibit the freedom of a member of the body concerned to undertake all the work necessary for the preparation of a case or for the presentation of a case before the court, other than such a provision which has that effect only by reason of the provision made in the draft scheme with respect to the matters mentioned in section 25(2)(a).
After they have considered a draft scheme under subsections (1) and (3) above, if the Lord President and the Secretary of State— and the Lord President shall send a copy of the letter granting or refusing the application to any person who has made representations in relation to the draft scheme under Schedule 2 to this Act.
are satisfied with the draft scheme, the Lord President shall grant the application, and shall so inform the body;
are not satisfied with the scheme, the Lord President shall refuse the application, and shall so inform the body, giving written reasons for the refusal,
Where the Lord President has granted an application under subsection (6)(a) above, in relation to— make such provision for giving effect to the scheme as appears to it to be appropriate.
civil proceedings, the Court of Session may by act of sederunt; and
criminal proceedings, the High Court of Justiciary may by act of adjournal,
Where an application made under section 25 of this Act has been granted under section 26 of this Act, any member of the body concerned who has complied with the terms of the scheme in relation to the matters mentioned in section 25(2)(b)(i), and who appears to the body to be a fit and proper person, shall have the right to conduct litigation or rights of audience to which that compliance entitles him.
Where a function is, whether expressly or by implication, conferred on any person or body by section 26 or this section he or, as the case may be, they shall exercise that function as soon as is reasonably practicable.
Nothing in subsection (1) above affects the power of any court in relation to any proceedings—
to hear a person who would not otherwise have a right of audience before that court in relation to those proceedings; or
to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before that court in relation to those proceedings, and where a court so refuses it shall give its reasons for that decision.
Where a complaint has been made that a person has been guilty of professional misconduct in the exercise of any right to conduct litigation or right of audience held by him by virtue of this section, the body of which he is a member may, or if so requested by the Lord President shall, suspend that person from exercising that right pending determination of that complaint by the body.
Where a person holding a right of audience in any court by virtue of this section is instructed to appear in that court, those instructions shall take precedence before any of his other professional or business obligations, and the code of practice mentioned in section 25(2)(b)(ii) shall include rules— and, for the purposes of such rules, 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.
stating the order of precedence of courts for the purposes of this subsection;
stating general criteria to which members of the body should have regard in determining whether to accept instructions in particular circumstances; and
securing, through such of their officers as they think appropriate, that, where reasonably practicable, any person wishing to be represented before any court by one of their members holding an appropriate right of audience is so represented,
A person exercising any right of audience held by virtue of this section shall have the same immunity from liability for negligence in respect of his acts or omissions as if he were an advocate, and no act or omission on the part of any such person shall give rise to an action for breach of contract in relation to the exercise by him of such a right of audience.
Any person who wilfully and falsely— shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
pretends to have any right to conduct litigation or right of audience by virtue of this section; or
where he has any such right, pretends to have any further such right which he does not have; or
takes or uses any name, title, addition or description implying that he has any such right or, as the case may be, any further such right,
For the purposes of section 25, section 26 and this section—
“trial” means a trial under solemn or under summary procedure.
the facts of the matter as found by the organisation; and
what action the organisation propose to take, or have taken, in the matter.
the Scottish Conveyancing and Executry Services Board established under section 16 of this Act; and
“ relevant notarial services ” means the functions exercisable by independent conveyancing practitioners by virtue of section 14(1) and (2) of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4).
“ complainer ” means the person who made the complaint and, where the complaint was made by the person on behalf of another person, includes that other person;
Subject to the provisions of this section, where an application made under section 25 of this Act has been granted under section 26(6) of this Act, the body concerned may apply to the Lord President and the Secretary of State for permission to surrender any entitlement of their members to acquire rights to conduct litigation or rights of audience.
The Lord President and the Secretary of State shall jointly issue directions as to the requirements with which any body wishing to surrender their members’ entitlement will have to comply, and, without prejudice to the generality of the foregoing, any such directions may include provision—
where members of a body have acquired rights to conduct litigation or rights of audience, as to the arrangements to be made for the completion of any work outstanding at the time the application is made; and
relating to the particular circumstances of a particular body.
An application under subsection (1) above shall describe the manner in which the body have complied, or will comply, with the directions issued under subsection (2) above.
Where the Lord President and the Secretary of State are satisfied that the body concerned have complied, or will comply, with the directions issued under subsection (2) above, the Lord President shall grant the application, and shall so inform the body.
With effect from the date on which an application under subsection (1) above is granted, any member of the body concerned who has acquired rights to conduct litigation or rights of audience by virtue of the scheme shall cease to hold those rights.
Where it appears to the Secretary of State that a body has failed to comply with a direction under section 42(6) of this Act, he may by order made by statutory instrument revoke the grant of the application made by that body under section 25 of this Act.
No instrument shall be made under subsection (1) above unless a draft of the instrument has been laid before and approved by each House of Parliament.
With effect from the date on which an order under subsection (1) above takes effect, any member of the body concerned who has acquired rights to conduct litigation or rights of audience by virtue of the scheme shall cease to hold those rights.
The Secretary of State, after consulting the Lord President, may by regulations prescribe circumstances in which, and conditions subject to which, practitioners who are qualified to practise in England and Wales or Northern Ireland may, in such capacity as may be prescribed, exercise in Scotland— without being entitled to do so apart from the regulations.
prescribed rights of audience; or
prescribed rights to conduct litigation,
The Secretary of State, after consulting the Lord President, may by regulations make provision for the purpose of enabling practitioners who are entitled to practise in England and Wales or Northern Ireland to become qualified to practise in Scotland on terms, and subject to conditions, corresponding or similar to those on which practitioners who are entitled to practise in member States may become qualified to practise in Scotland.
Regulations made under subsection (1) above may, in particular—
prescribe any right of audience which may not be exercised by a person in Scotland unless he is instructed to act together with a person who has that right of audience there;
prescribe legal services which may not be provided by any person practising by virtue of the regulations;
prescribe the title or description which must be used by any person practising by virtue of the regulations;
provide for the body by whom and the means by which the qualification of any person claiming to be entitled to practise by virtue of the regulations is to be verified; and
provide for such professional or other body as may be prescribed to have power to investigate and deal with any complaint made against a person practising by virtue of the regulations.
Regulations made under subsection (1) or (2) above may modify any rule of law or practice which the Secretary of State considers should be modified in order to give effect to the regulations.
Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
In this section “practitioner” means, in relation to England and Wales and Northern Ireland—
a barrister or solicitor; and
any person falling within such category as may be prescribed in regulations made by the Secretary of State after consultation with the Lord President.
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Where it appears to the Faculty of Advocates that any rule of conduct in relation to the exercise of an advocate’s right of audience in the Court of Session is more restrictive than the equivalent rule in relation to the exercise of the equivalent right in the sheriff court, they may submit that rule to the Secretary of State for his approval, and the Secretary of State shall consult the CMA in accordance with section 40 of this Act, and thereafter, having— he may approve or refuse to approve the rule.
considered any advice tendered to him by the CMA;
compared the rule applicable in the Court of Session with the equivalent rule applicable in the sheriff court; and
considered whether the interests of justice require that there should be such a rule in the Court of Session,
In section 34 of the 1980 Act (rules as to professional practice, conduct and discipline)—
at the end of subsection (1A) there shall be inserted—and ; and
after subsection (3) there shall be inserted—.
Before section 61 of the 1980 Act there shall be inserted the following section—
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The organisation shall ensure that the procedures adopted by them for the purpose of dealing with any conduct complaint are not such as to inhibit them from taking further action in the matter following consideration by them of such a report as is mentioned in subsection (4) below.
The organisation shall comply with any request made to them by the Scottish legal services ombudsman under section 34 of this Act for information or, as the case may be, a report as soon as is reasonably practicable.
On receipt of any report made to them by the ombudsman under section 34(4) of this Act in relation to a handling complaint the organisation shall—
consider whether any further action requires to be taken in relation to the conduct complaint the treatment of which formed the subject-matter of the ombudsman’s investigation; and
report the results of the consideration mentioned in paragraph (a) above to the person who made the handling complaint and the ombudsman; and, without prejudice to the foregoing, any such report shall include an account of what further action they have taken, or propose to take, in the matter.
For the purposes of this section—
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The Secretary of State may, after consultation with the Lord President, and subject to subsection (9) below, appoint a person, to be known as the Scottish legal services ombudsman, to examine any written complaint (a “handling complaint”) made by or on behalf of a member of the public concerning the treatment by a professional organisation within the meaning of section 33 of this Act of a conduct complaint such as is mentioned in that section made by that member of the public or on his behalf.
The ombudsman shall make such investigation of any handling complaint as seems to him to be appropriate; and for that purpose he may request the organisation concerned to provide him with such information as he may reasonably require.
Where the organisation concerned have not completed an investigation under section 33(1) of this Act within such period as the Secretary of State may from time to time determine, the ombudsman may request a report from them on the progress of the investigation.
The ombudsman— to the complainer and to the organisation concerned.
may, at any stage in the investigation of a handling complaint, make an interim report in relation to that investigation; and
shall, at the conclusion of such an investigation, report the result of that investigation,
The ombudsman may—
if so requested by any person appointed to carry out equivalent functions in relation to the provision of legal services in England and Wales, investigate a complaint against a professional body in England and Wales on that person’s behalf; and
request any person appointed as mentioned in paragraph (a) above to investigate a complaint against an organisation in Scotland on his behalf.
The Secretary of State may by regulations extend the jurisdiction of the ombudsman by providing for this section to apply, with such modifications (if any) as he thinks fit, in relation to the investigation by the ombudsman of such categories of handling complaints as may be specified in the regulations with respect to the provision of executry services by persons other than executry practitioners within the meaning of section 23 of this Act.
Without prejudice to the generality of subsection (6) above, regulations under that subsection may make provision for the investigation of handling complaints with respect to particular persons or categories of person.
Regulations under subsection (6) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
The following shall not be eligible to be appointed as the ombudsman—
advocates;
solicitors;
members and officers of the Scottish Conveyancing and Executry Services Board established by section 16 of this Act;
subject to paragraph (e) below, executry practitioners within the meaning of section 23 of this Act;
where any such executry practitioner is a partnership or a body corporate, the partners or, as the case may be, the directors, secretary or other similar officers;
the directors, secretary or other similar officers of any recognised financial institution within the meaning of section 19(2) of this Act;
qualified conveyancers within the meaning of section 23 of this Act; or
any member or employee of a professional or other body any of whose members has acquired any right to conduct litigation or right of audience by virtue of section 27 of this Act.
Schedule 3 to this Act shall have effect in relation to the ombudsman.
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Paragraph 4 of Schedule 4 shall have effect in relation to the appointment of—
members of the Inner House of the Court of Session; and
a Lord Ordinary of that Court to be the Lord Ordinary in exchequer causes.
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An advocate and the person instructing him may agree, in relation to a litigation undertaken on a speculative basis, that, in the event of the litigation being successful, the advocate’s fee shall be increased by such percentage as may, subject to subsection (2) below, be agreed.
The percentage increase which may be agreed under subsection (1) above shall not exceed such limit as the court may, after consultation with the Dean of the Faculty of Advocates, prescribe by act of sederunt.
After section 61 of the 1980 Act there shall be inserted the following section—.
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For subsection (2) of section 6 of the 1980 Act (admission of persons as solicitors) there shall be substituted the following subsection—.
Section 57 of that Act (admission of notaries public) shall be amended as follows—
for subsection (1) there shall be substituted—;
in subsection (2), for the words from “grant” to the end there shall be substituted “ direct the Council to register him in the register of notaries public.” ”;
after subsection (2) there shall be inserted the following subsections—;
in subsection (4) for the word “solicitor” there shall be substituted “ person” ”; and
for subsection (5) there shall be substituted—.
In section 58 of that Act (removal from and restoration to the register of names of notaries public)—
in subsection (1), for the words from “give” to the end there shall be substituted “ strike off or, as the case may be, remove his name from the register of notaries public” ”;
in subsection (2), for the words from “it” to “thereupon” there shall be substituted “ the Council shall forthwith” ”;
at the end of that section there shall be added the following subsections—.
After section 43 of the Legal Aid (Scotland) Act 1986 there shall be inserted the following section—.
Section 29 of the 1980 Act (which restricts the borrowing of the process relating to any court proceedings to solicitors having a place of business, in relation to the Court of Session, in Edinburgh, and, in relation to the inferior courts, within the jurisdiction of the court concerned) shall cease to have effect.
Before— the Secretary of State shall first send a copy of the proposed regulations, rules or provisions to the CMA
approving any rules made under section 17(11) or 18(10) of this Act; or
approving any rules— of this Act; or
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such as are mentioned in section 31(1) or (2),
considering any provisions of a draft scheme under section 26(1) or (3) of this Act,
considering—
any provisions of a draft regulatory scheme under section 27 of the Regulation of Legal Services (Scotland) Act 2025, or
any provision which is proposed as a revision to a regulatory scheme under section 33 of that Act,
The CMA shall consider whether any such ... rules or provisions as are mentioned in subsection (1) above would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.
When the CMA has completed its consideration it shall give such advice to the Secretary of State as it thinks fit.
The CMA may publish any advice given under subsection (3) above.
The CMA shall, so far as practicable, exclude from anything published under subsection (4) above any matter—
which relates to the affairs of a particular person; and
the publication of which would, or might in the CMA's opinion, seriously and prejudicially affect the interests of that person.
For the purposes of the law of defamation, the publication of any advice by the Director under this section shall be absolutely privileged.
For the purpose of investigating any matter under section 40 of this Act, the CMA may by notice in writing—
require any person to produce to the CMA or to any person appointed by the CMA for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—
are in that person’s custody or under that person’s control; and
relate to any matter relevant to the investigation; or
require any person carrying on any business to furnish to the CMA (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.
A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.
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Where the Secretary of State has approved— he may and, where the Lord President, in the case of a draft scheme such as is mentioned in paragraph (b), so requests shall, require the body which made the rule or, as the case may be, the scheme to review its terms.
a rule under section ... 31(2) of this Act; or
a draft scheme under section 26(6) of this Act,
When they have reviewed a rule or, as the case may be, a scheme, following a requirement made under subsection (1) above, the body concerned may revise the rule or scheme in the light of that review, and shall then submit the rule or scheme as revised or, if they have not revised it, as previously approved—
in the case of a rule such as is mentioned in subsection (1)(a) above, to the Secretary of State; or
in the case of a draft scheme such as is mentioned in subsection (1)(b) above, to the Secretary of State and the Lord President.
Where a rule, whether revised or as previously approved, is submitted to the Secretary of State under subsection (2)(a) above, he may— and (except where the rule remains in the form previously approved) he may direct the body concerned to bring it into operation as soon as is practicable.
approve the rule as submitted to him; or
amend the rule in such manner as he considers appropriate,
Where the Lord President and the Secretary of State are agreed that the terms of a draft scheme submitted to them under subsection (2)(b) above are satisfactory, the Secretary of State may—
approve the scheme; and
(except where the scheme remains in the form previously approved) direct the body concerned to bring the scheme, as so amended, into force as soon as is practicable.
Where either the Secretary of State or the Lord President is of the view that the terms of any such scheme so submitted to them are not satisfactory, but they do not agree as to what the terms of the scheme should be, the scheme shall continue to have effect as previously approved.
Where the Secretary of State and the Lord President agree both that the terms of a scheme so submitted to them are not satisfactory, and as to what the terms of the scheme should be, the Secretary of State may amend the scheme in such manner as he and the Lord President consider appropriate; and may direct the body concerned to bring the scheme, as so amended, into force as soon as is practicable.
The provisions of section 40(1)(b) and (c) of this Act shall apply to rules and schemes submitted under subsection (2) of this section as they apply to rules submitted under sections 17(15) and 31(2) and schemes submitted under section 25(1) of this Act.
The court may, on an application by the CMA , enquire into whether any person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 41(1).
An application under subsection (1) shall include details of the possible failure which the CMA considers has occurred.
In enquiring into a case under subsection (1), the court shall hear any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence.
Subsections (5) and (6) apply where the court is satisfied, after hearing any witnesses and statements as mentioned in subsection (3), that the defaulter has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 41(1).
The court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.
Where the defaulter is a body corporate or is a partnership constituted under the law of Scotland, the court may punish any director, officer or (as the case may be) partner of the defaulter as it would have been able to punish that director, officer or partner had he been guilty of contempt of court.
In this section “the court” means the Court of Session.
After section 64 of the 1980 Act there shall be inserted the following sections—.
A person commits an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under section 41(1).
A person who commits an offence under subsection (1) shall be liable—
on summary conviction, to a fine not exceeding the statutory maximum;
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
In this Part of this Act, unless the context otherwise requires—
“Lord President” means the Lord President of the Court of Session;
“the CMA” means the Competition and Markets Authority;
“right to conduct litigation” means the right to exercise on behalf of a client all or any of the functions, other than any right of audience, which may be exercised by a solicitor in relation to litigation.
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For section 53 of the Licensing (Scotland) Act 1976 (in this Part of this Act referred to as “the principal Act”) there shall be substituted the following section—
In section 56 of that Act (permitted hours in certain clubs)—
for subsection (1) there shall be substituted the following subsection—; and
in subsection (2)(d), for the words “section 53(3)” there shall be substituted the words “section 53”.
In subsection (2) of section 57 of that Act (extension of permitted hours in the afternoon in certain premises), after “afternoon” there shall be inserted the words “on Sundays”.
The amendment by section 45 of this Act of section 53 of the principal Act shall not permit the opening for the sale or supply of alcoholic liquor during the permitted hours on a Sunday of premises for which there is in force a public house licence or a refreshment licence unless— and, subject to subsection (8) below, the said Schedule 4 shall continue to have effect until all such licences in force at the commencement of this Act have been renewed or have ceased to have effect.
the grant, provisional grant or renewal of such licence was in response to an application which stated that it was the intention of the applicant that the premises should be open for the sale or supply of alcoholic liquor during the permitted hours on a Sunday; or
before such a licence has been renewed, the licensing board has granted an application for Sunday opening in respect of the premises in accordance with the provisions of Schedule 4 to the principal Act,
In section 10 of the principal Act (applications for licences)—
after subsection (3) there shall be added the following subsection—; and
after subsection (7) there shall be added the following subsection—.
In section 12 of that Act (publication of list of applications), at the end of subsection (2), there shall be added the following paragraph—.
In section 17 of that Act (grounds for refusal of application)—
after subsection (2) there shall be inserted the following subsection—.
in subsection (4), after the words “transfer the licence” there shall be inserted the words “or to grant the licence in respect of the permitted hours on a Sunday”.
In section 59 (restaurants in public houses to have permitted hours on Sundays), for the words “an application for Sunday opening has not been granted under Schedule 4 to this Act” there shall be substituted the words “there are no permitted hours on a Sunday”.
In section 60 (other extensions of permitted hours on Sundays), for the words “an application for Sunday opening has been granted under Schedule 4 to this Act” there shall be substituted the words “there are permitted hours on Sundays in accordance with section 53 of this Act”.
In section 64 (extensions to permitted hours), for subsection (4) there shall be substituted the following subsections—
In Schedule 4 to the principal Act (provision for Sunday opening of premises with a public house or refreshment licence)—
in paragraph 1, the words “as mentioned in section 53(2) of this Act” shall cease to have effect;
in paragraph 15, the words “or 12 above” shall cease to have effect;
after paragraph 15 there shall be inserted the following paragraph—; and
paragraphs 12 to 14, 16 and 17 shall cease to have effect.
Expressions used in this section and in the principal Act shall have the same meaning as in that Act.
A licensing board shall not grant an application under section 64 of the principal Act for an extension of permitted hours unless it is satisfied by the applicant, taking account of the factors mentioned in subsection (3) of that section—
that there is a need in the locality in which the premises in respect of which the application is made are situated for a regular extension of the permitted hours; and
that such an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality.
In determining whether to grant an application for a regular extension to permitted hours in respect of any premises it shall not be a relevant consideration for the licensing board to have regard to whether any application relating to any other premises in its area has, at any time, been granted or refused or the grounds on which any such application has been granted or refused.
Expressions used in this section and in the principal Act shall have the same meaning as in that Act.
Section 65 of the principal Act (restriction on the permitted hours) shall be amended in accordance with the following provisions of this section.
For subsection (1) there shall be substituted the following subsections—
At the end of subsection (3) there shall be inserted the words “provided that no restriction order shall be made in respect of premises in respect of which no complaint has been made”.
The holder of a public house licence or an hotel licence in respect of any premises or an applicant for the grant, provisional grant or renewal of such a licence may apply to the licensing board, in accordance with this section, for the grant of a children’s certificate in respect of the premises or any part or parts of the premises specified in the application for the certificate.
A licensing board may grant a certificate (in this section and section 50 of this Act referred to as a “children’s certificate”) in respect of any premises or, as the case may be, part or parts of any premises if it is satisfied—
that the premises or, as the case may be, the part or parts of the premises constitute an environment in which it is suitable for children to be present; and
that there will be available for sale or supply for consumption in the part of the premises in respect of which the certificate is to apply meals and beverages other than alcoholic liquor within the meaning of the principal Act.
Where a children’s certificate is in force in respect of any part of any premises, notwithstanding section 69 of the principal Act, and, subject to the provisions of this section, it shall be lawful for a person under 14 years of age accompanied by a person of not less than 18 years of age to be present in such part at any time when the premises are open to the public between eleven in the morning and eight in the evening for the purpose of the consumption of a meal sold or supplied on the premises.
When granting a children’s certificate, the licensing board may attach such conditions to the grant of the certificate, including conditions restricting the hours during which and days on which children may be present in any premises or part of premises to which the certificate relates, as appear to the board to be appropriate.
There shall be displayed at all times in any premises or part of such premises to which a children’s certificate applies a notice of the fact that a children’s certificate has been granted in respect of such premises or part.
Any person who is the holder of a licence in respect of any premises to which or part of which a children’s certificate applies or any employee or agent of such a person who contravenes this section or any condition attached to a children’s certificate shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
The following provisions of the principal Act shall apply as regards an offence under subsection (6) above—
subsections (2) and (3) of section 67, as if an entry relating to that offence appeared respectively in columns 3 and 4 of Schedule 5 to that Act; and
section 71.
Schedule 5 to this Act shall have effect as regards the procedure to be followed for the purposes of an application for a children’s certificate.
A children’s certificate shall be valid—
where it is granted at the same time as the grant, provisional grant or renewal of a licence, for the period of the licence;
where it is granted at any other time, until the end of the period for which the licence to which it relates has effect in pursuance of section 30 of the principal Act.
Where a licence is transferred in pursuance of section 25 of the principal Act, any children’s certificate in respect of the premises or any part of the premises to which the licence relates shall be transferred to the new licence holder subject to the same conditions as were applied to the original grant of the certificate.
Expressions used in this section and section 50 of this Act and in the principal Act shall have the same meaning as in the principal Act.
Where a licensing board considers that the premises or part of the premises to which a children’s certificate relates no longer constitute an environment in which it is suitable for children to be present they shall decide whether or not to hold a hearing for the purpose of determining whether to suspend the certificate.
Where the licensing board decides to hold a hearing as mentioned in subsection (1) above—
the clerk of the board shall serve on the holder of the children’s certificate, not less than 21 days before the hearing, a notice that the board proposes to hold a hearing, specifying the grounds upon which suspension of the certificate may be made;
the clerk of the board shall give notice of the hearing to the chief constable;
the chief constable may, not less than 7 days before the hearing, lodge notice with the clerk of the board that he wishes to be heard in support of suspension of the children’s certificate specifying the grounds on which he seeks such suspension, and any such notice shall be intimated by the chief constable to the holder of the licence;
the board shall not order suspension of a children’s certificate without hearing the holder thereof unless, after receiving due notice of the hearing, the holder fails to appear.
The period of the suspension of a children’s certificate under this section shall be a fixed period not exceeding one year or the unexpired portion of the duration of the certificate, whichever is the less, and the effect of the suspension is that the certificate shall cease to have effect during the period of the suspension.
Where the licensing board may, not more than one month before the expiry of the period of the suspension or, as the case may be, further suspension, determine that the suspension shall be continued for a further period of not more than one year, and this section shall have effect as regards any such further suspension as it has for the purposes of an initial suspension.
a children’s certificate has been suspended under this section, or further suspended under this subsection; and
it appears to the licensing board that the grounds upon which the suspension or further suspension was made continue to obtain,
In section 5 of the principal Act (arrangements for discharge of functions by licensing boards), at the end of subsection (2) there shall be added the following paragraph—
In subsection (1) of section 25 of that Act (transfer of licences)—
after “behalf,” there shall be inserted “temporarily”; and
after “or” there shall be inserted the words “to a new or existing”.
After subsection (1) of that section there shall be added the following subsection—
For subsection (4) of that section there shall be substituted the following subsections—
In section 64 of that Act (occasional and regular extensions of permitted hours), after subsection (3) there shall be inserted the following subsection—
For subsection (7) of that section there shall be substituted the following subsection—
After section 90 of the principal Act there shall be inserted the following section—
Section 90A(1) Dealing wholesale other than from permitted premises Yes — level 5 on the standard scale. Section 90A(2) Wholesaler selling liquor to person under 18 Yes — level 3 on the standard scale. Section 90A(3) Wholesaler permitting person under 18 to sell alcohol without approval Yes — level 1 on the standard scale.
After section 16 of the principal Act (objections in relation to applications), there shall be inserted the following section—
In section 31 of that Act (suspension of licences), after subsection (5) there shall be inserted the following subsection—
After section 97 of the principal Act there shall be inserted the following section—
In section 71 of that Act (defence of due diligence), for the words “or 70” there shall be substituted the words “, 70 or 97A”.
Section 97A Permitting person under 18 to sell alcohol without approval Yes Yes level 3 on the standard scale.
In section 127 of the principal Act (presumptions as to the contents of containers) for subsections (2) to (6) there shall be substituted the following subsections—
Nothing in this section shall apply to the prosecution of any person for an offence committed before the commencement of this section.
Subject to subsections (2) and (3) below, where a child has been cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the child by means of a live television link.
The court may grant an application under subsection (1) above only on cause shown having regard in particular to—
the possible effect on the child if required to give evidence, no such application having been granted; and
whether it is likely that the child would be better able to give evidence if such application were granted.
In considering whether to grant an application under subsection (1) above, the court may take into account, where appropriate, any of the following—
the age and maturity of the child;
the nature of the alleged offence;
the nature of the evidence which the child is likely to be called on to give; and
the relationship, if any, between the child and the accused.
Where a sheriff to whom an application has been made under section 56 of this Act would have granted the application but for the lack of accommodation or equipment necessary to achieve the purpose of the application, he may by order transfer the case to any sheriff court which has such accommodation and equipment available, being a sheriff court in the same sheriffdom.
The sheriff court to which a case is transferred under this section shall be deemed to have granted an application under that section in relation to the case.
Where a court has, or is deemed to have, granted an application made under section 56 of this Act in relation to a child . . ., and the child gives evidence that he recalls having identified, prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the child prior to the trial shall be admissible as evidence as to such identification.
In sections 56, 57 and 58 of this Act, unless the contrary intention appears—
The following subsection shall be inserted at the end of each of sections 3 and 288 of the Criminal Procedure (Scotland) Act 1975 to form subsection (4) and subsection (5) respectively of these sections—
Sections 183 and 384 of the Criminal Procedure (Scotland) Act 1975 (probation) shall be amended as follows—
at the beginning of subsection (1) of each section there shall be inserted “ Subject to subsection (1A) below, ”;
after subsection (1) of each section there shall be inserted the following subsection—; and
in subsection (4) of each section—
for the words “necessary for” there shall be substituted “ conducive to ”; and
for the word “for” in the second place where it occurs there shall be substituted “ to ”.
In subsection (1) of each of sections 186 and 387 of that Act (failure to comply with probation order)—
after the word “from” there shall be inserted “ (a) ”; and
after the word “probationer” where it first occurs there shall be inserted—.
In section 1(1) of the Community Service by Offenders (Scotland) Act 1978 (community service orders), for the words “dealing with him in any other way” there shall be substituted “ imposing on him a sentence of, or including, imprisonment or any other form of detention ”.
In section 27 of the Social Work (Scotland) Act 1968 (supervision and care of persons on probation or released from prison etc)—
at the end of subsection (1) there shall be added—; and ; and
after paragraph (a) of subsection (3) there shall be inserted the following paragraph—.
In section 27A of that Act (grants in respect of community service facilities)—
at the beginning there shall be inserted “ (1) ”; and
for the words from “for the purposes” to the end there shall be substituted—.
In section 27B of that Act (grants in respect of hostel accommodation for certain persons)—
at the beginning there shall be inserted “ (1) ”; and
for the words from “sub-paragraphs (i) and (ii)” to the end there shall be substituted—subsection (2) below. .
In section 94(1) of that Act (interpretation), in paragraph (c) of the definition of “prescribed”, after the word “sections” there shall be inserted “ 27A, 27B, ”.
A court may make a supervised attendance order in the circumstances specified in subsection (3) below.
A supervised attendance order is an order made by a court with the consent of an offender requiring him—
to attend a place of supervision for such time, being 10, 20, 30, 40, 50 or 60 hours, as is specified in the order; and
during that time, to carry out such instructions as may be given to him by the supervising officer.
The circumstances are where—
the offender is of or over 16 years of age; and
having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and either of the following sub-paragraphs applies—
the court, prior to the commencement of this section, has imposed on him a period of imprisonment under paragraph (a) of subsection (1) of section 407 of the Criminal Procedure (Scotland) Act 1975 (power of court, when imposing a fine, to impose also imprisonment on default) but he has not served any of that period of imprisonment;
the court, but for this section, would also have imposed on him a period of imprisonment under that paragraph or paragraph (b) of that subsection (power of court to impose imprisonment when a person fails to pay a fine or any part or instalment thereof); and
the court considers a supervised attendance order more appropriate than the serving of or, as the case may be, imposition of such a period of imprisonment.
Where, in respect of an offender, a court makes a supervised attendance order in circumstances where sub-paragraph (i) of paragraph (b) of subsection (3) above applies, the making of that order shall have the effect of discharging the sentence of imprisonment imposed on the offender.
Schedule 6 to this Act has effect for the purpose of making further and qualifying provision as to supervised attendance orders.
In this section—
The following sections shall be substituted for section 30 of the Criminal Justice (Scotland) Act 1987—
In section 15 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (powers of arrest attached to matrimonial interdicts)—
in subsection (2), after the words “such interdict” there shall be inserted “ together with the attached power of arrest ”; and
in subsection (4)—
after the word “interdict” in the second place where it occurs there shall be inserted “ together with the attached power of arrest ”; and
at the end there shall be added “ and, where the application to attach the power of arrest to the interdict was made after the interdict was granted, a copy of that application and of the interlocutor granting it and a certificate of service of the interdict together with the attached power of arrest ”.
Section 24 of the Housing (Scotland) Act 1987 (definition of homelessness and persons threatened with homelessness) shall be amended as follows.
After subsection (2) there shall be inserted the following subsections—
In subsection (3), after paragraph (b) there shall be inserted—.
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In this section, “the Model Law” means the UNCITRAL Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law on 21st June 1985.
The Model Law shall have the force of law in Scotland in the form set out in Schedule 7 to this Act (which contains the Model Law with certain modifications to adapt it for application in Scotland).
The documents of the United Nations Commission on International Trade Law and its working group relating to the preparation of the Model Law may be considered in ascertaining the meaning or effect of any provision of the Model Law as set out in Schedule 7 to this Act.
The parties to an arbitration agreement may, notwithstanding that the arbitration would not be an international commercial arbitration within the meaning of article 1 of the Model Law as set out in Schedule 7 to this Act, agree that the Model Law as set out in that Schedule shall apply, and in such a case the Model Law as so set out shall apply to that arbitration.
Subsection (4) above is without prejudice to any other enactment or rule of law relating to arbitration.
Subject to subsections (7) and (8) below, this section shall apply in relation to an arbitration agreement whether entered into before or after the date when this section comes into force.
Notwithstanding subsection (6) above, this section shall not apply with respect to any arbitration which has commenced but has not been concluded on the date when this section comes into force.
The parties to an arbitration agreement entered into before the date when this section comes into force may agree that the foregoing provisions of this section shall not apply to that arbitration agreement.
After section 34 (discharge of factors, tutors and curators) of the Judicial Factors Act 1849 there shall be inserted the following section—.
The Unfair Contract Terms Act 1977 shall be amended in accordance with this section.
In section 15(1) (scope of Part II), the words “applies only to contracts,” shall cease to have effect.
In section 16 (liability for breach of duty)—
in subsection (1)—
at the beginning there shall be inserted the words “ Subject to subsection (1A) below, ”;
after the word “contract” in the first place where it occurs there shall be inserted “ , or a provision of a notice given to persons generally or to particular persons, ”;
after the word “term” in the second place where it occurs there shall be inserted “ or provision ”; and
at the end of paragraph (b) there shall be inserted the words “ or, as the case may be, if it is not fair and reasonable to allow reliance on the provision ”;
after subsection (1) there shall be inserted the following subsection—; and
in subsection (3)—
after the word “contract” there shall be inserted “ or a provision of a notice ”; and
after the word “term” in the second place where it occurs there shall be inserted “ or provision ”.
In section 24 (the “reasonableness” test)—
after subsection (2) there shall be inserted the following subsection—;
in subsection (3)—
after the word “contract” in the first place where it occurs there shall be inserted “ or a provision of a notice ”;
after the word “contract” in the second place where it occurs there shall be inserted “ or whether it is fair and reasonable to allow reliance on the provision ”;
after the word “above” there shall be inserted “ in the case of a term in a contract ”; and
in paragraph (a), after the word “term” there shall be inserted “ or provision ”; and
in subsection (4), after the word “contract” there shall be inserted “ or that it is fair and reasonable to allow reliance on a provision of a notice ”.
in subsection (1), after the definition of “hire-purchase agreement” there shall be inserted—
subsections (3)(d) and (4) shall cease to have effect.
This section shall have effect only in relation to liability for any loss or damage which is suffered on or after the date appointed for its coming into force.
For subsection (2) of section 8 of the Administration of Justice Act 1982 (services rendered to injured person) there shall be substituted the following subsections—
Without prejudice to Parts II and III of the Prescription and Limitation (Scotland) Act 1973, this section shall apply to rights accruing both before and after the date appointed for its coming into force, but shall not affect any proceedings commenced before that date.
In any civil proceedings to which this section applies, the court may (whether or not on application made to it) request a party to the proceedings—
to provide a sample of blood or other body fluid or of body tissue for the purpose of laboratory analysis;
to consent to the taking of such a sample from a child in relation to whom the party has power to give such consent.
Where a party to whom a request under subsection (1) above has been made refuses or fails— the court may draw from the refusal or failure such adverse inference, if any, in relation to the subject matter of the proceedings as seems to it to be appropriate.
to provide or, as the case may be, to consent to the taking of, a sample as requested by the court, or
to take any step necessary for the provision or taking of such a sample,
In section 6 of the Law Reform (Parent and Child) (Scotland) Act 1986 (determination of parentage by blood sample)—
in subsection (1), for the words “blood sample” there shall be substituted “ sample of blood or other body fluid or of body tissue ”; and
in each of subsections (2), (3) and (4), for the words “a blood” there shall be substituted “ such a ”.
This section applies to any civil proceedings brought in the Court of Session or the sheriff court—
on or after the date of the commencement of this section; or
before the said date in a case where the proof has not by that date begun.
Any rule of law by which a factory and commission or power of attorney ceases to have effect in the event of the mental incapacity of the granter shall not apply to a factory and commission or power of attorney granted on or after the date on which this section comes into force.
In subsection (1) above, “mental incapacity” means, in relation to a person, that he is incapable of managing his property and affairs by reason of mental disorder within the meaning of section 1 of the Mental Health (Scotland) Act 1984.
For section 36B of the Companies Act 1985 (execution of documents: Scotland) there shall be substituted the following section—
Where, on or after 31 July 1990 and prior to the coming into force of this section, a document was signed or subscribed, in accordance with section 36B(2) of the Companies Act 1985 (as inserted by section 130(3) of the Companies Act 1989), by— that document shall be deemed to have been validly executed by the company or body corporate in accordance with subsection (2) of section 36B of the 1985 Act as substituted by subsection (1) above.
a company; or
a body corporate to which section 36B of the 1985 Act (as so inserted) applied by, under or by virtue of any enactment,
Where, on or after 31 July 1990 and prior to the coming into force of this section, the presumption in section 36B(3) of the Companies Act 1985 (as inserted by section 130(3) of the Companies Act 1989) applied in relation to a document, that document shall be deemed to have been validly executed in accordance with subsection (3) of section 36B of the 1985 Act as substituted by subsection (1) above, and subsection (4) of that section as so substituted shall apply to the document as if it bore to be so executed.
For the avoidance of doubt, in determining, for the purposes of subsection (3) above, whether the presumption in section 36B(3) of the Companies Act 1985 (as inserted by section 130(3) of the Companies Act 1989) applied in relation to a document, the reference in section 36B(2)(b) of the 1985 Act (as so inserted) to the last page shall be construed as a reference to the last page of the document excluding any inventory, appendix, schedule, plan or other document annexed to the document.
Any reference to section 36B of the Companies Act 1985 (however expressed) in any enactment (including an enactment contained in a statutory instrument) shall be construed as a reference to section 36B of that Act as substituted by subsection (1) above.
There shall be paid out of money provided by Parliament—
the expenses of the Lord Advocate in carrying out his functions under Part I of this Act;
the remuneration and expenses of the Scottish legal services ombudsman appointed under section 34 of this Act and of any staff appointed for the ombudsman under Schedule 3 to this Act;
the remuneration of temporary judges appointed under section 35(3) of this Act;
any grant paid by the Secretary of State to the Scottish Conveyancing and Executry Services Board under section 16 of this Act; and
any increase attributable to the provisions of this Act in the sums payable under any other Act out of money provided by Parliament.
Sums repaid to the Secretary of State under section 16(3) of this Act shall be paid by him into the Consolidated Fund.
The enactments mentioned in Schedule 8 to this Act shall have effect subject to the amendments specified in that Schedule.
The enactments mentioned in Schedule 9 to this Act are hereby repealed to the extent specified in the third column of that Schedule.
This Act may be cited as the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
Subject to subsections (3) and (4) below, this Act shall come into force on such day as the Secretary of State may appoint by order made by statutory instrument and different days may be appointed for different provisions and for different purposes.
The provisions of— shall come into force at the end of the period of two months beginning with the day on which this Act is passed.
Part III and section 66 of this Act and so much of section 74 as relates to those provisions; and
sections 67, 70 and 71 of this Act and paragraphs 21 and 34 of Schedule 8 to this Act,
Paragraph 27(3) of Schedule 8 to this Act shall come into force on the day on which this Act is passed.
Subject to subsections (6) and (7) below, this Act extends to Scotland only.
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Paragraph 17 of Schedule 1 to this Act, paragraph 11 of Schedule 3 to this Act and Schedule 9 to this Act so far as relating to the House of Commons Disqualification Act 1975 extend also to England and Wales and Northern Ireland.
Sections 16 and 20.
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a chairman; and
not less than 6 nor more than 9 other members,
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that members of the Board have expertise or knowledge of—
the provision of conveyancing and executry services;
the financial arrangements connected with the purchase and sale of heritable property;
consumer affairs; and
commercial affairs; and
that, so far as is reasonably practicable, the composition of the Board is such as to provide a proper balance between the interests of, on the one hand, qualified conveyancers and executry practitioners and, on the other hand, those who make use of their services.
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an inquiry under subsection (1) of section 20 of this Act;
a review of a decision by virtue of subsection (11)(a) of that section; and
consideration by the Board whether to exercise the powers conferred on them by section 21 of this Act.
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the production or delivery to any person appointed by the Board, at a time and place specified in the notice, of such documents so specified as are in the possession or control of the practitioner and relate to the subject matter of the investigation; and
an explanation, within such period being not less than 21 days as the notice may specify, from the practitioner regarding the subject matter of the investigation.
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Section 25.
Any professional or other body making an application under section 25 of this Act shall, for a period of six weeks beginning with the date on which the application is submitted to the Lord President and the Secretary of State—
make a copy of the draft scheme referred to in section 25(2) of this Act available for public inspection at a specified place; and
on a request from any person—
send him a copy of the draft scheme; or
make a copy of the draft scheme available for public inspection at a suitable place in his locality.
Any person may make written representations concerning any draft scheme submitted under section 25 of this Act, and such representations shall—
be made to both the Lord President and the Secretary of State; and
be delivered to both the Lord President and the Secretary of State before the expiry of the period of six weeks beginning with the date on which the application is made.
At the same time as an application under section 25 is submitted to the Lord President and the Secretary of State, the body making the application shall place an advertisement mentioning the matters referred to in paragraph 4 below in the Edinburgh Gazette and in a daily newspaper circulating throughout Scotland.
An advertisement such as referred to in paragraph 3 above shall state that—
a copy of the draft scheme referred to in section 25(2) of this Act will be available for public inspection at a specified place for a period of six weeks beginning with the date on which the advertisement appears;
a copy of the draft scheme will be—
sent, free of charge, to any person on request; or
made available for public inspection at a suitable place in that person’s locality;
any person may make written representations concerning the draft scheme to the Lord President and the Secretary of State; and
any such representations are to be delivered within the period of six weeks beginning with the date on which the application is made.
Section 34.
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The Secretary of State may give general directions to the ombudsman about the scope and discharge of his functions, and shall publish any such directions.
The Secretary of State may with the consent of the Treasury determine the terms and conditions of service, including remuneration, of the ombudsman. Where a person appointed to the office of ombudsman ceases to hold that office otherwise than on the expiry of the term of office specified in his appointment, and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Secretary of State may, with the consent of the Treasury, make a payment to that person of such amount as the Secretary of State may, with the consent of the Treasury, determine.
The Secretary of State may appoint staff for the ombudsman of such number, and on such terms and conditions of service, as he may with the consent of the Treasury determine; and such terms and conditions may include provision as to remuneration, and as to compensation for loss of employment (which may take the form of pensions, allowances or gratuities).
Neither the ombudsman nor his staff are, in such capacity, Crown servants.
The Secretary of State shall pay the expenses of the ombudsman and of his staff.
Without prejudice to section 33(3) of this Act, a professional organisation within the meaning of subsection (5) of that section shall furnish the ombudsman with such information as he may from time to time reasonably require.
Every such professional organisation shall, severally, consider any report which they may receive from the ombudsman, and shall notify him of any action which they have taken in consequence.
The ombudsman shall make an annual report of the discharge of the functions conferred on him under this Act to the Secretary of State.
The Secretary of State shall lay any report made to him under paragraph 9 above before each House of Parliament.
In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying for membership) there shall be inserted at the appropriate place in alphabetical order the entry “Scottish legal services ombudsman appointed under section 34 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990”.
Section 35.
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sheriffs principal and sheriffs who have held office as such for a continuous period of not less than 5 years; and
solicitors who, by virtue of section 25A (rights of audience) of the Solicitors (Scotland) Act 1980, have for a continuous period of not less than 5 years had a right of audience in both the Court of Session and the High Court of Justiciary.
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The Court of Session Act 1988 shall be amended as follows. In section 2 (composition of court)— In section 3 (exchequer causes), for the words “Court by Act of Sederunt” there shall be substituted the words “ Lord President ”.
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paragraph 1 above; or
any other enactment,
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the appointment, tenure of office, retirement, removal or disqualification of judges of that Court, including, without prejudice to the generality of the foregoing, any enactment or rule of law relating to the number of judges who may be appointed; and
the remuneration, allowances or pensions of such judges.
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he may attend at the Court of Session or the High Court of Justiciary for the purpose of continuing to deal with, giving judgment in, or dealing with any matter relating to, any case begun before him while acting as a judge of either Court; and
for that purpose, and for the purpose of any proceedings arising out of any such case or matter, he shall be treated as being or, as the case may be, having been, a judge of the relevant Court.
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any appointment held by him as a sheriff principal or sheriff; or
his continuing with any business or professional occupation not inconsistent with his acting as a judge.
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Section 49.
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The holder of a public house licence or hotel licence in respect of any premises or the applicant for a new public house or hotel licence or for the renewal of such a licence may make an application for a children’s certificate in respect of those premises, and any such application shall be in such form as may be prescribed, shall be completed and signed by the applicant or his agent and shall be lodged with the clerk of the licensing board within whose area the premises are situated not later than five weeks before the first day of the meeting of the board at which the application is to be considered.
On any application for the grant of a children’s certificate in respect of only part of any premises, the licensing board may require a plan of the premises to which the application relates to be produced to it and lodged with the clerk. A plan produced and lodged in accordance with this paragraph shall be such as will enable the board to ascertain to which part of the premises it is proposed the certificate should relate.
A copy of every application made under this Schedule shall be sent by the applicant to the chief constable, and if the chief constable desires to object to the grant of a children’s certificate he shall, not later than seven days before the meeting of the licensing board at which the application is to be considered— and the chief constable shall be entitled to appear at the meeting of the licensing board which considers the application and make objection to the grant of the certificate.
lodge with the clerk of the board a written notice of his objection specifying the grounds of his objection to the grant of the certificate; and
intimate such objection and grounds to the applicant,
A licensing board shall not, within two years of its refusal of an application made under paragraph 2 above in respect of any premises, entertain another such application in respect of those premises unless it has made a direction to the contrary in respect of that refusal.
An application for a new public house licence or hotel licence or for the renewal of such a licence under section 10 of the principal Act shall state whether the applicant is making an application for a children’s certificate.
The grant of an application for a children’s certificate shall come into effect on the making of the grant or, in the case of such an application made with an application for a new public house or hotel licence, on the day on which such licence comes into effect.
The grant of an application for a children’s certificate made at the time of an application for the renewal of a licence shall come into effect on the renewal of the licence to which the application relates.
If an application for a children’s certificate is made at the same time as an application for the renewal of a licence, any existing grant of such an application for a children’s certificate shall continue to have effect until the first mentioned application is granted or, as the case may be, refused by the board.
The grant of an application for a children’s certificate shall cease to have effect when the licence to which it relates ceases to have effect.
A court shall not make a supervised attendance order in respect of any offender unless— Before making a supervised attendance order, the court shall explain to the offender in ordinary language— The Secretary of State may by order direct that subsection (2) of section 6 of this Act shall be amended by substituting, for any number of hours specified in that subsection such other number of hours as may be specified in the order; and an order under this subsection may in making such amendment specify different such numbers of hours for different classes of case. An order under paragraph (3) above shall be made by statutory instrument, but no such order shall be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
A supervised attendance order shall— Where, whether on the same occasion or on separate occasions, an offender is made subject to more than one supervised attendance order, the court may direct that the requirements specified in any of those orders shall be concurrent with or additional to those specified in any other of those orders, but so that at no time shall the offender have an outstanding number of hours during which he must carry out the requirements of these orders in excess of the largest number specified in section 62 of this Act. Upon making a supervised attendance order the court shall— Where a copy of a supervised attendance order has, under sub-paragraph (3)(a) above, been sent by registered post or by the recorded delivery service, an acknowledgement or certificate of delivery of a letter containing the copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgement or certificate.
An offender in respect of whom a supervised attendance order is in force shall report to the supervising officer and notify him without delay of any change of address or in the times, if any, at which he usually works. Subject to paragraph 5(1) below, instructions given under a supervised attendance order shall be carried out during the period of twelve months beginning with the date of the order; but, unless revoked, the order shall remain in force until the offender has carried out the instructions given under it for the number of hours specified in it. The instructions given by the supervising officer under the order shall, so far as practicable, be such as to avoid any conflict with the offender’s religious beliefs and any interference with the times, if any, at which he normally works or attends a school or other educational establishment.
If at any time while a supervised attendance order is in force in respect of any offender it appears to the appropriate court, on information from the supervising officer, that that offender has failed to comply with any of the requirements of paragraph 3 above or of the order (including any failure satisfactorily to carry out any instructions which he has been given by the supervising officer under the order), the court may issue a warrant for the arrest of that offender, or may, if it thinks fit, instead of issuing a warrant in the first instance issue a citation requiring the offender to appear before that court at such time as may be specified in the citation. If it is proved to the satisfaction of the court before which an offender is brought or appears in pursuance of sub-paragraph (1) above that he has failed without reasonable excuse to comply with any of the requirements of paragraph 3 above or of the order (including any failure satisfactorily to carry out any instructions which he has been given by the supervising officer under the order), the court may— The evidence of one witness shall, for the purposes of sub-paragraph (2) above, be sufficient evidence.
Where a supervised attendance order is in force in respect of any offender and, on the application of that offender or of the supervising officer, it appears to the appropriate court that it would be in the interests of justice to do so having regard to circumstances which have arisen since the order was made, that court may— If the appropriate court is satisfied that the offender proposes to change, or has changed, his residence from the locality for the time being specified under paragraph 2(1)(a) above to another locality and— that court may, and on application of the supervising officer shall, amend the order by substituting that other locality for the locality for the time being specified in the order; and the provisions of section 62 of this Act and of this Schedule shall apply to the order as amended. Where the court proposes to exercise its powers under sub-paragraph (1)(a), (b) or (d) above otherwise than on the application of the offender, it shall issue a citation requiring him to appear before the court and, if he fails to appear, may issue a warrant for his arrest.
The Secretary of State may make rules for regulating the carrying out of the requirements of supervised attendance orders. Without prejudice to the generality of subsection (1) above, rules under this section may— Rules under this paragraph shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
The Secretary of State shall lay before Parliament each year, or incorporate in annual reports he already makes, a report of the operation of section 62 of this Act and this Schedule.
In section 27 of the Social Work (Scotland) Act 1968 (supervision of persons put on probation, released from prison or subject to community service orders)—
in subsection (1)(b) there shall be inserted at the end the following; and ;
for the words “probation and community service scheme”, wherever they occur, there shall be substituted the words “probation, community service and supervised attendance scheme”.
In this Schedule— Except where the context otherwise requires, expressions used in this Schedule and in the Criminal Procedure (Scotland) Act 1975 have the same meanings in this Schedule as in that Act.
Section 66.
This Law applies to international commercial arbitration, subject to any agreement in force between the United Kingdom and any other State or States which applies in Scotland. The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of arbitration is in Scotland. An arbitration is international if: For the purposes of paragraph (3) of this article: This Law shall not affect any other enactment or rule of law in force in Scotland by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law.
Unless otherwise agreed by the parties: The provisions of this article do not apply to communications in court proceedings.
“Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.
A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests at any time before the pleadings in the action are finalised, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.
It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure. In paragraph (1) of this article “interim measure of protection” includes, but is not limited to, the following: Where: the court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.
The parties are free to determine the number of arbitrators. Failing such determination, there shall be a single arbitrator.
No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties. The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article. Failing such agreement, Where, under an appointment procedure agreed upon by the parties: any party may request the court specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. A decision on a matter entrusted by paragraph (3) or (4) of this article to the court specified in article 6 shall be subject to no appeal. The court, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.
When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him. An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article. Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may, within thirty days after having received notice of the decision rejecting the challenge, request the court specified in article 6 to decide on the challenge, which decision shall be subject to no appeal. While such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.
If an arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from his office or if the parties agree on the termination. Otherwise, if a controversy remains concerning any of these grounds, any party may request the court specified in article 6 to decide on the termination of the mandate, which decision shall be subject to no appeal. If, under this article or article 13(2), an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this article or article 12(2).
The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified. The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules on such a plea as a preliminary question, any party may, within thirty days after having received notice of that ruling, request the court specified in article 6 to decide the matter, which decision shall be subject to no appeal. While such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure. An order under paragraph (1) of this article shall take the form of an award and articles 31, 35 and 36 shall apply accordingly.
Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.
The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal. The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.
Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.
Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party. The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents. All statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party. Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.
Unless otherwise agreed by the parties, the arbitral tribunal: Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.
The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules. Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.
If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if so requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.
The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated. The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is on agreed terms under article 30. The award shall state its date and the place of arbitration as determined in accordance with article 20(1). The award shall be deemed to have been made at that place. After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this article shall be delivered to each party.
The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2) of this article. The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when: The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of articles 33 and 34(4).
Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties: If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award. The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of this article on its own initiative within thirty days of the date of the award. Unless otherwise agreed by the parties, a party, with notice to the other party, may, within thirty days of receipt of the award, request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award. The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction or interpretation under paragraph (1) of this article. The provisions of article 31 shall apply to a correction or interpretation of the award or to an additional award.
Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article. An arbitral award may be set aside by the court specified in article 6 only if: An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal. This paragraph does not apply to an application for setting aside on the ground mentioned in paragraph (2)(a)(v) of this article. The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.
An arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36. The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referred to in article 7 or a duly certified copy thereof. If the award or agreement is not made in English, the party shall supply a duly certified translation thereof into English.
Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only: If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1)(a)(v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.
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Section 74.
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In subsection (2) of section 5 (restriction on power of licensing board to delegate functions) at the end there shall be added the following paragraph—
In subsection (6) of that section after the words “(a) to (i)” there shall be added the words “and (l)”
In subsection (3) of section 6 (voting by chairman) the words from “Provided that” to the end of the subsection shall cease to have effect.
In section 16 (persons who may object to licence applications)—
in subsection (1), at the end there shall be added—;
in subsection (3), after “made,” there shall be inserted the words “or, in the case of the agent of an applicant, shall be his place of business,”; and
in subsection (5), for the word “hear” there shall be substituted the words “, whether or not the objector appears, consider”.
the board is satisfied that the grant of the application would result in the over provision of licensed premises in the locality,
In section 18 (giving of reasons for decisions of a licensing board)—
in subsection (1), after “shall” there shall be inserted the words “, within 21 days of being required to do so under subsection (2) below,” and the words “when required to do so under subsection (2) below” shall cease to have effect; and
in subsection (4), at the beginning there shall be inserted the words “The period of 21 days referred to in subsection (1) above and”.
In section 21 (issue of licences)—
in subsection (1), at the end there shall be added the words “and shall do so within 28 days of the grant of the licence”;
in subsection (2), for the words “when lawfully required” there shall be substituted the words “on application”; and
after subsection (2) there shall be added the following subsection—
In section 33 (occasional licence for premises other than licensed premises)—
in subsections (1) and (2) for the words “on such day” in each place where they occur there shall be substituted the words “for such period of not more than 14 days”;
in subsection (9) there shall be added at the end the words “but the board shall not cause to be published the address of the applicant if the applicant provides the name and address of an agent through whom he may have intimated to him any objections.”
In subsection (1) of section 34 of that Act (occasional permission to sell alcoholic liquor) for the words “on such day” there shall be substituted the words “for such period of not more than 14 days”.
Section 39 (appeals against the decisions of licensing boards) shall be amended as follows. After subsection (2) there shall be inserted the following subsection— In subsection (5) for the words “grounded on paragraph (b) of subsection (4) above” there shall be substituted the words “under this section”.
In section 64—
in subsection (1), after the words “an entertainment licence” there shall be inserted the words “, a refreshment licence”; and
after subsection (8) there shall be inserted the following subsection—
In each of subsections (1) and (2) of section 69 (prohibition on children being in certain licensed premises) at the beginning there shall be inserted the words “Subject to section 49 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990”.
In section 70 (children in premises in respect of which a refreshment licence is held) for the number “21” there shall be substituted the number “18”.
In section 97 (restrictions on supply of alcoholic liquor on off-sale premises)—
in subsection (1) for the words “supplies to any person, gratuitously or otherwise,” there shall be substituted the words “sells to any person”; and
in subsection (2) the words “or supply” shall be omitted.
In paragraph (j) of section 108 (grounds of objection to renewal of registration by club) after the word “is” there shall be inserted the words “or, in the case of an application for the renewal of a certificate of registration, has been, at any time during the currency of the certificate of registration in respect of which the application for renewal is made,”.
In subsection (1) of section 109 (cancellation of certificate of registration of club) after the word “being” there shall be inserted the words “or has been, at any time during the currency of the certificate of registration,”.
In section 139 (interpretation) after subsection (4) there shall be inserted the following subsections—
In section 38 of the Probate and Legacy Duties Act 1808 (executors to exhibit inventories of estate)—
for the words “oath or solemn affirmation” in both places where they occur there shall be substituted “ declaration ”; and
the words from “(which oath” to “administer)” shall cease to have effect.
In section 3 of the Confirmation of Executors (Scotland) Act 1823 (which requires applications for confirmation to relate to the whole known moveable estate), for the word “oath” in both places where it occurs there shall be substituted “ declaration ”. In section 4 of that Act (confirmation by executor’s creditor), for the word “oath” there shall be substituted “ declaration ”.
In section 5 (factor to lodge monies in one of the banks of Scotland) of the Judicial Factors Act 1849— In section 33 (power of accountant to require information) of that Act, for the word “bank”— In section 34 (discharge of factors, tutors and curators) of that Act, at the beginning there shall be inserted the words “ Subject to section 34A of this Act, ”. In section 37 (accumulation of principal and interest on accounts and deposits) of that Act—
In section 2 of the Confirmation of Executors (Scotland) Act 1858 (petition for confirmation to be subscribed by petitioner or his agent), at the end there shall be added “ or by an executry practitioner or a recognised financial institution providing executry services within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 ”. In Schedules D and E to that Act (forms of confirmation), for the word “oath” there shall be substituted “ declaration ”.
In the second part of the Schedule to the Promissory Oaths Act 1868 (officers required to take oath of allegiance and judicial oath), after the words “Judges of the Court of Session in Scotland” there shall be inserted the words “ , temporary judges of the Court of Session and High Court of Justiciary appointed under section 35(3) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, ”.
In section 3 of the Intestates Widows and Children (Scotland) Act 1875 (commissary clerk to prepare inventory etc for widow or children where deceased’s estate small)— In Schedule A to that Act (form of inventory etc)— In Schedule B to that Act (form of confirmation)—
In section 3 of the Small Testate Estates (Scotland) Act 1876 (simplified procedure for confirmation to small estates)— In Schedule A to that Act (form of inventory etc)— In Schedule B to that Act (form of confirmation), for the word “oath” there shall be substituted “ declaration ”.
For subsection (1) of section 33 (Sheriff Court Rules Council) of the Sheriff Courts (Scotland) Act 1971 there shall be substituted the following subsection— In subsection (3) of that section, for the words “consultation with such persons as may appear to him appropriate” there shall be substituted the words “ such consultation as is mentioned in paragraph (a) or, as the case may be, (b) of subsection (1) above ”.
The Criminal Procedure (Scotland) Act 1975 shall be amended as follows. After section 282 there shall be inserted the following sections—. In subsection (1)(b) of section 407 (imprisonment for non-payment of fine), at the end there shall be inserted “ either with immediate effect or to take effect in the event of the person failing to pay the fine or any part or instalment of it by such further time as the court may order ”.
In section 4 of the Community Service by Offenders (Scotland) Act 1978 (which, amongst other things, gives the court powers to deal with failure to comply with community service orders) there shall be added at the end the following subsection—.
The Solicitors (Scotland) Act 1980 shall be amended as follows. In section 9 (removal of name from roll on request)— In section 10 (restoration of name to roll on request), in subsection (1A)— In section 20 (duty of Council to supply lists)— In section 26 of the 1980 Act (offence for solicitors to act as agents for unqualified persons)— In section 32 (which makes it an offence for unqualified persons to prepare writs and papers relating to certain matters)— At the end of section 33 (unqualified person not entitled to fees etc.) there shall be inserted the words “ or in relation to writs framed or drawn by a person who is, by virtue of an act of sederunt made under section 32 of the Sheriff Courts (Scotland) Act 1971, permitted to represent a party to a summary cause. ” In section 42A (powers of Council where inadequate professional services alleged), at the end of subsection (2) there shall be inserted the following paragraph— In section 51(3) (complaints to Scottish Solicitors Discipline Tribunal)— In section 53 (powers of Tribunal)— In section 53A (inadequate professional services: powers of Tribunal), In section 55 (powers of court)— After section 56 there shall be inserted the following section— In section 63 (penalties and time limit for prosecution of offences)— In subsection (1) of section 65 (interpretation)— In Schedule 1 (The Law Society of Scotland), after paragraph 11 there shall be inserted— In Schedule 4 (constitution, procedure and powers of Tribunal)—
For section 76 of the Criminal Justice (Scotland) Act 1980 (presumption as to the contents of containers) there shall be substituted the following section— Nothing in this paragraph shall apply to the prosecution of any person for an offence committed before the commencement of this paragraph.
In section 6(3)(e) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (occupancy rights after dealing with third parties)— In section 8 of that Act (interests of heritable creditors)—
Section 42(3)(b) of the Representation of the People Act 1983 (nomination paper in local election to contain statement of acceptance of office) shall cease to have effect.
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In section 8(1) of the Family Law (Scotland) Act 1985 (orders for financial provision on divorce etc)—
in paragraph (a), the words “or the transfer of property” shall cease to have effect; and
at the end of paragraph (a) there shall be inserted the following paragraph—.
Section 53(3) of the Insolvency Act 1986 (execution of instrument appointing receiver) shall cease to have effect.
In subsection (3) of section 4 (Scottish Legal Aid Fund) of the Legal Aid (Scotland) Act 1986— In subsection (1) of section 6 (definitions) of that Act, for the words “if and so far as may be necessary”, in both places where they occur, there shall be substituted the words “ where appropriate ”. In subsection (2) of section 13 (meaning of “civil legal aid”) of that Act, for the words “(so far as is necessary)” there shall be substituted the words “ , where appropriate, ”. In subsection (3) of section 14 (availability of civil legal aid) of that Act, at the beginning there shall be inserted the words “ Subject to subsections (4) to (6) below, ”. After the said subsection (3) there shall be inserted the following subsections— After subsection (2) of section 17 (contributions and payments out of property received) of that Act, there shall be inserted the following subsections—. Subsections (3) to (5) of that section shall cease to have effect. In subsection (6) of that section, for the words “subsection (5)” there shall be substituted the words “ subsection (2A) or (2B) ”. In subsection (8) of that section, for the words from “subsection” to the end there shall be substituted the words “ subsection (1) above and in section 33 of this Act to “fees and outlays” include references to sums which would have been payable to that solicitor if he had been so employed. ” In subsection (4) of section 21 (scope and nature of criminal legal aid) of that Act, for the words “(so far as is necessary)” there shall be substituted the words “ , where appropriate, ”. In subsection (8) of section 29 (legal aid in certain proceedings relating to children) of that Act, for the words “(so far as is necessary)” there shall be substituted the words “ , where appropriate, ”. In subsection (4) of section 30 (legal aid in contempt proceedings) of that Act, for the words “(so far as is necessary)” there shall be substituted the words “ , where appropriate, ”. In subsection (1) of section 31 (solicitors and counsel) of that Act, for the words “his counsel” there shall be substituted the words “ or a solicitor holding rights of audience by virtue of section 25A (rights of audience) of the Solicitors (Scotland) Act 1980, his counsel or such a solicitor ”. In subsection (9)(b) of the said section 31, at the beginning there shall be inserted “ Subject to subsection (11) below, ”. At the end of the said section 31 there shall be inserted the following subsection—. In subsection (3) of section 33 (fees and outlays of counsel and solicitors) of that Act— shall cease to have effect.
In section 6(1) of the Criminal Justice (Scotland) Act 1987 (definition of implicative gifts), for the words “mentioned in section 5(2) of this Act” there shall be substituted “ on which, in respect of a person suspected of, or charged with, an offence to which section 1 of this Act relates, the warrant to arrest and commit was granted, or a restraint order was made (whichever first occurs). ”
For section 48 (limited right of audience of solicitor before the court) of the Court of Session Act 1988 there shall be substituted the following sections—.
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Section 74. Chapter Short title Extent of repeal 1808 c. 149. The Probate and Legacy Duties Act 1808. In section 38, the words from “(which oath” to “administer)”. 1858 c. 56. The Confirmation of Executors (Scotland) Act 1858. Section 11. 1875 c. 41. The Intestates Widows and Children (Scotland) Act 1875. In section 6, the words from the beginning to “affirmations.”.In Schedule A, the words from “All which” to the end. 1876 c. 24. The Small Testate Estates (Scotland) Act 1876. Section 6.In Schedule A, the words from “All which” to the end. 1900 c. 55. The Executors (Scotland) Act 1900. Section 8. 1907 c. 51. The Sheriff Courts (Scotland) Act 1907. In section 40, the words from “agents” to “1967)”. 1975 c. 24. The House of Commons Disqualification Act 1975. In Schedule 1, the words “lay observer appointed under section 49 of the Solicitors (Scotland) Act 1980”. 1976 c. 66. The Licensing (Scotland) Act 1976. In section 6, the words from “Provided that” to the end of the subsection.In section 18, in subsection (1), the words from “when” to the end.Section 55.Section 61.In section 97(2), the words “or supply”.Sections 131 and 132.In section 133(4), the words “and (6)”.In Schedule 4, in paragraph 1, the words from “as” to “Act”, paragraphs 12, 13 and 14, in paragraph 15, the words “or 12 above”, paragraphs 16, 17 and 19 to 22. 1977 c. 50. The Unfair Contract Terms Act 1977. In section 15(1), the words “applies only to contracts,”.In section 25, subsections (3)(d) and (4). 1980 c. 46. The Solicitors (Scotland) Act 1980. In section 20(1), the word “and”.Section 27.Section 29.Section 31(3).Section 49.In section 63(1), the words “and to imprisonment for a period not exceeding one month”.In section 65(1), the definition of “lay observer”.In Schedule 4, in paragraph 1, the words “appointed by the Lord President” following sub-paragraph (b), and in paragraph 17, the words from “also” to “before the order” and the words from “and in such other manner” to the end.Schedule 5. 1981 c. 59. The Matrimonial Homes (Family Protection) (Scotland) Act 1981. In section 6(3)(e), the words “, at or before the time of the dealing,”.In section 8, in subsection (2), the words “before the granting of the loan”, and in subsection (2A), the words “at or before the granting of the security”. 1983 c. 2. The Representation of the People Act 1983. Section 42(3)(b). 1983 c. 12. The Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983. In Schedule 1, paragraph 7. 1985 c. 6. The Companies Act 1985. In section 38(1), the words “under the law of England and Wales”.In section 39(3), the words “or, in the case of a company registered in Scotland, subscribed in accordance with section 36B,”.In section 186, the words “(or, in the case of a company registered in Scotland, subscribed in accordance with section 36B)”.In section 188(2), the words “(or, in the case of a company registered in Scotland, subscribed in accordance with section 36B)”.Section 462(2). 1985 c. 37. The Family Law (Scotland) Act 1985. In section 8(1)(a), the words “or the transfer of property”. 1985 c. 73. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. In Part I of Schedule 1, paragraphs 4 and 5. 1986 c. 45. The Insolvency Act 1986. Section 53(3). 1986 c. 47. The Legal Aid (Scotland) Act 1986. In section 4(3), paragraph (a) and, in paragraph (b), the words “a court”.In section 13(2), the words “(so far as is necessary)”.Section 17(3) to (5).In section 33(3), in paragraph (c), the words “and taxation” and “or taxation”, and, in paragraph (d), the word “, taxation”. 1988 c. 34. The Legal Aid Act 1988. In paragraph 3 of Schedule 4, sub-paragraphs (b) and (c). 1988 c. 36. The Court of Session Act 1988. Section 5(g). 1989 c. 40. The Companies Act 1989. Section 130(3).In Schedule 17, paragraphs 1(2), 2(4), 8 and 10.