House of Commons portcullis
House of Commons
Session 2006 - 07
Internet Publications
Other Bills before Parliament


 
 

Public Bill Committee: 26th June 2007                  

499

 

Legal Services Bill [Lords], continued

 
 

Bridget Prentice

 

74

 

Schedule  16,  page  246,  line  41,  after ‘purpose’, insert ‘—

 

(a)    

’.

 


 

 

Members’ explanatory statement

 

This is a paving amendment for amendment 75.

 

Bridget Prentice

 

75

 

Schedule  16,  page  247,  line  2,  at end insert ‘, and

 

(b)    

the reference to the solicitor or his personal representative in

 

paragraph 13 of that Schedule is to be construed as a reference to the

 

person to whom the notice was given under this section.”’.

 


 

 

Members’ explanatory statement

 

This amendment ensures that paragraph 13 of Schedule 1 to the Solicitors Act 1974 (payment of

 

Law Society’s costs) is applied with modifications for the purposes of enforcing the Law Society’s

 

information powers.

 

Bridget Prentice

 

76

 

Schedule  16,  page  247,  line  36,  at end insert ‘, and

 

(c)    

the reference to the solicitor or his personal representative in

 

paragraph 13 of that Schedule is to be construed as a reference to the

 

person to whom the notice was given under this section.’.

 


 

 

Members’ explanatory statement

 

This amendment ensures that paragraph 13 of Schedule 1 to the Solicitors Act 1974 (payment of

 

Law Society’s costs) is applied with modifications for the purposes of enforcing the Law Society’s

 

information powers.

 

Bridget Prentice

 

77

 

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

 

‘(5)    

This section (other than subsection (2)(a)) applies in relation to an

 

employee of a solicitor as it applies in relation to a solicitor.’.

 


 

 

Members’ explanatory statement

 

This amendment is related to amendment 68. It enables the Law Society to charge the costs of an

 

investigation into non-compliance with statutory requirements or rules to an employee of a sole

 

solicitor who is the subject of such an investigation.

 

Bridget Prentice

 

78

 

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

 

            

‘After that section insert—


 
 

Public Bill Committee: 26th June 2007                  

500

 

Legal Services Bill [Lords], continued

 
 

“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—

 

(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.


 
 

Public Bill Committee: 26th June 2007                  

501

 

Legal Services Bill [Lords], continued

 
 

(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;

 

(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.


 
 

Public Bill Committee: 26th June 2007                  

502

 

Legal Services Bill [Lords], continued

 
 

(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

 

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

 

requirement 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)

 

Line  12,  Leave out lines 12 to 14 and insert—

 

    ‘(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.

 

Mr Jonathan Djanogly

 

Mr Henry Bellingham

 

Mr Tobias Ellwood

 

309

 

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

 

‘(2)    

After that section insert—

 

“44F  

Power for Society to rebuke and reprimand

 

(1)    

Where the Society has investigated whether there has been professional

 

misconduct by a solicitor, or whether a solicitor has failed to comply with

 

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

 

the Society, and the Society is satisfied that there was professional

 

misconduct on the part of the solicitor, or that the solicitor did fail to

 

comply with such a requirement or rule, but the Society is not satisfied

 

that it is in the public interest to make a complaint against the solicitor to

 

the Tribunal, the Society may rebuke or reprimand the solicitor and,

 

unless it considers that it is not in the public interest to do so, may make


 
 

Public Bill Committee: 26th June 2007                  

503

 

Legal Services Bill [Lords], continued

 
 

public both the fact that the solicitor has been rebuked or reprimanded

 

and a summary of the misconduct or failure concerned.

 

(2)    

The Society may make rules providing for rights of appeal to the Tribunal

 

against rebukes or reprimands made by the Society where they are made,

 

or proposed to be made, public or in such other circumstances as the

 

Society may prescribe.

 

(3)    

Rules made under subsection (2) may also make provision about the

 

procedure and practice to be followed in relation to—

 

(a)    

investigations as to whether there has been professional

 

misconduct by a solicitor, or whether a solicitor has failed to

 

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

 

or any rules made by the Council;

 

(b)    

the making of rebukes and reprimands; and

 

(c)    

the making public of rebukes and reprimands under subsection

 

(1).’.

 

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;”,’.

 


 

 

Members’ explanatory statement

 

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—


 
 

Public Bill Committee: 26th June 2007                  

504

 

Legal Services Bill [Lords], continued

 
 

(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.”,’.

 


 

 

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.


 
 

Public Bill Committee: 26th June 2007                  

505

 

Legal Services Bill [Lords], continued

 
 

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

 

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)    

’.

 

 

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

 

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,’.

 

 

Members’ explanatory statement


 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2007
Revised 26 June 2007