Commentary on Sections Part 5 – General Section 77: Advice, services or activities to which Act does not apply
206.Regulation of the legal profession in Scotland is not reserved unlike the regulation of architects(1) or the regulation of insolvency practitioners(2). Although the regulation of the legal profession is devolved, there are certain discrete areas where the Law Society of Scotland or the Faculty of Advocates is the regulatory body or co-regulatory body in terms of a UK statute, the subject matter of which is reserved. Therefore section 77 provides that nothing in the Act applies to complaints about, or the provision of advice, services or activities in relation to (a) activities carried out by virtue of a group licence under the Consumer Credit Act 1974; (b) activities of an insolvency practitioner within the meaning of the Insolvency Act 1986; (c) complaints about solicitors under the Financial Services Act 2000 1986 (the Law Society of Scotland retains the function of dealing with complaints about solicitors in relation to investment business carried on under the 1986 Act, as this function of recognising professional bodies was saved on repeal of the 1986 Act); (d) immigration advice or immigration services within the meaning of the Immigration and Asylum Act 1999; (e) regulated activities within the meaning of section 22 of the Financial Services and Markets Act 2000 in relation to which the Law Society of Scotland has been delegated a regulatory role by the Financial Services Authority (the activities covered include such matters as dealing or arranging deals in investment, managing investments or giving investment advice); and (f) financial services constituting exempt regulated activities under the Financial Services and Markets Act 2000.
207.It is intended that such advice or services should be subject to provisions analogous to those provided for by the Act in respect of the services with which it deals. The extension of the provisions of the Act to the advice and services listed in (a) to (f) above will be achieved through the Legal Services Bill which was introduced in the House of Lords on 23 November 2006.
208.The Act leaves these discrete reserved areas untouched. In schedule 5, the 1980 and 1990 Acts are amended to restrict the references to ‘inadequate professional services’ to these discrete areas. This means that, for example, the persons mentioned in section 51(3) of the 1980 Act may still make complaints to the Scottish Solicitors’ Discipline Tribunal in relation to inadequate professional services in relation to the discrete reserved areas.
209.The definition of “complaints” and “practitioners” in section 46 (which deals with the interpretation of Part 1 of the Act), is extended to the references to complaints and practitioners in section 77(1) of the Act.