Session 2010 - 12
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Consideration of Bill: 31 October 2011                  

3759

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

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.’.

 

As Amendments to Secretary Kenneth Clarke’s proposed New Clause (Effect of the

 

rules against referral fees) (NC19):—

 

Mr Jack Straw

 

(a)

 

Line  11,  leave out subsection 5.

 

Mr Jack Straw

 

(b)

 

Line  26,  leave out from ‘services’ to end of paragraph (b) and insert ‘but only

 

where the consideration was proportionate and reasonable in the

 

circumstances.’.

 


 

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).’.

 



 
 

Consideration of Bill: 31 October 2011                  

3760

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

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.

 

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.


 
 

Consideration of Bill: 31 October 2011                  

3761

 

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 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’.

 
 


 

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.’.

 



 
 

Consideration of Bill: 31 October 2011                  

3762

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

NEW CLAUSES AND NEW SCHEDULES RELATING TO FINES ON CONVICTION In

 

Magistrates’ Courts

 

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),

 

(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,


 
 

Consideration of Bill: 31 October 2011                  

3763

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(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:—

 

‘(1)    

Subsection (2) applies in relation to a relevant offence which, immediately before

 

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

 

maximum fine of a fixed amount of less than £5,000.

 

(2)    

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

 

punishable on summary conviction by a fine or maximum fine of a higher amount

 

specified or described in the regulations.

 

(3)    

Subsection (4) applies in relation to a relevant power which, immediately before

 

the commencement day, can be exercised to create an offence punishable on

 

summary conviction by a fine or maximum fine of a fixed amount of less than

 

£5,000 but not to create an offence so punishable by a fine or maximum fine of a

 

fixed amount of £5,000 or more.

 

(4)    

The Secretary of State may by regulations make provision for the power 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.

 

(5)    

Regulations under this section may not specify or describe an amount exceeding

 

whichever is the greater of—

 

(a)    

£5,000, or

 

(b)    

the sum specified for the time being as level 4 on the standard scale.

 

(6)    

Regulations under this section may not include provision affecting—


 
 

Consideration of Bill: 31 October 2011                  

3764

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(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.

 

(7)    

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.

 

(8)    

The power under subsection (7)(c) includes 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).

 

(9)    

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

 

(10)    

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.

 

(11)    

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.

 

(12)    

In this section “Act”, “the commencement day”, “relevant offence” and “relevant

 

power” have the same meaning as in section [Removal of limit on certain fines on

 

conviction by magistrates’ court].’.

 


 

Power to amend standard scale of fines for summary offences

 

Secretary Kenneth Clarke

 

NC25

 

To move the following Clause:—

 

‘(1)    

The Secretary of State may by order substitute higher sums for the sums for the

 

time being specified as levels 1 to 4 on the standard scale in section 37(2) of the

 

Criminal Justice Act 1982 (standard scale of fines for summary offences).

 

(2)    

The power under subsection (1) may not be exercised so as to alter the ratio of

 

one of those levels to another.

 

(3)    

In section 143 of the Magistrates’ Courts Act 1980 (power to alter sums including

 

standard scale of fines for summary offences), in subsection (3)(b), after

 

“subsection (1) above” insert “or section [Power to amend standard scale of fines

 

for summary offences] of the Legal Aid, Sentencing and Punishment of Offenders

 

Act 2011”.

 

(4)    

In section 37 of the Criminal Justice Act 1982 (standard scale of fines for

 

summary offences), in subsection (3), at the end insert “or section [Power to

 

amend standard scale of fines for summary offences] of the Legal Aid, Sentencing

 

and Punishment of Offenders Act 2011”.

 

(5)    

An order under this section is to be made by statutory instrument.


 
 

Consideration of Bill: 31 October 2011                  

3765

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(6)    

A statutory instrument containing an order 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.

 

(7)    

An order under this section does not affect fines for offences committed before

 

the order comes into force.’.

 


 

NEW CLAUSES AND NEW SCHEDULES RELATING TO SECTION 76 OF THE CRIMINAL

 

JUSTICE AND IMMIGRATION ACT 2008

 

Reasonable force for the purposes of self-defence etc

 

Secretary Kenneth Clarke

 

NC27

 

To move the following Clause:—

 

‘(1)    

Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force

 

for the purposes of self-defence etc) is amended as follows.

 

(2)    

In subsection (2) after paragraph (a) omit “and” and insert—

 

“(aa)    

the common law defence of defence of property; and”.

 

(3)    

After subsection (6) insert—

 

“(6A)    

In deciding the question mentioned in subsection (3), a possibility that D

 

could have retreated is to be considered (so far as relevant) as a factor to

 

be taken into account, rather than as giving rise to a duty to retreat.”

 

(4)    

In subsection (8) for “Subsection (7) is” substitute “Subsections (6A) and (7)

 

are”.

 

(5)    

In subsection (10)(a) after sub-paragraph (i) omit “or” and insert—

 

“(ia)    

the purpose of defence of property under the common

 

law, or”.’.

 


 

NEW CLAUSES AND NEW SCHEDULES RELATING TO SQUATTING

 

Offence of squatting in a residential building

 

Secretary Kenneth Clarke

 

NC26

 

To move the following Clause:—

 

‘(1)    

A person commits an offence if—

 

(a)    

the person is in a residential building as a trespasser having entered it as

 

a trespasser,

 

(b)    

the person knows or ought to know that he or she is a trespasser, and

5

(c)    

the person is living in the building or intends to live there for any period.

 

(2)    

The offence is not committed by a person holding over after the end of a lease or

 

licence (even if the person leaves and re-enters the building).

 

(3)    

For the purposes of this section—


 
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