Journal Online

Article

14 November 05

A favoured model?

by David McLaughlin

The wide-ranging powers of the proposed Commission to regulate officers of court indicate the Scottish Executive's preferred approach to regulation

A little over four years ago the Scottish Parliament instigated a major inquiry into the regulation of the legal profession in Scotland. This included extensive consultation on reform of the law of diligence and the enforcement of civil obligations. As a result the detail of a revised regulatory framework for sheriff officers and messengers-at-arms is beginning to emerge.

The proposed framework, set out in the draft Bankruptcy and Diligence (Scotland) Bill, marks a radical departure from the existing arrangements, which most practitioners consider to have been a very effective and efficient way of controlling the conduct and development of the sheriff officer and messenger-at-arms profession. Before addressing the main regulatory reforms, it is worth noting that the offices of messenger-at-arms and sheriff officer are to be abolished under the proposals and merged into a single office known for the moment as messenger-of-court. The name is still under discussion, and it is to be hoped that the title ultimately agreed on will have less of a courier or postman connotation and be more reflective of the role played by the officer within the Scottish legal system.

Introducing the Commission

The most fundamental reform proposed is the creation of a new statutory body, to be known as the Scottish Civil Enforcement Commission (“the Commission”). The Commission will take over the functions of the Court of Session in relation to the regulation, conduct and procedures of officers as set out in section 75 of the Debtors (Scotland) Act 1987 and the functions presently undertaken by the Society of Messengers-at-Arms and Sheriff Officers in relation to examinations. The Commission itself has a predetermined makeup in the current published draft and will consist of the following ministerial appointments – a Senator of the College of Justice, a sheriff principal or sheriff, an advocate or solicitor, an officer of court, the Lord Lyon King of Arms and three other persons who do not hold an office or the qualifications of those previously mentioned. Members of the Commission will be remunerated and recompensed as determined by the Scottish Ministers. The Commission must appoint a chief executive officer responsible to the Commission for the general exercise of its function, and may appoint such staff as it considers necessary for the performance of its function. The Commission will decide on the remuneration of the CEO and other employees.

Extensive powers

The authority and powers proposed for the Commission are extensive and potentially far-reaching. It will be the primary body responsible for maintaining a register of officers, developing and publishing a code of practice, developing, administering and overseeing the rules governing the appointment, examination and training of officers, and for making rules to control the conduct of officers, the business activities they undertake and the financial and non-financial accounting records they maintain. The commission will have the authority to inspect the work undertaken by officers, investigate complaints and make referrals to a disciplinary committee.

In addition to its principal responsibilities, the Commission is to be given powers to educate the public and publish information on matters such as the function of the Commission and officers of court and the law and procedures relating to diligence. It has been suggested that the Commission may have a role to play in introducing good practice to informal debt collection. That could ultimately bring individuals and organisations outwith the current officer profession into the scope of the Commission. Any role for the Commission in this area will no doubt be clarified in time and may simply evolve into an information or advisory function without any regulatory power in the wider debt collection community.

An approach in favour

The Scottish Civil Enforcement Commission is an interesting development in the regulation and control of part of the Scottish legal profession and one which could find wider application. It is an approach to regulation which has clearly found favour with the Scottish Ministers and one which it is believed will better safeguard the public interest and make officers of court more directly accountable for their actions. Some might argue that the proposed regulatory reforms go too far. It is indisputable that the officer of court performs a highly responsible function and one which requires to be regulated and controlled. There are, however, significantly under 200 individuals in Scotland who currently hold a commission to operate as an officer of court and even fewer who operate their commissions on a daily basis at the sharp end. Against this background, the reforms may appear somewhat expensive and unnecessary.

That said, the proposed reforms are now published in draft and as the regulations and rules develop in the coming months, we will be able to form a clearer picture of how this new administration will operate in practice and through time assess its impact on the profession.

David McLaughlin is Managing Partner of Scott & Co, Messengers-at-Arms and Sheriff Officers