Background
Sections 25-29 were among the most controversial provisions in the Law Reform Bill, which became the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. To secure their passage, Ministers at the time gave undertakings that the provisions would not be implemented until other reforms contained in the 1990 Act, such as the introduction of solicitor advocates, had had time to bed down. Under equivalent provisions in the Courts and Legal Services Act 1990, rights of audience and rights to conduct litigation have been available in England & Wales since the 1990s - however, few bodies have made successful applications. Commencement in Scotland was considered by successive administrations at various points in the mid-late nineties, but was not taken forward. The power to commence these sections was devolved to Scottish Ministers on 1 July 1999.
In 2003 Ministers referred the matter to the Working Group on Research into the Legal Services Markets in Scotland. The majority of the Group were in favour of commencement and in October 2005 the Minister for Justice and the Lord President both agreed in principle to the commencement of these sections. However, a defect was identified in the statutory provisions, which required to be corrected by primary legislation before any scheme for rights to conduct litigation could be approved. Section 32 of the Solicitors (Scotland) Act 1980 makes it an offence for any unqualified person to draw or prepare any writ relating to any action or proceedings in any court. This offence was not however disapplied by the 1990 Act in relation rights to conduct litigation. Therefore a member of a body who sought to exercise such rights in good faith would be guilty of an offence.
The defect was ultimately corrected by primary legislation - section 61 of the Legal Profession and Legal Aid (Scotland) Act 2007, which gained Royal Assent on 19 January 2007. Ministers decided it would be helpful to potential applicants to have developed guidance in place at the time of commencement.