Bankruptcy and Diligence etc. (Scotland) Act 2007

Part 3S[F1Officers of court]

Scottish Civil Enforcement CommissionS

F250Scottish Civil Enforcement CommissionS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F3Advisory Council on Messengers-at-Arms and Sheriff Officers]S

51[F4Advisory Council's] annual reportS

F5(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)[F6The Advisory Council on Messengers-at-Arms and Sheriff Officers (the “Advisory Council”)] 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—

F7(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)may include a statistical analysis of the performance by [F8officers of court] 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 [F9Advisory Council] in the report.

(4)The [F10Advisory Council] may, in preparing the report under subsection (2) above, require [F11the professional association designated by regulations under section 63(1)(a)] to provide any information [F12provided by virtue of regulations under section 63(1A) which the Advisory Council] considers necessary or proper for the purposes of preparing the report.

(5)The [F13Advisory Council] must—

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

(b)publish the report.

F14(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

53Published information not to enable identificationS

Information—

(a)contained in a report prepared under section 51(2); F16...

F16(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of this Act must not be in a form which identifies or enables the identification of [F17officers of court] or persons against whom diligence has been executed.

Judicial officersS

F1858Appointment of judicial officerS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation of [F19officers of court]S

61Regulation of [F20officers of court]S

(1)The Scottish Ministers may, by regulations—

(a)confer functions on;

(b)remove functions from; or

(c)otherwise modify the functions of,

[F21officers of court].

(2)The Scottish Ministers may, by regulations—

(a)prescribe the types of business association which [F22officers of court] 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;

F23(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Before making regulations under subsection (1) or (2) above, the Scottish Ministers must consult [F24—

(a)the Lord President of the Court of Session; and

(b)each sheriff principal.]

F25(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F25(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F25(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F25(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F26Officers of court's] professional associationS

63[F27Officers of court's] professional associationS

(1)The Scottish Ministers, by regulations—

(a)must designate an association[F28(in this Part, the “professional association”)] as the professional association for [F29officers of court]; and

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

[F30(1A)Regulations under subsection (1) may require an officer of court to provide such information as the professional association reasonably considers necessary.]

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

[F31(a)the Lord President of the Court of Session;

(aa)each sheriff principal;]

(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 [F32an officer of court] unless that person is a member of the professional association.

Investigation of [F33officers of court]S

66Inspection of [F34officer of court]S

(1)The [F35Lord President of the Court of Session or any sheriff principal] may appoint a person to inspect the work or particular aspects of the work of [F36an officer of court].

(2)A person appointed under subsection (1) above must, if required to do so by the [F37Lord President or, as the case may be, the sheriff principal], inquire into any activities undertaken for remuneration by the [F38officer of court].

(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 [F39Lord President or, as the case may be, the sheriff principal].

(4)The [F40Scottish Ministers] 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.

MiscellaneousS

75[F42Officer of court's] actions void where officer has interestS

(1)Anything done by [F43an officer of court] in exercising or purporting to exercise a prescribed function in relation to a matter in which the officer has an interest is void.

(2)[F44An officer of court] 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 [F45officer of court];

(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 [F46an officer of court] 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 [F47an officer of court'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 [F48officer of court] of the prescribed function in relation to the debt concerned.

(7)In subsections (1) and (6) above, “prescribed function” means any function conferred on [F49an officer of court] by virtue of this Act or any other enactment which the Scottish Ministers by regulations specify for the purposes of this section.

77Effect of code of practiceS

(1)[F51An officer of court] 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 [F5263A] of this Act.

(2)A failure on the part of [F53an officer of court] 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

[F54(b)a relevant court (within the meaning of subsection (8) of section 79 of the 1987 Act (investigation of alleged misconduct)) in disciplinary proceedings under that section;]

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

78Electronic publications and communicationsS

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, F55... being in writing includes a reference to that notification, F55... being an electronic communication.