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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

243

 

(iii)   

no manager or employee of a recognised body shall

employ or remunerate that person in connection with

the business of that body,

   

except in accordance with a Society permission;

(b)   

that as from the specified date no recognised body or

5

manager or employee of such a body shall, except in

accordance with a Society permission, permit the person with

respect to whom the order is made to be a manager of the

body;

(c)   

that as from the specified date no recognised body or

10

manager or employee of such a body shall, except in

accordance with a Society permission, permit the person with

respect to whom the order is made to have an interest in the

body.

(2A)   

The Society may make regulations prescribing charges to be paid to

15

the Society by persons who are the subject of an investigation by the

Society as to whether there are grounds for the Society—

(a)   

to make an order under subsection (2), or

(b)   

to make an application to the Tribunal for it to make such an

order.

20

(2B)   

Regulations under subsection (2A) may—

(a)   

make different provision for different cases or purposes;

(b)   

provide for the whole or part of a charge payable under the

regulations to be repaid in such circumstances as may be

prescribed by the regulations.

25

(2C)   

Any charge which a person is required to pay under regulations

under subsection (2A) is recoverable by the Society as a debt due to

the Society from the person.”

      (3)  

In subsection (5) omit—

(a)   

“by any solicitor”, and

30

(b)   

the words from “but” to the end.

      (4)  

After that subsection insert—

“(5A)   

In this section—

“manager”, in relation to a recognised body, has the same

meaning as it has in relation to a body in the Legal Services

35

Act 2007 (see section 208 of that Act);

“recognised body” means a body recognised under section 9 of

the Administration of Justice Act 1985;

“specified date” means such date as may be specified in the

order;

40

“Society permission” means permission in writing granted by

the Society for such period and subject to such conditions as

the Society may think fit to specify in the permission.

(5B)   

A person has an interest in a recognised body for the purposes of this

section if the person has an interest in shares in that body within the

45

meaning of Part 5 of the Legal Services Act 2007 (see sections 72 and

109 of that Act).”

39         

In section 44 (offences in connection with orders under section 43(2))—

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

244

 

(a)   

for subsection (1) substitute—

“(1)   

It is an offence for a person in respect of whom there is in

force an order under section 43(2) which contains provision

within section 43(2)(a)—

(a)   

to seek or accept any employment or remuneration

5

from a solicitor in connection with the practice carried

on by that solicitor, without previously informing the

solicitor of the order;

(b)   

to seek or accept any employment or remuneration

from a recognised body, or a manager or employee of

10

a recognised body, in connection with that body’s

business, without previously informing the body, or

manager or employee, of the order.

(1A)   

It is an offence for a person in respect of whom there is in

force an order under section 43(2) which contains provision

15

within section 43(2)(b) to seek or accept a position as a

manager of a recognised body, without previously informing

that body of the order.

(1B)   

It is an offence for a person in respect of whom there is in

force an order under section 43(2) which contains provision

20

within section 43(2)(c) to seek or accept an interest in a

recognised body from any person, without previously

informing that person and (if different) the recognised body

of the order.

(1C)   

A person guilty of an offence under subsection (1), (1A) or

25

(1B) is liable on summary conviction to a fine not exceeding

level 3 on the standard scale.”,

(b)   

in subsection (2) for “the employment of that person” substitute “the

taking of any action”, and

(c)   

after subsection (4) insert—

30

“(5)   

In this section—

“manager” has the same meaning as in section 43;

“recognised body” means a body recognised under

section 9 of the Administration of Justice Act 1985;

   

and for the purposes of subsection (1B) a person seeks or

35

accepts an interest in a recognised body if the person seeks or

accepts an interest which if it were obtained by the person

would result in the person having an interest in shares in that

body within the meaning of Part 5 of the Legal Services Act

2007 (see sections 72 and 109 of that Act).”

40

40         

For section 44B (examination of files) substitute—

“44B    

Provision of information and documents by solicitors etc

(1)   

The Society may by notice require a person to whom this section

applies—

(a)   

to provide information, or information of a description,

45

specified in the notice, or

(b)   

produce documents, or documents of a description, specified

in the notice.

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

245

 

(2)   

This section applies to—

(a)   

a solicitor;

(b)   

an employee of a solicitor;

(c)   

a recognised body;

(d)   

an employee or manager of, or a person with an interest in

5

shares in, a recognised body.

(3)   

The Society may give a notice under this section only if it is satisfied

that it is necessary to do so for the purpose of investigating—

(a)   

whether there has been professional misconduct by a

solicitor;

10

(b)   

whether a solicitor has failed to comply with any

requirements imposed by or by virtue of this Act or any rules

made by the Society;

(c)   

whether a recognised body, or any of its managers or

employees has failed to comply with any requirement

15

imposed by or by virtue of the Administration of Justice Act

1985 or any rules made by the Society and applicable to the

body, manager or employee by virtue of section 9 of that Act;

(d)   

whether there are grounds for making, or making an

application to the Tribunal for it to make, an order under

20

section 43(2) with respect to a person who is or was involved

in a legal practice (within the meaning of section 43(1A)).

(4)   

A notice under this section—

(a)   

may specify the time and place at which, and manner and

form in which, the information is to be provided or document

25

is to be produced;

(b)   

must specify the period within which the information is to be

provided or the document produced;

(c)   

may require the information to be provided or document to

be produced to the Society or to a person specified in the

30

notice.

(5)   

The Society may pay to any person such reasonable costs as may be

incurred by that person in connection with the provision of any

information, or production of any document, by that person

pursuant to a notice under this section.

35

(6)   

Paragraphs 9(3) and (4) and 13, 15 and 16 of Schedule 1 apply in

relation to the powers to obtain information conferred by this

section, but for this purpose paragraph 9 of that Schedule has effect

as if—

(a)   

in sub-paragraph (3) for “such documents” there were

40

substituted “information to which a notice given to him

under section 44B applies”,

(b)   

in that sub-paragraph for “sub-paragraph (1)” there were

substituted “the notice”, and

(c)   

in sub-paragraph (4) for “produce” (in the first place) to the

45

end there were substituted “provide information pursuant to

a notice under section 44B to provide the information to any

person appointed by the Society at such time and place as

may be specified in the order.”

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

246

 

(7)   

Paragraphs 9 (other than sub-paragraphs (1) and (3)), 12, 13, 15 and

16 of Schedule 1 apply in relation to the powers to obtain documents

conferred by this section as they apply in relation to the powers

conferred by paragraph 9(1) of that Schedule, except that for this

purpose—

5

(a)   

any reference in paragraph 9 of that Schedule to a person

appointed, or to a requirement, under sub-paragraph (1) of

that paragraph is to be construed as a reference to a person

appointed, or to a requirement to produce documents, under

this section,

10

(b)   

any reference in that paragraph to any such documents as are

mentioned in paragraph 9(1) of that Schedule is to be

construed as a reference to any documents to which a notice

under this section applies,

(c)   

the reference to the solicitor or his firm in paragraph 9(5) of

15

that Schedule, and the reference to the solicitor or personal

representative in paragraph 9(7) of that Schedule, are to be

construed as references to the person to whom the notice was

given under this section, and

(d)   

the reference in paragraph 9(12) of that Schedule to the

20

Society is to be construed as including a reference to a person

specified under subsection (4)(c).

(8)   

In this section—

“manager” has the same meaning as in the Legal Services Act

2007 (see section 208 of that Act);

25

“recognised body” means a body recognised under section 9 of

the Administration of Justice Act 1985;

   

and the reference to a person who has an interest in shares in a

recognised body is to be construed in accordance with sections 72

and 109 of the Legal Services Act 2007.

30

44BA    

Power to require explanation of document or information

(1)   

The Society may, by notice, require a person to whom a notice is

given under section 44B (or a representative of the person) to attend

at a time and place specified in the notice to provide an explanation

of any information provided or document produced pursuant to the

35

notice.

(2)   

The Society may pay to any person such reasonable costs as may be

incurred by that person in connection with that person’s compliance

with a requirement imposed under subsection (1).

(3)   

Paragraphs 9(3) and (4) and 13, 15 and 16 of Schedule 1 apply in

40

relation to a notice under this section, except that for this purpose

paragraph 9 of that Schedule has effect as if—

(a)   

in sub-paragraph (3) for “having” to “sub-paragraph (1)”

there were substituted “refuses, neglects or otherwise fails to

comply with a requirement under section 44BA(1)”, and

45

(b)   

in sub-paragraph (4) for “produce” (in the first place) to the

end there were substituted “provide an explanation of any

information provided or document produced pursuant to a

notice under section 44B (or a representative of such a

person) to attend at a time and place specified in the order to

50

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

247

 

provide an explanation of any information so provided or

document so produced.”

44BB    

Provision of information and documents by other persons

(1)   

The High Court, on the application of the Society, may order a

person to whom section 44B does not apply—

5

(a)   

to provide information, or information of a description,

specified in the notice, or

(b)   

to produce documents, or documents of a description,

specified in the notice.

(2)   

The High Court may make an order under this section only if it is

10

satisfied—

(a)   

that it is likely that the information or document is in the

possession or custody of, or under the control of, the person,

and

(b)   

that there is reasonable cause to believe that the information

15

or document is likely to be of material significance to an

investigation into any of the matters mentioned in section

44B(3)(a) to (d).

(3)   

An order under this section may direct the Society to pay to a person

specified in the order such reasonable costs as may be incurred by

20

that person in connection with the provision of any information, or

production of any document, by that person pursuant to the order.

(4)   

Section 44B(4) applies in relation to an order under this section as it

applies in relation to a notice under section 44B.

(5)   

Paragraphs 9(5A) and (7) to (12), 12, 13, 15 and 16 of Schedule 1 apply

25

in relation to an order under this section as they apply in relation to

an order under paragraph 9(4) of that Schedule, except that for this

purpose—

(a)   

the reference to the solicitor or personal representative in

paragraph 9(7) of that Schedule is to be construed as a

30

reference to the person in respect of whom the order under

this section is made, and

(b)   

the reference in paragraph 9(12) of that Schedule to the

Society is to be read as including a reference to a person

specified under section 44B(4)(c) (as applied by subsection (4)

35

of this section).

44BC    

Information offences

(1)   

It is an offence for a person who knows or suspects an investigation

into any of the matters mentioned in section 44B(3)(a) to (d) is being

or is likely to be conducted—

40

(a)   

to falsify, conceal, destroy or otherwise dispose of a

document which the person knows or suspects is or would be

relevant to the investigation, or

(b)   

to cause or permit the falsification, concealment, destruction

or disposal of such a document.

45

(2)   

In proceedings for an offence under subsection (1) it is a defence for

the accused to show that the accused had no intention of concealing

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

248

 

facts disclosed by the documents from the person conducting the

investigation.

(3)   

It is an offence for a person, in purported compliance with a

requirement imposed on the person under section 44B, 44BA or

44BB—

5

(a)   

to provide information which the person knows to be false or

misleading in a material particular, or

(b)   

recklessly to provide information which is false or

misleading in a material particular.

(4)   

A person who is guilty of an offence under subsection (1) or (3) is

10

liable—

(a)   

on summary conviction, to imprisonment for a term not

exceeding 12 months or a fine not exceeding the statutory

maximum, or both;

(b)   

on conviction on indictment, to imprisonment for term not

15

exceeding 2 years or a fine, or both.

(5)   

In relation to an offence under subsection (1) or (3) committed before

the commencement of section 154(1) of the Criminal Justice Act 2003

the reference in subsection (4)(a) to 12 months is to be read as a

reference to 6 months.”

20

41         

For section 44C (payment of costs of investigations) substitute—

“44C    

Power to charge for costs of investigations

(1)   

The Society may make regulations prescribing charges to be paid to

the Society by solicitors who are the subject of a discipline

investigation.

25

(2)   

A “discipline investigation” is an investigation carried out by the

Society into—

(a)   

possible professional misconduct by a solicitor, or

(b)   

a failure or apprehended failure by a solicitor to comply with

any requirement imposed by or by virtue of this Act or any

30

rules made by the Society.

(3)   

Regulations under this section may—

(a)   

make different provision for different cases or purposes;

(b)   

provide for the whole or part of a charge payable under the

regulations to be repaid in such circumstances as may be

35

prescribed by the regulations.

(4)   

Any charge which a solicitor is required to pay under regulations

under this section is recoverable by the Society as a debt due to the

Society from the solicitor.”

42    (1)  

Section 46 (solicitors disciplinary tribunal) is amended as follows.

40

      (2)  

For subsection (5) substitute—

“(5)   

The Tribunal may pay its members such remuneration, fees or

allowances as it may determine with the approval of the Legal

Services Board.”

 

 

Legal Services Bill [HL]
Schedule 16 — The Law Society, solicitors, recognised bodies and foreign lawyers
Part 1 — The Solicitors Act 1974 (c. 47)

249

 

      (3)  

After that subsection insert—

“(5A)   

The Tribunal may do anything calculated to facilitate, or incidental

or conducive to, the carrying out of any of its functions.”

      (4)  

Omit subsections (6) to (8).

      (5)  

In subsection (9)—

5

(a)   

for “Subject to subsections (6) to (8), the” substitute “The”,

(b)   

omit “, with the concurrence of the Master of the Rolls,”, and

(c)   

in paragraph (b) after “complaints” insert “(including provision

about the composition of the Tribunal)”.

43         

After that section insert—

10

“46A    

Funding of the Tribunal

(1)   

The Tribunal must submit to the Society in respect of each year a

budget for the year approved by the Legal Services Board.

(2)   

A budget for a year is a statement of the amount of money which the

Tribunal estimates is required to enable it to meet all of its

15

expenditure in that year (having regard to any amounts received but

not spent in previous years).

(3)   

Before approving a statement for the purposes of subsection (1) the

Legal Services Board must consult the Society.

(4)   

The budget for a year must be submitted to the Society under

20

subsection (1) no later than the date in the preceding year specified

by the Society for the purposes of this subsection.

(5)   

Before specifying a date for this purpose the Society must consult the

Tribunal.

(6)   

The amount specified in a budget submitted under subsection (1)

25

must be paid by the Society to the Tribunal—

(a)   

in such instalments and at such times as may be agreed

between the Society and the Tribunal, or

(b)   

in the absence of such agreement, before the beginning of the

year to which the budget relates.

30

(7)   

The Society may pay the Tribunal such other amounts as the Society

considers appropriate.

(8)   

In this section “year” means a calendar year.”

44         

In section 47 (jurisdiction and powers of Tribunal)—

(a)   

in subsection (2)(c) omit “not exceeding £5,000”,

35

(b)   

after subsection (3A) insert—

“(3B)   

For the avoidance of doubt, nothing in this section permits

the Tribunal to make an order requiring redress to be made

in respect of any act or omission of any person.”, and

(c)   

omit subsections (4) and (5).

40

45         

In section 48 (orders of Tribunal), in subsection (3) for “Subject to section

43(5), any” substitute “Any”.

 

 

 
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