Bankruptcy and Diligence etc. (Scotland) Act 2007

Part 3 S Enforcement

Scottish Civil Enforcement Commission S

50 Scottish Civil Enforcement Commission S

(1) There is established a body corporate to be known as the Scottish Civil Enforcement Commission (in this Act, the “Commission”) having the functions conferred on it by virtue of this Act and any other enactment.

(2) The Commission must, in the exercise of its functions, act—

(a) in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements; and

(b) in accordance with any directions given to it by the Scottish Ministers.

(3) In subsection (2)(a) above, “equal opportunities” and “equal opportunity requirements” have the same meanings as in Section L2 of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).

(4) The Scottish Ministers may, by regulations—

(a) confer functions on;

(b) remove functions from; or

(c) otherwise modify the functions of,

the Commission.

(5) Regulations made under subsection (4) above may—

(a) transfer a function to the Commission which is conferred on another person by virtue of any other enactment; and

(b) make such modifications to any other enactment which the Scottish Ministers consider necessary or expedient in consequence of transferring the function.

(6) The Advisory Council on Messengers-at-Arms and Sheriff Officers is abolished.

(7) Schedule 2 to this Act makes further provision about the Commission.

Commencement Information

I1 S. 50 partly in force; s. 50 not in force at Royal Assent see s. 227; s. 50(4)(5) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Valid from 31/01/2011

51 Information and annual report S

(1) The Commission must provide the Scottish Ministers with information relating to the exercise of the Commission's functions as the Scottish Ministers consider appropriate.

(2) The Commission must prepare a report on its activities during the whole of each financial year as soon as practicable after the end of the period to which the report relates.

(3) A report prepared under subsection (2) above—

(a) must include a statement of accounts, prepared in accordance with paragraph 33 of schedule 2 to this Act, for the period to which the report relates; and

(b) may include a statistical analysis of the performance by judicial officers of their functions and the undertaking by officers of activities during the period to which the report relates or any other period specified by the Commission in the report.

(4) The Commission may, in preparing the report under subsection (2) above, require a judicial officer to provide any information it considers necessary or proper for the purposes of preparing the report.

(5) The Commission must—

(a) send a copy of each report prepared under subsection (2) above to the Scottish Ministers; and

(b) publish the report.

(6) The Scottish Ministers must lay a copy of a report sent to them under subsection (5)(a) above before the Scottish Parliament.

Prospective

F1 52 Publication of guidance and other information S

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Textual Amendments

F1 S. 52 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Valid from 31/01/2011

53 Published information not to enable identification S

Information—

(a) contained in a report prepared under section 51(2); or

(b) published under section 52(1) or 56(1),

of this Act must not be in a form which identifies or enables the identification of judicial officers or persons against whom diligence has been executed.

Prospective

F2 54 Register of judicial officers S

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Textual Amendments

F2 Ss. 54-60 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

F2 55 Code of practice S

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Textual Amendments

F2 Ss. 54-60 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

F2 56 Publication of information relating to informal debt collection S

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Textual Amendments

F2 Ss. 54-60 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Judicial officers S

Prospective

F2 57 Judicial officers S

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Textual Amendments

F2 Ss. 54-60 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

58 Appointment of judicial officer S

(1) Where the Commission is satisfied—

(a) that a person who applies to it is a fit and proper person to be appointed as a judicial officer; and

(b) having regard to—

(i) the number of persons already holding commission as officers; and

(ii) any other matters the Commission considers relevant,

that the appointment is appropriate,

the Commission must, subject to section 63(3) of this Act, recommend that the Lord President of the Court of Session grants that person a commission as an officer.

(2) The Commission must send a copy of its decision on an application for a commission as a judicial officer to the person who applied for the commission.

(3) Where the Lord President grants a person a commission as a judicial officer under section 57(2) of this Act, the Commission must issue an official identity card, in a form determined by the Commission, to the officer.

(4) A judicial officer carrying out an officer's functions must, on being requested to do so, exhibit the official identity card issued under subsection (3) above.

(5) The Commission may make rules about—

(a) the procedure for applications for a commission as a judicial officer;

(b) the qualifications that a person must have before that person may be granted a commission under section 57(2) of this Act;

(c) the examinations that a person may be required to undertake in pursuance of a qualification prescribed by rules made under paragraph (b) above;

(d) the training that a person must undertake before that person may be granted a commission; and

(e) any other matters in relation to applications as it considers appropriate.

Commencement Information

I2 S. 58 partly in force; s. 58 not in force at Royal Assent see s. 227; s. 58(5)(c) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

F2 59 Annual fee S

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Textual Amendments

F2 Ss. 54-60 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

Abolition of offices of messenger-at-arms and sheriff officer S

F2 60 Abolition of offices of messenger-at-arms and sheriff officer S

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Textual Amendments

F2 Ss. 54-60 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Regulation of judicial officers S

61 Regulation of judicial officers S

(1) The Scottish Ministers may, by regulations—

(a) confer functions on;

(b) remove functions from; or

(c) otherwise modify the functions of,

judicial officers.

(2) The Scottish Ministers may, by regulations—

(a) prescribe the types of business association which judicial officers may form in order to carry out their functions;

(b) make provision about the ownership, membership, management and control of those business associations;

(c) prescribe conditions which must be satisfied by those business associations;

(d) make provision regulating the fees and charges which may be levied by an officer in the performance of the officer's functions.

(3) Before making regulations under subsection (1) or (2) above, the Scottish Ministers must consult the Commission.

(4) The Commission may make rules—

(a) regulating, without prejudice to sections 67 to 73 of this Act, the conduct of judicial officers;

(b) prohibiting the undertaking by officers of activities which appear to the Commission to be incompatible with their functions;

(c) permitting, subject to any conditions the Commission provides for in the rules, the undertaking by officers for remuneration of activities, not appearing to the Commission to be incompatible with their functions;

(d) which make provision—

(i) about the accounts and finances of officers, including the keeping and auditing of officers' accounts;

(ii) for the keeping of records by officers and the inspection of those records; and

(iii) about the finding of caution by officers; and

(e) regulating other matters in relation to officers that the Commission considers appropriate.

(5) A judicial officer must not undertake any activity which is not connected with the officer's functions for remuneration unless the officer obtains the permission of the Commission.

(6) The Commission must not withhold permission under subsection (5) above unless it appears to the Commission that the undertaking by the judicial officer of the activity would be incompatible with the officer's functions.

(7) The Commission may—

(a) attach conditions to; or

(b) revoke,

any permission granted under subsection (5) above.

Commencement Information

I3 S. 61 not in force at Royal Assent see s. 227; s. 61(1)(2)(3) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Valid from 01/04/2011

62 Duty to notify Commission of bankruptcy etc. S

(1) Where, in relation to a judicial officer, any of the events mentioned in subsection (2) below occurs, the officer must, before the expiry of the period of 28 days beginning with the occurrence of the event, notify the Commission in writing of it.

(2) The events referred to in subsection (1) above are—

(a) the sequestration of the judicial officer;

(b) the granting by the officer of a trust deed for creditors;

(c) the making of a bankruptcy restrictions order in respect of the officer;

(d) the acceptance by the Accountant in Bankruptcy of a bankruptcy restrictions undertaking made by the officer;

(e) the making, under the Company Directors Disqualification Act 1986 (c. 46), of a disqualification order against the officer;

(f) where the officer is a partner in a partnership the sole or main business of which is the provision of judicial officer services—

(i) the granting by the partnership of a trust deed for creditors; or

(ii) the sequestration of the partnership;

(g) where the officer is a member in a limited liability partnership the sole or main business of which is the provision of judicial officer services, the commencement of the winding up of that partnership on the ground of insolvency.

(3) In subsection (2) above, “trust deed” has the meaning given by section 5(4A) of the 1985 Act.

Judicial officers' professional association S

63 Judicial officers' professional association S

(1) The Scottish Ministers, by regulations—

(a) must designate an association as the professional association for judicial officers; and

(b) may make provision in relation to the functions, constitution and procedures of the professional association.

(2) The Scottish Ministers may not make regulations under subsection (1) above without first consulting—

(a) the Commission;

(b) representatives of the professional association or, as the case may be, proposed professional association; and

(c) such other bodies or persons who appear to the Scottish Ministers to have an interest.

(3) A person may not hold a commission as a judicial officer unless that person is a member of the professional association.

Commencement Information

I4 S. 63 partly in force; s. 63 not in force at Royal Assent see s. 227; s. 63(1)(2) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115 , art. 3(4) , Sch. 3 (with arts. 4-6 , 10 )

Valid from 01/04/2011

64 Duty of professional association to forward complaints to Commission S

Where the professional association receives a complaint about a judicial officer or any services provided by the officer, the association must send details of the complaint and any material which accompanies it to the Commission.

Valid from 01/04/2011

65 Information from professional association S

The Commission may require the professional association to provide any information the Commission considers necessary or proper for the purposes of—

(a) any inspection under section 66 of this Act;

(b) any investigation under section 67 of this Act; or

(c) the consideration by the disciplinary committee of any matter under section 71 of this Act.

Valid from 31/01/2011

Investigation of judicial officers S

66 Inspection of judicial officer S

(1) The Commission may appoint a person to inspect the work or particular aspects of the work of a judicial officer.

(2) A person appointed under subsection (1) above must, if required to do so by the Commission, inquire into any activities undertaken for remuneration by the judicial officer.

(3) A person appointed under subsection (1) above must submit a report of the inspection and of any inquiry under subsection (2) above to the Commission.

(4) The Commission must pay a person appointed under subsection (1) above—

(a) a fee, unless the person is employed in the civil service and the person carries out the inspection in that person's capacity as a civil servant; and

(b) any outlays reasonably incurred by the person,

in connection with an inspection, inquiry and report under this section.

Prospective

F3 67 Investigation of alleged misconduct by judicial officer S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

F3 68 Suspension of judicial officer pending outcome of disciplinary or criminal proceedings S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

F3 69 Commission's duty in relation to offences or misconduct by judicial officer S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

F3 70 Commission's power in relation to judicial officer's bankruptcy etc. S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

Disciplinary proceedings S

F3 71 Referrals to the disciplinary committee S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

F3 72 Disciplinary committee's powers S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

F3 73 Orders under sections 68 and 72: supplementary provision S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Prospective

Appeals S

F3 74 Appeals from decisions under sections 58, 68 and 72 S

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Textual Amendments

F3 Ss. 67-74 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Miscellaneous S

75 Judicial officer's actions void where officer has interest S

(1) Anything done by a judicial officer in exercising or purporting to exercise a prescribed function in relation to a matter in which the officer has an interest is void.

(2) A judicial officer has an interest in a matter where the matter—

(a) is one in which the officer has an interest as an individual; or

(b) consists of or includes a debt in relation to which any of the circumstances mentioned in subsection (3) below apply.

(3) The circumstances referred to in subsection (2)(b) above are that the debt is due to or by—

(a) a business associate of the judicial officer;

(b) a member of the officer's family; or

(c) a company or firm, and the officer, a business associate of the officer or a member of the officer's family—

(i) is a director or partner of that company or firm;

(ii) holds, either alone or along with an other person, a controlling interest in that company or firm; or

(iii) has a pecuniary interest in that company or firm and the sole or main business of the company or firm is the purchase of debts for enforcement.

(4) Any reference in subsection (3) above to—

(a) a business associate of a judicial officer is to be construed as a reference to a co-director, partner, employer, employee, agent or principal of the officer;

(b) a controlling interest in a company is to be construed as a reference to an interest giving a person control of a company within the meaning of section 840 of the Income and Corporation Taxes Act 1988 (c. 1) (meaning of “control”).

(5) Any reference in subsection (3) above to a member of a judicial officer's family is to be construed as a reference to—

(a) the spouse of the officer;

(b) a person living together with the officer as husband and wife;

(c) a civil partner of the officer;

(d) a person living with the officer in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the officer are of the same sex;

(e) a parent of the officer;

(f) a brother or sister of the officer;

(g) a child of the officer, including—

(i) a stepchild; and

(ii) any child brought up or treated by the officer or any person mentioned in paragraph (b), (c) or (d) above as a child of the officer or, as the case may be, of that person;

(h) a grandchild of the officer,

and any relationships of the half blood or by affinity are to be construed as relationships of the full blood.

(6) In subsection (4)(a) above, “principal” does not include a principal in a contract for the carrying out by the judicial officer of the prescribed function in relation to the debt concerned.

(7) In subsections (1) and (6) above, “prescribed function” means any function conferred on a judicial officer by virtue of this Act or any other enactment which the Scottish Ministers by regulations specify for the purposes of this section.

Commencement Information

I5 S. 75 partly in force; s. 75 not in force at Royal Assent see s. 227; s. 75(7) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

F4 76 Measure of damages payable by judicial officer for negligence or other fault S

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Textual Amendments

F4 S. 76 repealed (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 Pt. 2; S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Valid from 31/01/2011

77 Effect of code of practice S

(1) A judicial officer must, in exercising the officer's functions or undertaking any activities, have regard to the provisions (so far as they are applicable) of any code of practice published under section 55 or 56 of this Act.

(2) A failure on the part of a judicial officer to comply with any provision of a code of practice does not of itself render the officer liable to any criminal or civil proceedings.

(3) A code of practice is admissible in evidence in any criminal or civil proceedings.

(4) If any provision of a code of practice appears to—

(a) the court or tribunal conducting any civil or criminal proceedings; or

(b) the disciplinary committee holding a hearing under section 71 of this Act,

to be relevant to any question arising in the proceedings, that provision of the code may be taken into account in determining that question.

Valid from 31/01/2011

78 Electronic publications and communications S

In this Part—

(a) references to “publishing” include publishing by electronic means and cognate expressions are to be construed accordingly; and

(b) any reference to a notification, admission or representation being in writing includes a reference to that notification, admission or representation being an electronic communication.