House of Commons Amendments

Session 2010 - 12
Internet Publications
Other Bills before Parliament

3607

House of Commons

Notices of Amendments

given on

Tuesday 25 October 2011

For other Amendment(s) see the following page(s) of Supplement to Votes:

3513-18, 3523-26, 3531-34, 3535-46, 3575-81 and 3583-87

Consideration of Bill

Legal Aid, Sentencing and Punishment of Offenders Bill, As

Amended

Extension of scope of legal aid in complex cases

Yvonne Fovargue

NC17

To move the following Clause:—

‘(1)
Civil legal services other than services described in Part 1 of Schedule 1 are to be

available to an individual under this Part if subsection (2) is satisfied.

(2)
This subsection is satisfied where the Director—

(a)
has made a complex case determination in relation to the individual and

the services, and

(b)
has determined that the individual qualifies for the services in accordance

with this Part,


(and has not withdrawn either determination).

(3)
For the purposes of subsection (2), a complex case determination is a

determination—

(a)
that the individual has complex, interconnected needs in relation to

which the individual requires comprehensive civil legal services, and

(b)
not all of those civil legal services would otherwise be available to the

individual because they do not all fall within the scope of Schedule 1.’.

Tom Brake

128

Page  29,  line  30  [Clause  41],  at end add—

(4C)
Sections 4A and 4B shall not apply, as regards a party to proceedings, to:

(a)
any proceedings in relation to defamation or misuse of private

information; or

(b)
any proceedings arising out of the same cause of action as any

proceedings to which sub-paragraph (a) refers.’.

Notices of Amendments: 25 October 2011
3608

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

Tom Brake

129

Page  29,  line  36  [Clause  41],  at end insert—

‘(4A)
The amendment made by subsection (4) does not apply in relation to a success fee

payable under a conditional fee agreement in relation to:

(a)
any proceedings in relation to defamation or misuse of private

information; or

(b)
any proceedings arising out of the same cause of action as any

proceedings to which sub-paragraph (a) refers.’.

Tom Brake

130

Page  31,  line  22  [Clause  43],  at end insert—

‘(2A)
The Lord Chancellor must by regulations provide that a costs orde may include

provision requiring the payment of such an amount where—

(a)
the order is made in favour of a party to proceedings or proceedings

related to defamation or to misuse of private information of a prescribed

description.’.

Tom Brake

131

Page  113,  line  4  [Schedule  1],  at end add—

‘(c)
financial difficulties leading to loss of home.’.

Tom Brake

132

Page  118,  line  27  [Schedule  1],  after ‘negligence’, insert ‘with the exception of

clinical negligence’.

Rules against referral fees

Secretary Kenneth Clarke

NC18

To move the following Clause:—

‘(1)
A regulated person is in breach of this section if—

(a)
the regulated person refers prescribed legal business to another person

and is paid or has been paid for the referral, or

(b)
prescribed legal business is referred to the regulated person, and the

regulated person pays or has paid for the referral.

(2)
A regulated person is also in breach of this section if in providing legal services

in the course of prescribed legal business the regulated person—

(a)
arranges for another person to provide services to the client, and

(b)
is paid or has been paid for making the arrangement.

(3)
Section [Regulators and regulated persons] defines “regulated person”.

(4)
“Prescribed legal business” means business that involves the provision of legal

services to a client, where—

(a)
the legal services relate to a claim or potential claim for damages for

personal injury or death, or

(b)
the business is of a description specified in regulations made by the Lord

Chancellor.

Notices of Amendments: 25 October 2011
3609

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

(5)
There is a referral of prescribed legal business if—

(a)
a person provides information to another,

(b)
it is information that a provider of legal services would need to make an

offer to the client to provide relevant services, and

(c)
the person providing the information is not the client;


and “relevant services” means any of the legal services that the business involves.

(6)
“Legal services” means services provided by a person which consist of or include

legal activities (within the meaning of the Legal Services Act 2007) carried on by

or on behalf of that person; and a provider of legal services is a person authorised

to carry on a reserved legal activity within the meaning of that Act.

(7)
“Client”—

(a)
where subsection (4)(a) applies, means the person who makes or would

made the claim;

(b)
where subsection (4)(b) applies, has the meaning given by the

regulations.

(8)
Payment includes any form of consideration (but does not include the provision

of hospitality that is reasonable in the circumstances).’.

Effect of the rules against referral fees

Secretary Kenneth Clarke

NC19

To move the following Clause:—

‘(1)
The relevant regulator must ensure that it has appropriate arrangements for

monitoring and enforcing the restrictions imposed on regulated persons by

section [Rules against referral fees].

(2)
A regulator may make rules for the purposes of subsection (1).

(3)
The rules may in particular provide for the relevant regulator to exercise in

relation to anything done in breach of that section any powers (subject to

subsections (5) and (6)) that the regulator would have in relation to anything done

by the regulated person in breach of another restriction.

(4)
Where the relevant regulator is the Financial Services Authority, section

[Regulation by the FSA] applies instead of subsections (1) to (3) (and (7) to (9)).

(5)
A breach of section [Rules against referral fees]—

(a)
does not make a person guilty of an offence, and

(b)
does not give rise to a right of action for breach of statutory duty.

(6)
A breach of section [Rules against referral fees] does not make anything void or

unenforceable, but a contract to make or pay for a referral or arrangement in

breach of that section is unenforceable.

(7)
Subsection (8) applies in a case where—

(a)
a referral of prescribed legal business has been made by or to a regulated

person, or

(b)
a regulated person has made an arrangement as mentioned in section

[Rules against referral fees](2)(a),


and it appears to the regulator that a payment made to or by the regulated person

may be a payment for the referral or for making the arrangement (a “referral fee”).

(8)
Rules under subsection (2) may provide for the payment to be treated as a referral

fee unless the regulated person shows that the payment was made—

(a)
as consideration for the provision of services, or

(b)
for another reason,

Notices of Amendments: 25 October 2011
3610

Legal Aid, Sentencing and Punishment of Offenders Bill, continued


and not as a referral fee.

(9)
For the purposes of provision made by virtue of subsection (8) a payment that

would otherwise be regarded as consideration for the provision of services of any

description may be treated as a referral fee if it exceeds the amount specified in

relation to services of that description in regulations made by the Lord

Chancellor.’.

Regulation by the FSA

Secretary Kenneth Clarke

NC20

To move the following Clause:—

‘(1)
The Treasury may make regulations to enable the Financial Services Authority,

where it is the relevant regulator, to take action for monitoring and enforcing

compliance with the restrictions imposed on regulated persons by section [Rules

against referral fees].

(2)
The regulations may apply, or make provision corresponding to, any of the

provisions of the Financial Services and Markets Act 2000 with or without

modification.

(3)
Those provisions include in particular—

(a)
provisions as to investigations, including powers of entry and search and

criminal offences;

(b)
provisions for the grant of an injunction in relation to a contravention or

anticipated contravention.

(c)
provisions giving Ministers or the Financial Services Authority powers

to make subordinate legislation;

(d)
provisions for the Financial Services Authority to charge fees.

(4)
The regulations may make provision corresponding to the provision that may be

made by virtue of section [Effect of the rules against referral fees](7) to (9) (but

as if the reference to the Lord Chancellor were a reference to the Treasury).

(5)
The power to make regulations under this section is subject to section [Effect of

the rules against referral fees](5) and (6).’.

Regulators and regulated persons

Secretary Kenneth Clarke

NC21

To move the following Clause:—

‘(1)
In relation to a referral of business within section [Rules against referral

fees](4)(a)—

(a)
a regulator is any person listed in column 1 below;

(b)
a regulated person is any person listed in column 2;

(c)
a regulator in column 1 is the relevant regulator in relation to the

corresponding person in column 2.

Notices of Amendments: 25 October 2011
3611

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

1. Regulator
2. Regulated person

the Financial Services Authority
an authorised person (within the meaning of

the Financial Services and Markets Act

2000) of a description specified in

regulations made by the Treasury

the Claims Management Regulator
a person authorised by the Regulator under

section 5(1)(a) of the Compensation Act

2006 to provide regulated claims

management services

the General Council of the Bar
a person authorised by the Council to carry

on a reserved legal activity within the

meaning of the Legal Services Act 2007

the Law Society
a person authorised by the Society to carry

on a reserved legal activity within the

meaning of the Legal Services Act 2007

a regulatory body specified for the
a person of a description specified in the

purposes of this subsection in
regulations in relation to the body

regulations made by the Lord

Chancellor

(2)
In relation to a referral of prescribed legal business of any other kind—

(a)
a regulator is any person listed in column 1 below and specified in

relation to business of that kind in regulations made by the Lord

Chancellor;

(b)
a regulated person is any person specified in accordance with column 2

in relation to business of that kind;

(c)
a person specified under paragraph (a) in relation to business of that kind

is the relevant regulator in relation to a person specified in accordance

with the corresponding entry in column 2 in relation to business of that

kind.

1. Regulator
2. Regulated person

the Financial Services Authority
an authorised person (within the meaning of

the Financial Services and Markets Act

2000) of a description specified in

regulations made by the Treasury

the Claims Management Regulator
a person who is authorised by the Regulator

under section 5(1)(a) of the Compensation

Act 2006 to provide regulated claims

management services and is of a description

specified in regulations made by the Lord

Chancellor

an approved regulator for the
a person who is authorised by the regulator

purposes of Part 3 of the Legal
to carry on a reserved legal activity and is of

Services Act 2007 (approved legal
a description specified in regulations made

activities);
by the Lord Chancellor

a licensing authority for the
a person who is licensed by the authority to

purposes of Part 5 of that Act
carry on a reserved legal activity and is of a

(alternative business structures)
description specified in regulations made by

the Lord Chancellor’.

Notices of Amendments: 25 October 2011
3612

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

Referral fees: regulations

Secretary Kenneth Clarke

NC22

To move the following Clause:—

‘(1)
This section applies to any regulations under sections [Rules against referral

fees], [Effect of the rules against referral fees], [Regulation by the FSA] and

[Regulators and regulated persons].

(2)
The regulations are to be made by statutory instrument.

(3)
The power to make the regulations includes power to make consequential,

supplementary, incidental, transitional, transitory or saving provision.

(4)
A statutory instrument containing the regulations may not be made unless a draft

of the instrument has been laid before, and approved by a resolution of, each

House of Parliament.’.

Removal of limit on certain fines on conviction by magistrates’ court

Secretary Kenneth Clarke

NC23

To move the following Clause:—

‘(1)
Where a relevant offence would, apart from this subsection, be punishable on

summary conviction by a fine or maximum fine of £5,000 or more (however

expressed), the offence is punishable on summary conviction by a fine of any

amount.

(2)
Where a relevant power could, apart from this subsection, be exercised to create

an offence punishable on summary conviction by a fine or maximum fine of

£5,000 or more (however expressed), the power may be exercised to create an

offence punishable on summary conviction by a fine of any amount.

(3)
For the purposes of this section, an offence or power is relevant if, immediately

before the commencement day, it is contained in an Act or an instrument made

under an Act (whether or not the offence or power is in force at that time).

(4)
Nothing in subsection (1) affects—

(a)
fines for offences committed before the commencement day,

(b)
fines that may be imposed on a person aged under 18, or

(c)
fines that may be imposed on a person convicted by a magistrates’ court

who is to be sentenced as if convicted on indictment,


and nothing in subsection (2) affects a relevant power to the extent that it relates

to such fines.

(5)
The Secretary of State may by regulations—

(a)
make provision disapplying subsection (1) or (2),

Notices of Amendments: 25 October 2011
3613

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

(b)
make provision for a fine or maximum fine in relation to which

subsection (1) is disapplied to be increased instead in accordance with the

regulations, and

(c)
make provision for a power in relation to which subsection (2) is

disapplied to be exercisable to create an offence punishable on summary

conviction by a fine or maximum fine of a higher amount specified or

described in the regulations.

(6)
Subsection (7) applies in relation to a relevant offence that, immediately before

the commencement day, is punishable on summary conviction by a fine or

maximum fine expressed as a proportion of an amount of £5,000 or more

(however that amount is expressed).

(7)
The Secretary of State may by regulations make provision for the offence to be

punishable on summary conviction by a fine of that proportion of a higher amount

specified or described in the regulations.

(8)
Regulations under this section may not include provision affecting—

(a)
fines for offences committed before the regulations come into force,

(b)
fines that may be imposed on a person aged under 18, or

(c)
fines that may be imposed on a person convicted by a magistrates’ court

who is to be sentenced as if convicted on indictment,


or provision affecting a relevant power to the extent that it relates to such fines.

(9)
Regulations under this section—

(a)
may make different provision for different cases or circumstances,

(b)
may make provision generally or only for specified cases or

circumstances, and

(c)
may make consequential, incidental, supplementary, transitional,

transitory or saving provision.

(10)
The power under subsection (9)(c), and the power under section 115 to make

provision in relation to this section, include power to amend, repeal, revoke or

otherwise modify any provision which, immediately before the commencement

day, is contained in an Act or an instrument made under an Act (whether or not

the provision is in force at that time).

(11)
Regulations under this section are to be made by statutory instrument.

(12)
A statutory instrument containing regulations under this section may not be made

unless a draft of the instrument has been laid before, and approved by a resolution

of, each House of Parliament.

(13)
If, immediately before the commencement day, the sum specified as level 5 on

the standard scale in section 37(2) of the Criminal Justice Act 1982 (standard

scale of fines for summary offences) is greater than £5,000, the references in this

section to £5,000 have effect as if they were references to that sum.

(14)
For the purposes of this section, an offence is relevant whether it is a summary

offence or an offence triable either way.

(15)
In this section—

“the commencement day” means the day on which subsection (1) of this

section comes into force;

“Act” includes an Act or Measure of the National Assembly for Wales.’.

Power to increase certain other fines on conviction by magistrates’ court

Secretary Kenneth Clarke

NC24

To move the following Clause:—



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