House of Commons Amendments

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Notices of Amendments: 8th June 2007
124

Legal Services Bill-[ Lords], continued

(5)
A penalty imposed under subsection (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 section 44E, or

(b)
if such an appeal is made, such time as it is determined or

withdrawn.

(6)
The Society may not publish under subsection (3) details of any action

under subsection (2)(a) or (b)—

(a)
during the period within which an appeal against—

(i)
the decision to take the action,

(ii)
in the case of action under subsection (2)(b), the

amount of the penalty, or

(iii)
the decision to publish the details,


may be made under section 44E, 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determined or withdrawn.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 subsection (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 subsection (3) of details of

action taken under subsection (2)(a) or (b);


and the Society may make such other rules in connection with the

exercise of its powers under this section as it considers appropriate.

(8)
Before making rules under subsection (7), the Society must consult the

Tribunal.

(9)
A penalty payable under this section 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

subsection (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 subsection (10), the Lord Chancellor

must consult the Society.

(12)
An order under subsection (10) is to be made by statutory instrument

subject to annulment in pursuance of a resolution of either House of

Parliament.

(13)
This section is without prejudice to any power conferred on the

Society or any other person to make an application or complaint to the

Tribunal.

44E
Appeals against disciplinary action under section 44D

(1)
A person may appeal against—

(a)
a decision by the Society to rebuke that person under section

44D(2)(a) if a decision is also made to publish details of the

rebuke;

Notices of Amendments: 8th June 2007
125

Legal Services Bill-[ Lords], continued

(b)
a decision by the Society to impose a penalty on that person

under section 44D(2)(b) or the amount of that penalty;

(c)
a decision by the Society to publish under section 44D(3)

details of any action taken against that person under section

44D(2)(a) or (b).

(2)
Subsections (9)(b), (10)(a) and (b), (11) and (12) of section 46

(Tribunal rules about procedure for hearings etc) apply in relation to

appeals under this section 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) may, in particular, make provision about

the period during which an appeal under this section may be made.

(4)
On an appeal under this section, the Tribunal has power to make such

order as it thinks fit, and such an order may in particular—

(a)
affirm the decision of the Society;

(b)
revoke the decision of the Society;

(c)
in the case of a penalty imposed under section 44D(2)(b), vary

the amount of the penalty;

(d)
in the case of a solicitor, contain provision for any of the

matters mentioned in paragraphs (a) to (d) of section 47(2);

(e)
in the case of an employee of a solicitor, contain provision for

any of the matters mentioned in section 47(2E);

(f)
make such provision as the Tribunal thinks fit as to payment

of costs.

(5)
Where by virtue of subsection (4)(e) an order contains provision for

any of the matters mentioned in section 47(2E)(c), section 47(2F) and

(2G) apply as if the order had been made under section 47(2E)(c).

(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 section as it may think fit.

(8)
Any decision of the High Court on an appeal under this section shall

be final.

(9)
This section is without prejudice to any power conferred on the

Tribunal in connection with an application or complaint made to it.”’.

Members’ explanatory statement

This amendment inserts new sections 44D and 44E into the Solicitors Act 1974 establishing a pro

cedure that allows the Law Society to rebuke or fine a solicitor where he has breached a require

ment of that Act or any rules made by the Society, or been found to have committed professional

misconduct.

Bridget Prentice

79

Schedule  16,  page  249,  line  34,  at end insert—

‘( )
in subsection (1), after paragraph (e) insert—

Notices of Amendments: 8th June 2007
126

Legal Services Bill-[ Lords], continued

“(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;”,’.

Members’ explanatory statement

This amendment allows a solicitor to apply to the Tribunal for a termination of a suspension pre

viously ordered by the Tribunal. This amendment also provides that on an application or com

plaint 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—

Notices of Amendments: 8th June 2007
127

Legal Services Bill-[ Lords], continued

(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.”,’.

Members’ explanatory statement

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)—

(i)
after “(e),” insert “(ea),”, and

(ii)
omit “in the London Gazette”, and

(b)
’.

Members’ explanatory statement

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.”’.

Members’ explanatory statement

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)’.

Members’ explanatory statement

This amendment is related to amendment 79. It ensures that any decision of the High Court in re

lation to an appeal from a Tribunal order terminating a person’s suspension from sole practice

shall be final.

Notices of Amendments: 8th June 2007
128

Legal Services Bill-[ Lords], continued

Bridget Prentice

84

Schedule  16,  page  251,  line  20,  after ‘(5)’, insert ‘—

(a)
’.

Members’ explanatory statement

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 18 of that Act).”’.

Members’ explanatory statement

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 au

thorised persons.

Bridget Prentice

86

Schedule  16,  page  251,  line  43,   leave out ‘negligence’ and insert ‘his negligence,

or that of any employee of his,’.

Members’ explanatory statement

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

(iii)
after “solicitor” (in the third place) insert “, or any of his

employees,’.

Members’ explanatory statement

This amendment provides that an assessment by a costs officer of the remuneration due to a solic

itor 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

Notices of Amendments: 8th June 2007
129

Legal Services Bill-[ Lords], continued

(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))”.’.

Members’ explanatory statement

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, la

bour and responsibility of not only the solicitor, but also employees of the solicitor who are au

thorised 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;”’.

Members’ explanatory statement

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—

‘( )
after “trustee” insert “or that employee is or was a trustee in

his capacity as such an employee”,’.

Members’ explanatory statement

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—

(i)
on the part of a solicitor in connection with

any matter in which the solicitor or his

firm is or was acting on behalf of a client

or with any trust, or

(ii)
on the part of an employee of a solicitor in

connection with any trust of which the

employee is or was a trustee in his capacity

as such an employee; and”,’.

Members’ explanatory statement

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 or was a trustee in his capacity as an employee.

Notices of Amendments: 8th June 2007
130

Legal Services Bill-[ Lords], continued

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—

“(i)
his practice or former practice,

(ii)
any trust of which he is or formerly was a

trustee, or

(iii)
any trust of which a person who is or was

an employee of the solicitor is or was a

trustee in the person’s capacity as such an

employee;”, and’.

Members’ explanatory statement

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 amend

ment.

Mr Jonathan Djanogly

Mr Henry Bellingham

Mr Tobias Ellwood

260


Schedule  16,  page  264,  line  35,  leave out paragraphs (a) and (b) and insert—

‘at least three-quarters of the partners are authorised persons or are registered foreign

lawyers, and any other partners do not directly provide services to clients.’.

Members’ explanatory statement

See Members’ explanatory statement for amendment 259.

Mr Jonathan Djanogly

Mr Henry Bellingham

Mr Tobias Ellwood

261


Schedule  16,  page  264,  line  43,  leave out paragraphs (a) and (b) and insert—

‘at least three-quarters of the members of the body are authorised persons or are registered

foreign lawyers, and any other members do not directly provide services to clients.’.

Members’ explanatory statement

See Members’ explanatory statement for amendment 259.

Mr Jonathan Djanogly

Mr Henry Bellingham

Mr Tobias Ellwood

262


Schedule  16,  page  265,  line  6,  leave out paragraphs (a) and (b) and insert—

‘at least three-quarters of the persons within subsection (5) are authorised persons or are

registered foreign lawyers, and any other members do not directly provide services to

clients.’.

Members’ explanatory statement

See Members’ explanatory statement for amendment 259.