Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 in England
1990 c. 40 · Enacted 1 November 1990 · Extends to United Kingdom
Contents
- 4Duty to keep accounting records. Repealed
- 5Annual accounts and report. Repealed
- 6Powers of Lord Advocate to investigate charities and to suspend trustees. Repealed
- 7Powers of Court of Session to deal with management of charities. Repealed
- 11Expenditure of capital.
- Dormant charities
- 13Appointment of trustees. Repealed
- 14Alteration of purposes and winding-up of charitable companies. Repealed
- Interpretation
- 20ZARemission of complaint by Tribunal to Council
- 20ZCUnsatisfactory professional conduct: Council's powers to monitor compliance with direction under section 20ZB(4)
- 20ZDReport by Commission to Council under section 10(2)(e) of the 2007 Act: Council's powers
- 20ZEDirection under section 20ZD(1): appeal by practitioner
- 20BUnsatisfactory professional conduct: powers of Tribunal on appeal
- 20CUnsatisfactory professional conduct: enforcement of Council direction
- 20DUnsatisfactory professional conduct: appeal from decisions of Tribunal
- 20EUnsatisfactory professional conduct: powers of court on appeal
- 27Exercise of rights to conduct litigation and rights of audience.
- 28Surrender of rights to conduct litigation and rights of audience.
- 29Revocation of rights granted under section 26.
- Rules of conduct
- Multi-national practices
- 32Multi-national practices.
- Complaints in relation to legal services
- Solicitors’ and counsel’s fees
- 37Admission of solicitors and notaries public.
- 38Availability of legal aid in relation to services provided under this Act.
- 39Removal of certain restrictions on the borrowing of the court process.
- 41BAltering, etc. documents required to be produced under section 41
- 43Functions of Director in relation to certain rules made under the 1980 Act.
- ...Section ... Repealed
- Part IV: Miscellaneous Reforms
- 63Registration and enforcement of external confiscation orders.
- 64Matrimonial interdicts.
- 65Homelessness.
- 67Further provision as to discharge of judicial factors.
- 70Blood and other samples in civil proceedings.
- 74Amendments and repeals.
- Schedule 1: Scottish Conveyancing and Executry Services Board
- Part I: Constitution, Duties, Powers and Status Repealed
- Parliamentary disqualification Repealed
- 17Paragraph 17 Repealed
- 18Paragraph 18 Repealed
- 19Paragraph 19 Repealed
- 20Paragraph 20 Repealed
- 1Paragraph 1
- 2Paragraph 2
- 3Paragraph 3
- 4Paragraph 4
- Schedule 3: Scottish Legal Services Ombudsman
- ...Paragraph ... Repealed
- Part ...
- Chapter
- Paragraph Repealed
- Schedule 8: Amendment of Enactments
- ..Paragraph .. Repealed
- Part II: Miscellaneous
- 19Paragraph 19
- 20Paragraph 20
- 22Paragraph 22
- 23Paragraph 23
- 24Paragraph 24
- 25Paragraph 25
- 26Paragraph 26
- 28Paragraph 28
- 30Paragraph 30
- 31Paragraph 31
- 32Paragraph 32
- The Companies Act 1985 (c. 6)
- 34Paragraph 34
- 35Paragraph 35
- 36Paragraph 36
- The Criminal Justice (Scotland) Act 1987 (c. 41)
- 38Paragraph 38
- Schedule 9Repeals
4Duty to keep accounting records.F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5Annual accounts and report.F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6Powers of Lord Advocate to investigate charities and to suspend trustees.F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7Powers of Court of Session to deal with management of charities.F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11Expenditure of capital.
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—
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,
they may, subject to subsection (3) below, proceed with the expenditure of capital.
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.
13Appointment of trustees.F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14Alteration of purposes and winding-up of charitable companies.F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20ZARemission of complaint by Tribunal to CouncilF1
Where, after holding an inquiry under section 20(2A) into a complaint of professional misconduct against a practitioner, the Tribunal—
are not satisfied that he has been guilty of professional misconduct;
consider that he may be guilty of unsatisfactory professional conduct,
they must remit the complaint to the Council.
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).
20ZCUnsatisfactory professional conduct: Council's powers to monitor compliance with direction under section 20ZB(4)F1
The Council shall, by notice in writing, require every practitioner who is specified in—
a direction made under section 20ZB(4); or
such a direction as confirmed or varied on appeal by—
the Tribunal; or
the court,
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 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.
20ZDReport by Commission to Council under section 10(2)(e) of the 2007 Act: Council's powersF1
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.
20ZEDirection under section 20ZD(1): appeal by practitionerF1
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.
20BUnsatisfactory professional conduct: powers of Tribunal on appealF1
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.
20CUnsatisfactory professional conduct: enforcement of Council directionF1
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.
20DUnsatisfactory professional conduct: appeal from decisions of TribunalF1
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.
20EUnsatisfactory professional conduct: powers of court on appealF1
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.
27Exercise of rights to conduct litigation and rights of audience.F1I1
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—
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,
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.
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—
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,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
For the purposes of section 25, section 26 and this section—
“right of audience” includes, in relation to any court, any such right exercisable by an advocate; and“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.
28Surrender of rights to conduct litigation and rights of audience.F1I1
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.
29Revocation of rights granted under section 26.F1I1
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.
32Multi-national practices.I1I2
Before section 61 of the 1980 Act there shall be inserted the following section—
“ Multi-national practices.
60A(1)Subject to the provisions of this section, solicitors and incorporated practices may enter into multi-national practices with registered foreign lawyers.
(2)The Council shall maintain a register of foreign lawyers, and may make rules with regard to registration; and, without prejudice to the generality of the foregoing, such rules may include provision as to—
(a)the manner in which applications for registration are to be made;
(b)the fees payable in respect of such applications;
(c)conditions which may be imposed in respect of registration; and
(d)the period for which any such registration is to run.
(3)Section 34(2) and (3) apply to rules made under subsection (2) as they apply to rules made under that section.
(4)Any foreign lawyer may apply to the Council to be registered as such for the purposes of this section and the Council shall, if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for him to be allowed to enter into a multi-national practice with solicitors or incorporated practices, enter his name on the register.
(5)Subject to subsection (6), the Secretary of State may by order made by statutory instrument provide that any enactment or instrument—
(a)passed or made before the commencement of this section;
(b)having effect in relation to solicitors; and
(c)specified in the order,
shall have effect with respect to registered foreign lawyers as it has effect with respect to solicitors.
(6)Before making any order under subsection (5), the Secretary of State shall consult the Council.
(7)An order under subsection (5) may provide for an enactment or instrument to have effect with respect to registered foreign lawyers subject to such additions, omissions or other modifications as the Secretary of State specifies in the order.
(8)No order shall be made under subsection (5) unless a draft of the order has been approved by both Houses of Parliament.”
37Admission of solicitors and notaries public.I1
For subsection (2) of section 6 of the 1980 Act (admission of persons as solicitors) there shall be substituted the following subsection—
“(2)Where—
(a)a person has complied with the requirements of subsection (1); but
(b)the Council have not lodged a petition for his admission as a solicitor within one month of his having so complied,
he may apply by petition to the court for admission as a solicitor; and if he produces the certificate mentioned in paragraph (b) of subsection (1) the court shall make an order admitting him as a solicitor.”.
Section 57 of that Act (admission of notaries public) shall be amended as follows—
for subsection (1) there shall be substituted—
“(1)The offices and functions of—
(a)the clerk to the admission of notaries public; and
(b)the keeper of the register of notaries public,
are hereby transferred to the Council.”;
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—
“(2A)A petition by the Council under section 6(3A) for the admission of a person as a solicitor may, if the person so requests, include an application for the person’s admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.
(2B)A petition by a person under section 6(2)for his admission as a solicitor may include an application for his admission as a notary public; and an order on any such petition admitting that person as a solicitor may admit him as a notary public and direct the Council to register him in the register of notaries public.”;
in subsection (4) for the word “solicitor” there shall be substituted “ person” ”; and
for subsection (5) there shall be substituted—
“(5)The Council may charge such reasonable fees as they consider appropriate in respect of the admission of any person as a notary public.”.
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—
“(3)Where a person who is both a solicitor and a notary public is suspended from practising as a solicitor under this Act the Council shall forthwith remove the person’s name from the register of notaries public.
(4)If the suspension of such a person as is mentioned in subsection (3) is terminated or otherwise comes to an end the Council shall restore the person’s name to the register.”.
38Availability of legal aid in relation to services provided under this Act.I1
After section 43 of the M1Legal Aid (Scotland) Act 1986 there shall be inserted the following section—
“ Application of Act to services provided under Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
43A(1)Advice and assistance shall be available, in accordance with the provisions of this Act, in relation to the provision of executry services by executry practitioners and recognised financial institutions and conveyancing services by independent qualified conveyancers, all within the meaning of section 23 (interpretation of sections 16 to 22) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 as they are so available in relation to the provision of the like services by solicitors.
(2)Subject to any act of sederunt or act of adjournal made under subsection (7) of section 26 of that Act (consideration of applications made under section 25) advice and assistance, civil legal aid and criminal legal aid shall be available, in accordance with the provisions of this Act, in relation to the provision of services by persons who have acquired rights to conduct litigation or, as the case may be, rights of audience by virtue of that section as they are so available in relation to the provision of the like services by solicitors and, where appropriate, by advocates.
(3)Where advice and assistance, civil legal aid or criminal legal aid has been made available by virtue of this section, the provisions of this Act shall apply in relation to the person providing those services as they apply in relation to a solicitor or advocate providing like services.”.
39Removal of certain restrictions on the borrowing of the court process.I1
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.
41BAltering, etc. documents required to be produced under section 41F1
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.
43Functions of Director in relation to certain rules made under the 1980 Act.I1
After section 64 of the 1980 Act there shall be inserted the following sections—
“ Advisory and supervisory functions of the Director General of Fair Trading.
64A(1)Before considering any rule—
(a)made under section 25A(4)
or (5); or
(b)such as is mentioned in section 34(3A),
the Secretary of State shall send a copy of the proposed rule in question to the Director.
(2)The Director shall consider whether the rule in question would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.
(3)When the Director has completed his consideration he shall give such advice to the Secretary of State as he thinks fit.
(4)The Director may publish any advice given by him under subsection (3).
(5)The Director shall, so far as practicable, exclude from anything published under subsection (4) any matter—
(a)which relates to the affairs of a particular person; and
(b)the publication of which would, or might in the Director’s opinion, seriously and prejudicially affect the interests of that person.
(6)For the purposes of the law of defamation, the publication of any advice or report by the Director under this section shall be absolutely privileged.
Duty of Secretary of State.
64BWhen he has received advice under section 64A(3) in relation to a rule made under section 25A(4) or (5) or such as is mentioned in section 34(3A), the Secretary of State may, having considered—
(a)that advice;
(b)whether the interests of justice require that there should be such a rule; and
(c)in relation to a rule made under section 25A(5), any relevant practice obtaining in the sheriff court,
approve or refuse to approve the rule.
Investigatory powers of the Director.
64C(1)For the purpose of investigating any matter under section 64A, the Director may by notice in writing—
(a)require any person to produce to him or to any person appointed by him for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—
(i)are in that person’s custody or under that person’s control; and
(ii)relate to any matter relevant to the investigation; or
(b)require any person carrying on any business to furnish to him (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.
(2)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.
(3)Subsections (5) to (8) of section 85 of the Fair Trading Act 1973 shall apply in relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section.
Review of rules approved by the Secretary of State.
64D(1)Without prejudice to the power of the Council to review any rule made by them, where the Secretary of State has approved a rule under section 64B he may, and if so requested by the Lord President shall, require the Council to review its terms.
(2)When they have reviewed a rule following a requirement made under subsection (1), the Council may revise the rule in the light of that review, and shall then submit the rule as revised or, if they have not revised it, as previously approved to the Lord President and the Secretary of State.
(3)Where the Lord President and the Secretary of State are agreed that the terms of the rule as submitted to them are satisfactory, the Secretary of State shall approve the rule, and may direct the Council to bring it into force as soon as is practicable.
(4)Where either the Secretary of State or the Lord President is of the view that any rule, as submitted to them, is not satisfactory, but they do not agree as to what the terms of the rule should be, the rule shall continue to have effect as previously approved.
(5)Where the Secretary of State and the Lord President agree both that any rule submitted to them under subsection (2) is not satisfactory, and as to what the terms of the rule should be, the Secretary of State may direct the Council—
(a)to amend the rule in such manner as he and the Lord President consider appropriate; and
(b)to bring the rule, as so amended, into force as soon as is practicable.
(6)The provisions of sections 64A and 64B apply to rules submitted to the Secretary of State under this section as they apply to rules submitted to him under sections 25A(9) or (10) and 34(3A).”.
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63Registration and enforcement of external confiscation orders.
The following sections shall be substituted for section 30 of the M1Criminal Justice (Scotland) Act 1987—
“ Enforcement of other external orders.
30(1)Her Majesty may by Order in Council—
(a)direct in relation to a country or territory outside the United Kingdom designated by the order (“a designated country”) that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;
(b)make—
(i)such provision in connection with the taking of action in the designated country with a view to satisfying a confiscation order; and
(ii)such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act; and
(iii)such incidental, consequential and transitional provision,
as appears to Her Majesty to be expedient; and
(c)without prejudice to the generality of this subsection, direct that in such circumstances as may be specified proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified.
(2)In this Part of this Act—
“external confiscation order” means an order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value; and
“modifications” includes additions, alterations and omissions.
(3)An Order in Council under this section may make different provision for different cases or classes of case.
(4)The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion.
(5)An Order in Council under this section shall not be made unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament.
Registration of external confiscation orders.
30A(1)On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—
(a)it is satisfied that at the time of registration the order is in force and not subject to appeal;
(b)it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and
(c)it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.
(2)In subsection (1) above “appeal” includes—
(a)any proceedings by way of discharging or setting aside a judgment; and
(b)an application for a new trial or a stay of execution.
(3)The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.”
64Matrimonial interdicts.
In section 15 of the M1Matrimonial 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 ”.
65Homelessness.
Section 24 of the M1Housing (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—
“(2A)A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
(2B)Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the local authority to whom he has applied for accommodation or for assistance in obtaining accommodation.”
In subsection (3), after paragraph (b) there shall be inserted—
“(bb)it is probable that occupation of it will lead to—
(i)violence; or
(ii)threats of violence which are likely to be carried out,
from some other person who previously resided with that person, whether in that accommodation or elsewhere, or”.
67Further provision as to discharge of judicial factors.
After section 34 (discharge of factors, tutors and curators) of the M1Judicial Factors Act 1849 there shall be inserted the following section—
“ Further provision as to discharge of factors, tutors and curators.
34AThe Court may by act of sederunt make provision for the discharge of factors, tutors and curators by means other than the presentation of a petition under section 34 of this Act where the factory, tutory or curatory is terminated by reason of the recovery, death or coming of age of the ward, or by reason of the exhaustion of the estate.”.
70Blood and other samples in civil proceedings.
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—
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,
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.
In section 6 of the M1Law 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.
74Amendments and repeals.I1
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.
17F1
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19F1
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20F1
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1I1F1
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.
2I1F1
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.
3I1F1
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.
4I1F1
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.
...F1
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19
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.
20
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 ”.
22I1
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 ”.
23
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, ”.
24
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)—
for the word “oath” in the first place where it occurs there shall be substituted “ declaration ”; and
for the words “shall take the oath of the applicant thereto” there shall be substituted “ on the inventory and declaration being signed by the applicant ”.
In Schedule A to that Act (form of inventory etc)—
for the word “oath” in both places where it occurs there shall be substituted “ declaration ”;
for the words from “in presence of” to “depones” there shall be substituted “ [name and address of applicant] (hereinafter referred to “the applicant”) hereby declares ”;
for the words “deponent” wherever it occurs and “deponent’s” there shall be substituted respectively “ applicant ” and “ applicant’s ”; and
the words from “All which” to the end shall cease to have effect.
In Schedule B to that Act (form of confirmation)—
for the word “oath” in both places where it occurs there shall be substituted “ declaration ”; and
for the word “deponed” there shall be substituted “ declared ”.
25
In section 3 of the Small Testate Estates (Scotland) Act 1876 (simplified procedure for confirmation to small estates)—
for the word “oath” there shall be substituted “ declaration ”; and
for the words “being duly sworn to” there shall be substituted “ and declaration being duly signed ”.
In Schedule A to that Act (form of inventory etc)—
for the word “oath” in both places where it occurs there shall be substituted “ declaration ”;
for the words from “In presence of” to “depones” there shall be substituted “ [name and address of applicant] (hereinafter referred to “the applicant”) hereby declares ”;
for the word “deponent” wherever it occurs there shall be substituted “ applicant ”; and
the words from “All which” to the end shall cease to have effect.
In Schedule B to that Act (form of confirmation), for the word “oath” there shall be substituted “ declaration ”.
26
For subsection (1) of section 33 (Sheriff Court Rules Council) of the Sheriff Courts (Scotland) Act 1971 there shall be substituted the following subsection—
“(1)There shall be established a body (to be known as the Sheriff Court Rules Council, and hereafter in this section and section 34 called “the Council”) which shall have the functions conferred on it by section 34, and which shall consist of—
(a)two sheriffs principal, three sheriffs, one advocate, five solicitors and two whole-time sheriff clerks, all appointed by the Lord President of the Court of Session, after consultation with such persons as appear to him to be appropriate;
(b)two persons appointed by the Lord President after consultation with the Secretary of State, being persons appearing to the Lord President to have—
(i)a knowledge of the working procedures and practices of the civil courts;
(ii)a knowledge of consumer affairs; and
(iii)an awareness of the interests of litigants in the civil courts; and
(c)one person appointed by the Secretary of State, being a person appearing to the Secretary of State to be qualified for such appointment.”
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 ”.
28
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—
“(3)The evidence of one witness shall, for the purposes of subsection (2) above, be sufficient evidence.”.
30
For section 76 of the Criminal Justice (Scotland) Act 1980 (presumption as to the contents of containers) there shall be substituted the following section—
“ Presumption as to contents of container.
76Section 127 of the Licensing (Scotland) Act 1976 shall apply for the purposes of any trial in connection with an alleged contravention of any provision of this Part of this Act as it applies for the purposes of any trial in connection with an alleged contravention of any provision of that Act.”
Nothing in this paragraph shall apply to the prosecution of any person for an offence committed before the commencement of this paragraph.
31
In section 6(3)(e) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (occupancy rights after dealing with third parties)—
the words “, at or before the time of the dealing,” shall cease to have effect; and
in sub-paragraph (i)—
after the word “not” there shall be inserted “ or were not at the time of the dealing ”; and
after the word “has” there shall be inserted “ or had ”.
In section 8 of that Act (interests of heritable creditors)—
in subsection (2), the words “before the granting of the loan” shall cease to have effect; and
in subsection (2A)—
the words “at or before the granting of the security” shall cease to have effect;
after the word “not” in paragraph (a) there shall be inserted “ or were not at the time of the granting of the security ”; and
after the word “has” in paragraph (a) there shall be inserted “ or had ”.
32
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.
34
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—
“(aa)an order for the transfer of property to him by the other party to the marriage;”.
35
Section 53(3) of the Insolvency Act 1986 (execution of instrument appointing receiver) shall cease to have effect.
36I1
In subsection (3) of section 4 (Scottish Legal Aid Fund) of the Legal Aid (Scotland) Act 1986—
paragraph (a) shall cease to have effect; and
in paragraph (c), after the word “property” there shall be inserted “ (including money) ”.
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—
“(4)Where—
(a)the Board has refused an application for civil legal aid by a person who has applied for such aid for the purpose of raising an action against the Board; and
(b)the applicant has applied to the Board for a review of his application,
the Board shall, unless they decide to grant the application forthwith, refer the application, together with all relevant precognitions, statements and other papers, including any observations they wish to make on the application, to the sheriff for Lothian and Borders at Edinburgh.
(5)Subject to section 15 of this Act, and to subsection (2) above, where the sheriff decides—
(a)that the applicant has aprobabilis causa litigandi; and
(b)that it is reasonable in the particular circumstances of the case that he should receive legal aid,
he shall so inform the Board, and the Board shall make civil legal aid available to the applicant.
(6)A decision made by the sheriff under subsection (5) above shall be final.”
After subsection (2) of section 17 (contributions and payments out of property received) of that Act, there shall be inserted the following subsections—
“(2A)Except in so far as regulations made under this section otherwise provide, any sum of money recovered under an award of or an agreement as to expenses in favour of any party in any proceedings in respect of which he is or has been in receipt of civil legal aid shall be paid to the Board.
(2B)Except in so far as regulations made under this section otherwise provide, where, in any proceedings, there is a net liability of the Fund on the account of any party, the amount of that liability shall be paid to the Board by that party, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him—
(a)in the proceedings; or
(b)under any settlement to avoid them or to bring them to an end.”.
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—
“(11)Nothing in subsection (9)(b) above shall enable the Secretary of State to make regulations authorising the granting of legal aid only to solicitors holding rights of audience under section 25A (rights of audience) of the Solicitors (Scotland) Act 1980.”.
In subsection (3) of section 33 (fees and outlays of counsel and solicitors) of that Act—
in paragraph (c) the words “and taxation” and “or taxation”; and
in paragraph (d) the word “, taxation”,
shall cease to have effect.
38
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—
“ Right of audience of solicitor before the court.
48(1)Any solicitor who has, by virtue of section 25A (rights of audience) of the Solicitors (Scotland) Act 1980 a right of audience in relation to the Court of Session shall have the same right of audience in that court as is enjoyed by an advocate.
(2)Any solicitor shall have a right of audience—
(a)before the vacation judge; and
(b)in such other circumstances as may be prescribed.
Further provision as to rights of audience.
48AAny person who has complied with the terms of a scheme approved under section 26 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (consideration of applications made under section 25) shall have such rights of audience before the court as may be specified in an act of sederunt made under subsection (7)(a) of that section.”.
Schedule 9RepealsE1I1
| 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. |