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Officers of Court – Business Organisation A Consultation Officers of Court – Business Organisation A Consultation The Scottish Government, Edinburgh 2011 © Crown copyright 2011 ISBN: 978-1-78045-148-0 (web only) The Scottish Government St Andrew’s House Edinburgh EH1 3DG Produced for the Scottish Government by APS Group Scotland DPPAS11506 (03/11) Published by the Scottish Government, March 2011 Officers of Court – Business Organisation A Consultation CONTENTS Page Ministerial Foreword 2 Introduction 3 Background 6 Current Developments 8 Legal Profession Experience 9 European Comparators 11 Issues and Conclusions 12 Respondent Form 13 Consultation Questionnaire 14 Annex A 18 Annex B 19 Annex C 20 Officers of Court – Business Organisation A Consultation Ministerial Foreword I am pleased to publish this short consultation about the important issue of the way in which firms of officers of court are organised. The key priority for the Scottish Government is to develop and enhance a vibrant Scottish economy and generate wealth and prosperity in Scotland. Officers of Court have a key role to play as owners and employees in successful businesses. Their ability to continue making a contribution is even more important in these challenging economic times. Equally Officers of Court make a vital contribution to the Scottish Justice framework by ensuring that obligations are met and rights can be enforced. We need to have confidence in the integrity of the profession and this extends to the way in which their businesses are organised. In keeping with our drive for simplification of the public sector we concluded that the establishment of a new Scottish Civil Enforcement Commission was both disproportionate and expensive and would not be set up. Our alternative approach has been to improve the framework for self-regulation within the profession, subject to the oversights of the courts. We have recently regulated to designate a professional association of which all commissioned officers of court must be members. This consultation on the business arrangements for officers of court continues our commitment to improve the regulatory framework of the profession and secure its status and reputation. MINISTER FOR COMMUNITY SAFETY 2 1. INTRODUCTION Purpose of consultation 1.1 This consultation invites comments on proposals to make regulations about the types of business association which officers of court may form; the ownership, membership, management and control of those business associations and the prescription of conditions which those business associations must satisfy, as provided for under section 61(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007. These provisions have been revised by the Public Services Reform (Scotland) Act 2010. In particular, what sort of business model would best support the need to deliver a professional and impartial service throughout Scotland in what appears to be a shrinking market? 1.2 Messengers-at-Arms have responsibility for the execution of warrants issued by the Court of Session, the High Court of Justiciary and the Court of the Lord Lyon and they may act throughout Scotland. Sheriff officers have responsibility for executing sheriff court warrants and their commissions are restricted to a particular sheriffdom but many hold plural commissions thus covering a number of sheriffdoms. 1.3 The offices of Messenger-at-Arms and Sheriff Officer are of long standing and have responsibility for the exercise of a number of public functions relating to the execution of court business, for example witness citation and service of court orders. Their activities are certified and they owe a duty to the court for which they are exercising functions. Scope of this consultation 1.4 The Scottish Ministers are required to consult with the Lord President and Sheriffs Principal. Given the nature of the provisions, this consultation will also be sent to a wider audience of stakeholder interests. Annex A provides a list of the bodies or persons to whom this consultation paper has been sent. A copy of the consultation will also be available via the Scottish Government website. 1.5 This consultation covers Scotland only. Related documents 1.6 The Public Services Reform (Scotland) Act 2010 can be found at the following link: http://www.legislation.gov.uk/asp/2010/8/contents 3 How to respond 1.7 The closing date for comments is 30 June 2011. Please send responses to: The Scottish Government Legal System Division Floor 2 West St Andrews House Regent Road Edinburgh EH1 3DG Or by email to [email protected] 1.8 We would be grateful if you would use the consultation questionnaire provided or could clearly indicate in your response which questions or parts of the consultation paper you are responding to as this will aid our analysis of the responses received. 1.9 This consultation, and all other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website at: http://www.scotland.gov.uk/consultations. 1.10 We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. 1.11 Please complete and return the Respondent Information Form as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential and treat it accordingly. 1.12 All respondents should be aware that the Scottish Government are subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise. 1.13 Where respondents have given permission for their response to be made public and after we have checked that they contain no potentially defamatory material, we will provide a link to the consultation responses (which are not marked as confidential) on the Scottish Government website within two weeks of the conclusion of the consultation exercise. You will also be able to make arrangements to view the responses by contacting the Scottish Government Library on 0131-244-4552. Responses can be copied and sent to you, but a charge may be made for this service. 1.14 Once the consultation exercise has concluded, all responses will be systematically analysed and considered along with any other available evidence and reported on. Any key messages will also be highlighted in the report to help us reach a decision on the making of regulations under section 61(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 1.15 Annex B provides more information about the consultation process. 4 1.16 If you have any comments about how this consultation exercise has been conducted, please send them to: The Scottish Government Legal System Division Floor 2 West St Andrews House Regent Road Edinburgh EH1 3DG Or by email to [email protected] 5 2. BACKGROUND 2.1 Officers of Court hold public office and have some exclusive rights in the service of judicial documents and the enforcement of court orders. They may also be independent contractors operating in the same way as commercial agents. Where they differ from commercial agents is that they have a duty to act when instructed; they have regulated fees and they fall within the disciplinary authority of the Sheriffs Principal and the Lord President. 2.2 Officers of court may be sole practitioners, a partner in a firm, or an employee of either a self-employed officer or firm of officers. There is a statutory requirement that officer of court firms cannot operate as limited companies or be employed by a limited company. 2.3 The Scottish Government originally consulted on proposals for modernisation of the enforcement system in Scotland as part of the “Enforcement of Civil Obligations in Scotland” (ECOS) consultation of April 20021. 2.4 A summary of the proposals for organisational restructure and related reform was provided at paragraphs 3.110 to 3.111 of the ECOS Paper and these are reproduced below: - 3.110 A Scottish Civil Enforcement Commission should operate as the sole body where all matters relating to enforcement are determined and overseen. Existing judicial responsibility including granting commission, investigation of complaints and discipline of enforcement officers together with existing functions of the Advisory Council of Messengers-at-Arms and Sheriff Officers should transfer to the Commission. Its membership should comprise the judicial and professional interests represented in the former Advisory Council together with lay representation. The Commission should also approve standards of practice, training and continuing professional development programmes, set the level of regulated fees and issue guidance on matters such as advertising practices. It should collect information and statistics, publish an annual report and have responsibility for education and information in this field. 3.111 The existing offices of messenger-at-arms and sheriff officers should be amalgamated into a single office of civil enforcement officers. The Commission should determine the territorial competence of enforcement officers having regard to sheriff court jurisdiction and may impose conditions with regard to remote or outlying areas. All commissioned enforcement officers should have competence to execute Court of Session enforcement within their territory. 2.5 It was the clear view of the Scottish Government that the Scottish Civil Enforcement Commission was not necessary and in 2008 the decision was made not to proceed with its establishment both on the grounds of cost and need. 2.6 Although it wasn’t explicitly addressed in the ECOS consultation, a number of the respondents raised the issue of how officers of court businesses organised themselves. 1 Enforcement of Civil Obligations – A Consultation Document, April 2002, Scottish Executive. 6 A specific query was whether the arrangement of a limited liability partnership (“LLP”) sufficiently safeguarded what are regarded as core principles of the officer of court profession – impartiality and independence.
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