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471

 

House of Commons

 
 

Notices of Amendments

 

given on

 

Thursday 21st June 2007

 

For other Amendment(s) see the following page(s) of Supplement to Votes:

 

417-470

 

Public Bill Committee


 

Legal Services Bill [Lords]

 

Bridget Prentice

 

 

      That certain written evidence already reported to the House be appended to the

 

proceedings of the Committee.

 

Bridget Prentice

 

323

 

Clause  195,  page  108,  line  11,  leave out ‘under section 3’ and insert ‘in accordance

 

with section 3A’.

 

 

Members’ explanatory statement

 

This is a technical amendment which replaces the reference to registration under section 3 of the

 

Charities Act 1993 with a reference to registration in accordance with section 3A of that Act. It

 

reflects changes made to the 1993 Act and statutory references to registration by the Charities Act

 

2006.

 

Bridget Prentice

 

324

 

Schedule  16,  page  281,  line  40,  leave out ‘and’ and insert—

 

‘( )    

in that subsection for “officers” substitute “managers”, and’.

 

 

Members’ explanatory statement

 

The amendments made by Schedule 16 to legislation relating to bodies recognised by the Law So­

 

ciety under the Administration of Justice Act 1985 include amendments changing references to

 

“officers” of such a body to “managers”. This amendment brings section 89 of the Courts and Le­

 

gal Services Act 1990 into line.

 

Bridget Prentice

 

325

 

Schedule  16,  page  281,  line  46,  at end insert ‘and


 
 

Notices of Amendments: 21st June 2007                  

472

 

Legal Services Bill [Lords], continued

 
 

( )    

in subsection (9), after the definition of “foreign lawyer” insert—

 

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

 

Legal Services Act 2007 (see section 208 of that Act);”.’

 

Members’ explanatory statement

 

This amendment is consequential on amendment 324.  It inserts the same definition of "manager"

 

as is used in the Administration of Justice Act 1985.

 

Bridget Prentice

 

326

 

Schedule  21,  page  344,  line  14,  at end insert—

 

l

 

‘Police Act 1996 (c. 16)

 

            

In section 84 of the Police Act 1996 (representation at disciplinary and other

 

proceedings), in subsection (2) for “either by counsel or by a solicitor”

 

substitute “by a person who, for the purposes of the Legal Services Act 2007,

 

is an authorised person in relation to an activity which constitutes the exercise

 

of a right of audience (within the meaning of that Act)”.’

 

 

Members’ explanatory statement

 

This amendment enables a member of a police force who has elected to be legally represented at

 

a disciplinary hearing to be represented by any person authorised to exercise a right of audience,

 

whether or not a barrister or solicitor.  

 

Bridget Prentice

 

78

 

Schedule  16,  page  248,  line  39,  at end insert—

 

            

‘After that section insert—

 

“Disciplinary powers of the Society

 

44D    

Disciplinary powers of the Society

 

(1)    

This section applies where the Society is satisfied—

5

(a)    

that a solicitor or an employee of a solicitor has failed to

 

comply with a requirement imposed by or by virtue of this Act

 

or any rules made by the Society, or

 

(b)    

that there has been professional misconduct by a solicitor.

 

(2)    

The Society may do one or both of the following—

10

(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

 

subsection (2)(a) or (b), if it considers it to be in the public interest to

 

do so.

15

(4)    

Where the Society takes action against a person under subsection

 

(2)(b), or decides to publish under subsection (3) details of any action

 

taken under subsection (2)(a) or (b), it must notify the person in

 

writing that it has done so.

 

(5)    

A penalty imposed under subsection (2)(b) does not become payable

20

until—


 
 

Notices of Amendments: 21st June 2007                  

473

 

Legal Services Bill [Lords], continued

 
 

(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

25

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,

30

(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

35

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

40

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.

45

(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

50

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.

55

(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

60

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

65

rebuke;

 

(b)    

a decision by the Society to impose a penalty on that person

 

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


 
 

Notices of Amendments: 21st June 2007                  

474

 

Legal Services Bill [Lords], continued

 
 

(c)    

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

 

details of any action taken against that person under section

70

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

75

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

80

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;

85

(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

90

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

95

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.

100

(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.

 

As Amendments to Bridget Prentice’s proposed Amendment (No. 78):—

 

John Mann

 

(a)

 

Leave out lines 12 to 14 and insert—


 
 

Notices of Amendments: 21st June 2007                  

475

 

Legal Services Bill [Lords], continued

 
 

    ‘(3)  

The Society may publish details of any action it has taken under subsection

 

(2)(a) or (b), unless it considers that it is not in the public interest to do so.’.

 

 

Members’ explanatory statement

 

This amendment removes any obligation on the Law Society to take positive steps in every case to

 

satisfy itself that publication is in the public interest.

 

John Mann

 

(b)

 

Line  81,  at end insert—

 

‘( )    

vary the decision of the Society;’.

 

 

Members’ explanatory statement

 

This amendment makes clear that the Tribunal has power to vary the Law Society’s decision.

 

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,

5

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;

10

(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-

15

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—

20

(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.

25

      (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—

 

(i)    

the decision to take the action,

 

(ii)    

in the case of action under sub-paragraph (2)(b),

30

the amount of the penalty, or


 
 

Notices of Amendments: 21st June 2007                  

476

 

Legal Services Bill [Lords], continued

 
 

(iii)    

the decision to publish the details,

 

    

may be made under paragraph 14C, or

 

(b)    

if such an appeal has been made, until such time as it is

 

determined or withdrawn.

35

      (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;

40

(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.

45

      (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-

50

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.

55

    (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

60

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;

65

(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).

70

      (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)”

75

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.


 
 

Notices of Amendments: 21st June 2007                  

477

 

Legal Services Bill [Lords], continued

 
 

      (4)  

On an appeal under this paragraph, the Tribunal has power to make

80

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;

85

(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);

90

(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

95

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.

100

      (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

105

Tribunal in connection with an application or complaint made to

 

it.”’.

 

 

Members’ explanatory statement

 

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 employ­

 

ees to that made for solicitors by the new sections 44D and 44E of the Solicitors Act 1974 inserted

 

by amendment 78.

 

As Amendments to Bridget Prentice’s proposed Amendment (No. 94):—

 

John Mann

 

(a)

 

Leave out lines 11 to 13 and insert—

 

    ‘(3)  

The Society may publish details of any action it has taken under sub-paragraph

 

(2)(a) or (b), unless it considers that it is not in the public interest to do so.’.

 

 

Members’ explanatory statement

 

This amendment removes any obligation on the Law Society to take positive steps in every case to

 

satisfy itself that publication is in the public interest.


 
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