| Legal Services Bill [Lords] - continued | House of Commons |
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Bridget Prentice 79 Schedule 16, page 249, line 34, at end insert— ‘( ) in subsection (1), after paragraph (e) insert— “(ea) by a solicitor who has been suspended from practice as a sole solicitor for an unspecified period, by order of the Tribunal, for the termination of that suspension;”, ( ) in subsection (2) for “subsection” (where it first occurs) substitute “subsections (2E) and”, ( ) after subsection (2)(b) insert— “(ba) the revocation of that solicitor’s sole solicitor endorsement (if any); (bb) the suspension of that solicitor from practice as a sole solicitor indefinitely or for a specified period;”,’. This amendment allows a solicitor to apply to the Tribunal for a termination of a suspension previously ordered by the Tribunal. This amendment also provides that on an application or complaint under the Act, the Tribunal may revoke a sole solicitor endorsement, or suspend a solicitor from sole practice. Bridget Prentice 80 Schedule 16, page 249, line 35, after ‘£5,000”,’ insert— ‘( ) after subsection (2)(e) insert— “(ea) the termination of that solicitor’s unspecified period of suspension from practice as a sole solicitor;”, ( ) after subsection (2D) insert— “(2E) On the hearing of any complaint made to the Tribunal by virtue of section 34A(2) or (3), the Tribunal shall have power to make one or more of the following— (a) an order directing the payment by the employee to whom the complaint relates of a penalty to be forfeited to Her Majesty; (b) an order requiring the Society to consider taking such steps as the Tribunal may specify in relation to that employee; (c) if that employee is not a solicitor, an order which states one or more of the matters mentioned in paragraphs (a) to (c) of section 43(2); (d) an order requiring the Society to refer to an appropriate regulator any matter relating to the conduct of that employee. (2F) Subsections (1) to (1C), (3) and (4) of section 44 apply in relation to an order under subsection (2E)(c) as they apply in relation to an order under section 43(2). (2G) Section 44(2), paragraph 16(1)(d) and (1A)(d) of Schedule 2 to the Administration of Justice Act 1985 and paragraph 15(3A) of Schedule 14 to the Courts and Legal Services Act 1990 apply in relation to an order under subsection (2E)(c) as they apply in relation to an order under section 43(2). (2H) For the purposes of subsection (2E)(d) an “appropriate regulator” in relation to an employee means— (a) if the employee is an authorised person in relation to a reserved legal activity (within the meaning of the Legal Services Act 2007), any relevant approved regulator (within the meaning of that Act) in relation to that employee, and (b) if the employee carries on activities which are not reserved legal activities (within the meaning of that Act), any body which regulates the carrying on of such activities by the employee.”,’. This amendment provides the Tribunal with certain order powers to accompany new application and complaints powers in relation to sole solicitor endorsements. This amendment also adapts the application of certain statutory provisions for such orders. Bridget Prentice 81 Schedule 16, page 249, line 41, after ‘Tribunal)’, insert— ‘(a) in subsection (2)(b)— (b) ’. This amendment provides that the obligation for the Law Society to publish certain Tribunal orders under section 47 extends to decisions to suspend or revoke sole solicitor endorsements. It also omits the specific need to publish section 47 decisions in the London Gazette. Bridget Prentice 82 Schedule 16, page 249, line 42, at end insert ‘, and (c) after subsection (4) insert— “(5) In the case of orders of the Tribunal under section 44E, the reference in subsection (2)(a) to the application or complaint is to be read as a reference to the Tribunal’s order.”’. This amendment adds a new subsection (5) to section 48 of the Solicitors Act 1974. The subsection ensures that a note of a Tribunal order under new section 44E is entered on the solicitor’s roll. Bridget Prentice 83 Schedule 16, page 250, line 13, after
‘(e)’, insert ‘, (ea)’. This amendment is related to amendment 79. It ensures that any decision of the High Court in relation to an appeal from a Tribunal order terminating a person’s suspension from sole practice shall be final. Bridget Prentice 84 Schedule 16, page 251, line 20, after ‘(5)’, insert ‘— (a) ’. This is a paving amendment for amendment 85. Bridget Prentice 85 Schedule 16, page 251, line 23, at end insert ‘, and (b) in paragraph (d) after “solicitor” insert “, or any employee of his who is an authorised person,”. () After that subsection insert— “(5A) In subsection (5) “authorised person” means a person who is an authorised person in relation to an activity which is a reserved legal activity, within the meaning of the Legal Services Act 2007 (see section j155 of that Act).”’. This amendment provides that orders made under section 56 to regulate remuneration of solicitors for non-contentious business may take into account the skill, labour and responsibility that the business in question requires not only of solicitors, but also of employees of solicitors who are authorised persons. Bridget Prentice 86 Schedule 16, page 251, line 43,
leave out ‘negligence’ and insert ‘his negligence,
or that of any employee of his,’. This amendment provides that the prohibition on provisions in contentious agreements relieving a solicitor from responsibility for his negligence or that of his employees. Bridget Prentice 87 Schedule 16, page 252, line 27, at end insert ‘, and This amendment provides that an assessment by a costs officer of the remuneration due to a solicitor in respect of previous work may take into account any default, negligence, delay or improper conduct on the part of a solicitor’s employees. Bridget Prentice 88 Schedule 16, page 252, line 39, at end insert— ‘(d) in paragraph (a), after “solicitor” insert “or an employee of the solicitor”, and (e) in paragraph (b), after “him” insert “or by any employee of his who is an authorised person (within the meaning of section 56(5A))”.’. This amendment provides that on an assessment of costs in respect of any contentious business, the costs officer may, in determining the remuneration of the solicitor, take into account the skill, labour and responsibility of not only the solicitor, but also employees of the solicitor who are authorised persons. Bridget Prentice 89 Schedule 16, page 257, line 21, after ‘32(1)(a)”,’ insert— ‘( ) after the definition of “sole solicitor” insert— ““sole solicitor endorsement” has the same meaning as in section 1B;”’. This amendment adds a definition of “sole solicitor endorsement” to the interpretation provisions. Bridget Prentice 90 Schedule 16, page 257, line 35, at end insert— This amendment extends the circumstances in which the Law Society may intervene in a solicitor’s practice to cover suspected dishonesty in connection with any trust of which an employee of that solicitor is or was a trustee in his capacity as an employee. Bridget Prentice 91 Schedule 16, page 258, line 33, leave out paragraph (b) and insert— ‘(b) for paragraph (a) substitute— “(a) the Society is satisfied that there has been undue delay— This amendment extends the circumstances in which the Law Society may intervene in a solicitor’s practice to cover undue delay in connection with any trust of which an employee of that solicitor is a or was a trustee in his capacity as an employee. Bridget Prentice 92 Schedule 16, page 259, line 1, leave out paragraph (b) and insert— ‘(b) in sub-paragraph (2)(a) for “his practice” to the end substitute— This amendment extends the powers of the Law Society following intervention. Under paragraph 6 of Schedule 1 to the Solicitors Act 1974, sums of money can now vest in the Law Society where they are held by or on behalf of the solicitor in connection with the situations set out in this amendment. Bridget Prentice 93 Schedule 16, page 273, line 3, at end insert— ‘( ) Where powers conferred by Part 2 of Schedule 1 to the 1974 Act are exercisable in relation to a person within paragraph (a), (b) or (c) of sub-paragraph (3), they continue to be so exercisable after the person has ceased to be a person within the paragraph in question.’ This amendment ensures that if a person to whom a notice requiring information is given ceases after the notice is given to be a recognised body, or an employee or manager of, or person with an interest in, the body, the enforcement powers will nonetheless remain available. Bridget Prentice 94 Schedule 16, page 273, line 38, at end insert— ‘After that paragraph insert— “Disciplinary powers of the Society 14B (1) This paragraph applies where the Society is satisfied that a recognised body, or a manager or employee of a recognised body, has failed to comply with a requirement imposed by or by virtue of this Act or any rules applicable to that person by virtue of section 9 of this Act. (2) The Society may do one or both of the following— (a) give the person a written rebuke; (b) direct the person to pay a penalty not exceeding £2,000. (3) The Society may publish details of any action it has taken under sub-paragraph (2)(a) or (b), if it considers it to be in the public interest to do so. (4) Where the Society takes action against a person under sub-paragraph (2)(b), or decides to publish under sub-paragraph (3) details of such action under sub-paragraph (2)(a) or (b), it must notify the person in writing that it has done so. (5) A penalty imposed under sub-paragraph (2)(b) does not become payable until— (a) the end of the period during which an appeal against the decision to impose the penalty, or the amount of the penalty, may be made under paragraph 14C, or (b) if such an appeal is made, such time as it is determined or withdrawn. (6) The Society may not publish under sub-paragraph (3) details of any action under sub-paragraph (2)(a) or (b)— (a) during the period within which an appeal against— may be made under paragraph 14C, or (b) if such an appeal has been made, until such time as it is determined or withdrawn. (7) The Society must make rules— (a) prescribing the circumstances in which the Society may decide to take action under sub-paragraph (2)(a) or (b); (b) about the practice and procedure to be followed by the Society in relation to such action; (c) governing the publication under sub-paragraph (3) of details of action taken under sub-paragraph (2)(a) or (b); and the Society may make such other rules in connection with the exercise of its powers under this paragraph as it considers appropriate. (8) Before making rules under sub-paragraph (7), the Society must consult the Tribunal. (9) A penalty under this paragraph may be recovered as a debt due to the Society, and is to be forfeited to Her Majesty. (10) The Lord Chancellor may, by order, amend paragraph (b) of sub-paragraph (2) so as to substitute for the amount for the time being specified in that paragraph such other amount as may be specified in the order. (11) Before making an order under sub-paragraph (10), the Lord Chancellor must consult the Society. (12) An order under sub-paragraph (10) is to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. (13) This paragraph is without prejudice to any power conferred on the Society, or any other person, to make an application or complaint to the Tribunal. 14C (1) A person may appeal against— (a) a decision by the Society to rebuke that person under paragraph 14B(2)(a) if a decision is also made to publish details of the rebuke; (b) a decision by the Society to impose a penalty on that person under paragraph 14B(2)(b) or the amount of that penalty; (c) a decision by the Society to publish under paragraph 14B(3) details of any action taken against that person under paragraph 14B(2)(a) or (b). (2) Subsections (9)(b), (10)(a) and (b), (11) and (12) of section 46 of the 1974 Act (Tribunal rules about procedure for hearings etc) apply in relation to appeals under this paragraph as they apply in relation to applications or complaints, except that subsection (11) of that section is to be read as if for “the applicant” to “application)” there were substituted “any party to the appeal”. (3) Rules under section 46(9)(b) of the 1974 Act may, in particular, make provision about the period during which an appeal under this paragraph may be made. (4) On an appeal under this paragraph, the Tribunal has power to make an order which— (a) affirms the decision of the Society; (b) revokes the decision of the Society; (c) in the case of a penalty imposed under paragraph 14B(2)(b), varies the amount of the penalty; (d) in the case of a recognised body, contains provision for any of the matters mentioned in paragraph 18(2); (e) in the case of a manager or employee of a recognised body, contains provision for any of the matters mentioned in paragraph 18A(2); (f) makes such provision as the Tribunal thinks fit as to payment of costs. (5) Where, by virtue of sub-paragraph (4)(e), an order contains provision for any of the matters mentioned in sub-paragraph (2)(c) of paragraph 18A, sub-paragraphs (4) and (5) of that paragraph apply as if the order had been made under sub-paragraph (2)(c) of that paragraph. (6) An appeal from the Tribunal shall lie to the High Court, at the instance of the Society or the person in respect of whom the order of the Tribunal was made. (7) The High Court shall have power to make such order on an appeal under this paragraph as it may think fit. (8) Any decision of the High Court on an appeal under this section shall be final. (9) This paragraph is without prejudice to any power conferred on the Tribunal in connection with an application or complaint made to it.”’.
This amendment inserts new paragraphs 14B and 14C into Schedule 2 to the Administration of Justice Act 1985 which make similar provision for recognised bodies, their managers and employees to that made for solicitors by the new sections 44D and 44E of the Solicitors Act 1974 inserted by amendment 78. Bridget Prentice 95 Schedule 16, page 275, line 29, after
‘solicitor’, insert ‘or employee of a solicitor’. This amendment, together with amendment 96, allows the Tribunal to make an order, on one or more of the grounds set out in subsection (1), prohibiting an employee of a solicitor from employing or remunerating a person who is the subject of that order. Bridget Prentice 96 Schedule 16, page 275, line 30, leave
out ‘his practice as a’ and insert ‘the practice carried
on by that’. This amendment, together with amendment 95, allows the Tribunal to make an order, on one or more of the grounds set out in subsection (1), prohibiting an employee of a solicitor from employing or remunerating a person who is the subject of that order. Bridget Prentice 97 Schedule 16, page 277, line 2, after
‘solicitor’, insert ‘or any employee of the solicitor
who is an authorised person’. This amendment is consequential upon amendment 85, which inserted a reference to employees into section 56 of the Solicitors Act 1974. Bridget Prentice 98 Schedule 16, page 277, line 23, at end insert— ‘(4) A provision in the agreement that any manager
of the body shall be relieved from any responsibility to which the manager
would otherwise be subject in the course of the carrying on by the body
of its business as a recognised body shall be void.’. This amendment prohibits provision in a contentious business agreement relieving a recognised body’s manager of responsibility. Bridget Prentice 99 Schedule 16, page 280, line 35, leave
out ‘or employee’. This amendment is consequential upon amendment 92. Bridget Prentice 100 Schedule 16, page 280, line 37, leave
out ‘or employee’. This amendment is consequential upon amendment 92. Bridget Prentice 101 Schedule 16, page 281, line 18, after ‘etc)’, insert ‘— (a) for sub-paragraph (1) substitute— “(1) Where a recognised body acts as such for a client, any communication, document, material or information is privileged from disclosure in like manner as if the recognised body had at all material times been a solicitor acting for the client.”, and (b) ’. This amendment provides that not only a “communication”, but also “a document, material or information”, is privileged in like manner as if the recognised body had been acting as the client’s solicitor. It also deletes the reference to “legal proceedings”. These changes reflect developments in the common law of legal professional privilege. Bridget Prentice 102 Schedule 17, page 295, line 26, leave out from beginning to ‘does’ in line 28 and insert— ‘22 For section 33 (legal professional privilege) substitute— “33 Legal professional privilege (1) Subsection (2) applies where a licensed conveyancer or recognised body acts as such for a client. (2) Any communication, document, material or information is privileged from disclosure in like manner as if the licensed conveyancer or body had at all material times been acting as the client’s solicitor. (3) This section”.’. This amendment provides that not only a “communication”, but also “a document, material or information”, is privileged in like manner as if the persons had been acting as the client’s solicitor. It also deletes the reference to “legal proceedings”. These changes reflect developments in the common law of legal professional privilege. Bridget Prentice 103 Schedule 21, page 337, line 10, leave out paragraph (a) and insert— ‘( ) in subsection (1), after “to” (in the first place) insert “— (a) ”, ( ) at the end of that subsection insert “, and (b) documents, material or information relating to any matter mentioned in paragraph (a).”, and ( ) for subsection (2) substitute— “(2) Where a patent attorney acts for a client in relation to a matter mentioned in subsection (1), any communication, document, material or information to which this section applies is privileged from disclosure in like manner as if the patent attorney had at all material times been acting as the client’s solicitor.”,’. This amendment provides that documents, materials or information are, in addition to communications, privileged from disclosure in the circumstances set out in section 280 of the Copyright, Designs and Patents Act 1988. It also deletes the reference to legal proceedings. These changes reflect developments in the common law of privilege in the United Kingdom. |
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