Commentary on Sections General
9.Section 1 inserts a new section 3A into the 1980 Act which makes provision for the discharge of the functions of the Council.
10.Subsection (1) of the new section 3A enables the Council to delegate any of their functions to any committee or sub-committee of the Council or to any individual.
11.There are, however, certain functions which cannot be delegated. These are called “excepted functions” and are defined in subsection (10) of the new section 3A. The excepted functions are essentially the legislative functions of the Council under the 1980 Act. They consist of any power of the Council to make rules or regulations under that Act and the power under paragraph 2 of Schedule 1 to that Act to prepare a scheme for the constitution of the Council.
12.Where any function has been delegated to a committee, subsection (2) of the new section 3A enables that committee to sub-delegate that function to a sub-committee of that committee or to an individual. Similarly, where any function has been delegated to a sub-committee, subsection (3) of the new section enables that sub-committee to sub-delegate that function to an individual. These powers of sub-delegation can only be exercised with the approval of the Council.
13.Subsection (4) of the new section 3A makes it clear that, when exercising their powers of delegation or sub-delegation, the Council, committee or sub-committee may impose restrictions or conditions upon the body or person to whom the function is delegated. This will enable them, for example, to impose conditions as to how the function should be exercised or as to when they should be consulted or their approval sought.
14.The functions of the Council may be delegated or sub-delegated to an individual who may be, but need not be, a member of the staff of the Society.
15.Subsection (5) of the new section 3A prevents the Council, a committee or a sub-committee from delegating certain functions to an individual. The functions in question are those concerned with upholding or dismissing complaints about inadequate professional services in section 42A(1) and (2) of the 1980 Act or complaints under section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40) that a solicitor has been guilty of professional misconduct or provided inadequate professional services and complaints against conveyancing practitioners and executry practitioners under the 1990 Act.