|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 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— |
| |
| |
“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 |
| |
| 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 |
| |
| |
39 | In section 44 (offences in connection with orders under section 43(2))— |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
“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 |
| |
| |
(a) | to provide information, or information of a description, |
| 45 |
specified in the notice, or |
| |
(b) | produce documents, or documents of a description, specified |
| |
| |
|
| |
|
| |
|
(2) | This section applies to— |
| |
| |
(b) | an employee of a solicitor; |
| |
| |
(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 |
| |
| 10 |
(b) | whether a solicitor has failed to comply with any |
| |
requirements imposed by or by virtue of this Act or any rules |
| |
| |
(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 |
| |
(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 |
| |
(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 |
| |
| |
(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.” |
| |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
| 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). |
| |
| |
“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 |
| |
(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 |
|
| |
|
| |
|
provide an explanation of any information so provided or |
| |
| |
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, |
| |
| |
(2) | The High Court may make an order under this section only if it is |
| 10 |
| |
(a) | that it is likely that the information or document is in the |
| |
possession or custody of, or under the control of, the person, |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
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 |
| |
|
| |
|
| |
|
facts disclosed by the documents from the person conducting the |
| |
| |
(3) | It is an offence for a person, in purported compliance with a |
| |
requirement imposed on the person under section 44B, 44BA or |
| |
| 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 |
| |
(a) | on summary conviction, to imprisonment for a term not |
| |
exceeding 12 months or a fine not exceeding the statutory |
| |
| |
(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 |
| |
| 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 |
| |
| 25 |
(2) | A “discipline investigation” is an investigation carried out by the |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
(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 |
(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 |
| |
| |
(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 |
| |
| |
(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”. |
| |
|
| |
|