House of Commons Amendments

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