300.Paragraph 10 amends the 1980 Act to make provision for regulatory complaints remitted to the Council by section 7A(2) of the 2007 Act (or treated as having been remitted to them under that section by virtue of section 33B(2) of that Act). The following paragraphs describe the changes made to the 1980 Act by paragraph 10.
301.As “regulatory complaints” are a new concept in the 1980 Act, section 65 of that Act is amended to include a definition in accordance with the 2007 Act. Section 3A of the 1980 Act is amended to prevent regulatory complaints remitted to the Council, or those treated as having been so remitted, from being determined by an individual.
302.New section 42E has been inserted into the 1980 Act. It introduces powers relating to regulatory complaints into that Act. Regulatory complaints are determined under section 52A of the 2007 Act. However, before they are determined, section 42E(1) of the 1980 Act enables the Council to propose a settlement to the authorised legal business or licensed provider and complainer, or to accept a proposal from an authorised legal business or licensed provider that it considers is fair and reasonable in the circumstances. If the settlement is accepted, then the Council must make a direction giving effect to it and may not determine the complaint unless the authorised legal business or licensed provider has failed to comply with the direction (or the direction is quashed on appeal).
303.Where a regulatory complaint is upheld, the Council must censure the authorised legal business or licensed provider and may provide that the censure is to have effect for a specified period (and must give reasons for doing so in a report). The Council may also require the solicitor of the authorised legal business or licensed provider to undertake further education or training, impose a fine, impose conditions on the solicitor’s practising certificate (which may also be time-limited and the Council must give reasons for doing so), order that the authorisation of a legal business is subject to conditions or impose any other sanction permitted by the regulatory scheme of the Council.
304.The amendments also make provision for appeals as a result of the new decisions that can be made by the Council in the new section 42E. Section 42E(7) enables an authorised legal business or licensed provider to appeal to the Tribunal, and section 42E(8) enables a complainer to appeal to the Tribunal. New section 53ZE provides for the powers of the Tribunal in relation to these appeals. The Tribunal may quash or confirm various decisions of the Council and, among other things, make other orders such as ordering that the practising certificate of the solicitor is subject to conditions, the authorisation of a legal business is withdrawn or subject to conditions, or may impose a fine.
305.Section 51(1A) of the 1980 Act is amended to enable the Council to make a regulatory complaint to the Tribunal under section 51(1). New section 51A of the 1980 Act requires the Council to make rules as to the procedure for determining whether or not to make a regulatory complaint to the Tribunal. Before making any rules, the Council must consult the Tribunal, and the proposed rules must be approved by the Lord President in order to have effect.
306.New section 53ZD of the 1980 Act requires the Tribunal to determine a regulatory complaint made to it by the Council under section 51(1). Where the complaint is upheld, the Tribunal must censure the solicitor of the authorised legal business or licensed provider. The censure may be time-limited, and the Tribunal must give reasons for doing so. The Tribunal may also require the solicitor of the authorised legal business or licensed provider to undertake further education or training, impose a fine, impose conditions on the solicitor’s practising certificate (which may also be time-limited and the Council must give reasons for doing so), order that the recognition under section 34(1A) of the incorporated practice is revoked, order that the authorisation of a legal business is withdrawn or is subject to conditions, or impose any other sanction permitted by the regulatory scheme of the Council.
307.The amendments also provide for appeals to the Court of Session. New section 54B of the 1980 Act contains the right of appeal by an authorised legal business or licensed provider from a decision of the Tribunal to the Court of Session. And new section 55B contains the powers of the Court in these appeals. For example, the Court may confirm or quash a determination or decision. It may, among other things, impose a fine, order that the practising certificate of a solicitor is to be subject to conditions, order that the recognition under section 34(1A) of the incorporated practice is revoked, order that the authorisation of a legal business is withdrawn or is to be subject to conditions or impose any other sanction permitted by the regulatory scheme of the Council.
308.New section 62B of the 1980 Act enables the Scottish Ministers to make regulations to amend sections 42E, 53ZE, 54B and 55B to disapply those sections with respect to licensed providers (or reapply those sections if they have been previously disapplied). Such regulations are subject to the negative procedure.(8)
309.Schedule 4 of the 1980 Act is amended to allow the Tribunal to dismiss a regulatory complaint
	without requiring an authorised legal business to answer the allegations made against it or without holding an inquiry where the Tribunal is of the opinion that the complaint discloses no prima facie case of failure on the part of the authorised legal business to comply with the practice rules or the terms of its authorisation, or where the complainer fails to comply with any rule under section 52 of the 1980 Act, or
	without hearing parties if, after considering the complaint and other documents, the Tribunal forms the opinion that they disclose no case of failure on the part of the authorised legal business to comply with the practice rules or the terms of its authorisation.
310.Similar provision is provided with respect to a regulatory complaint made against a licensed provider.
Schedule 3 — Minor and Consequential Modifications of Enactments Regulatory complaints