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Public Bill Committee: 26th June 2007                  

513

 

Legal Services Bill [Lords], continued

 
 

(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determined or withdrawn.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.


 
 

Public Bill Committee: 26th June 2007                  

514

 

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

 

employees 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)

 

Line  11,  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.


 
 

Public Bill Committee: 26th June 2007                  

515

 

Legal Services Bill [Lords], continued

 
 

John Mann

 

(b)

 

Line  81,  at end insert—

 

‘( )    

varies the decision of the Society;’.

 

 

Members’ explanatory statement

 

This amendment gives the Tribunal power to vary the Law Society’s decision.

 

Bridget Prentice

 

95

 

Schedule  16,  page  275,  line  29,  after ‘solicitor’, insert ‘or employee of a solicitor’.

 

 

Members’ explanatory statement

 

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’.

 

 

Members’ explanatory statement

 

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

 

197

 

Schedule  16,  page  275,  line  47,  at end insert—

 

      ‘()  

For this purpose a person has an interest in a body if the person has an interest

 

in the body within the meaning of Part 5 of the Legal Services Act 2007 (see

 

sections 72 and 109 of that Act).’.

 

 

Members’ explanatory statement

 

This amendment inserts a definition of “interest in the body”. The definition refers to the definition

 

of interest in a body in Clause 72 of the Bill.

 

Bridget Prentice

 

97

 

Schedule  16,  page  277,  line  2,  after ‘solicitor’, insert ‘or any employee of the

 

solicitor who is an authorised person’.

 

 

Members’ explanatory statement

 

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


 
 

Public Bill Committee: 26th June 2007                  

516

 

Legal Services Bill [Lords], continued

 
 

business as a recognised body shall be void.’.

 

 

Members’ explanatory statement

 

This amendment prohibits provision in a contentious business agreement relieving a recognised

 

body’s manager of responsibility.

 

Mr Jonathan Djanogly

 

Mr Henry Bellingham

 

Mr Tobias Ellwood

 

318

 

Schedule  16,  page  279,  line  7,  leave out sub-paragraph (3) and insert—

 

    ‘(3)  

For sub-paragraph (2)(c) substitute—

 

“(c)    

a relevant insolvency event occurs in relation to a recognised

 

body;

 

(ca)    

the Society has reason to suspect dishonesty on the part of any

 

manager of a recognised body; or”.’.

 

Bridget Prentice

 

99

 

Schedule  16,  page  280,  line  35,  leave out ‘or employee’.

 

 

Members’ explanatory statement

 

This amendment is consequential upon amendment 92.

 

Bridget Prentice

 

100

 

Schedule  16,  page  280,  line  37,  leave out ‘or employee’.

 

 

Members’ explanatory statement

 

This amendment is consequential upon amendment 92.

 

Mr Jonathan Djanogly

 

Mr Henry Bellingham

 

Mr Tobias Ellwood

 

319

 

Schedule  16,  page  281,  line  14,  leave out from ‘partnership’ to ‘and’ in line 15 and

 

insert—

 

    

‘or the business of a sole principal, to a former manager of the body

 

(within the meaning of Schedule 2 to the Administration of Justice Act

 

1985),’.

 

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)    

’.

 

 

Members’ explanatory statement


 
 

Public Bill Committee: 26th June 2007                  

517

 

Legal Services Bill [Lords], continued

 
 

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

 

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

 

Society 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

 

Legal Services Act 1990 into line.

 

Bridget Prentice

 

325

 

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

 

( )    

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

 

198

 

Schedule  17,  page  295,  line  2,  leave out ‘of the persons within subsection (5)’ and

 

insert ‘director of the body’.

 

 

Members’ explanatory statement

 

This amendment adjusts the management and control condition in sub-paragraph (4) to provide

 

that at least one of the directors must be a licensed conveyancer. See also amendment 199.

 

Bridget Prentice

 

199

 

Schedule  17,  page  295,  leave out lines 4 to 6.

 

 

Members’ explanatory statement

 

This amendment is related to amendment 198, which adjusts the management and control

 

condition such that sub-paragraph (5) is no longer necessary.

 

Bridget Prentice

 

200

 

Schedule  17,  page  295,  line  17,  after ‘managers’, insert ‘or employees’.

 

 

Members’ explanatory statement

 

This amendment alters the definition of “relevant legal services” to refer to employees who are

 

authorised persons, rather than just managers who are authorised persons.


 
 

Public Bill Committee: 26th June 2007                  

518

 

Legal Services Bill [Lords], continued

 
 

Bridget Prentice

 

201

 

Schedule  17,  page  295,  line  23,  leave out ‘in shares’.

 

 

Members’ explanatory statement

 

This amendment is related to amendment 111. It adjusts the meaning of interest in a recognised

 

body to refer to the definition of interest in a body in Clause 72 of the Bill, rather than the former

 

“interest in shares” in a body.

 

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”.’.

 

 

Members’ explanatory statement

 

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

 

18

 

Clause  191,  page  103,  line  19,  leave out from ‘applies’ to end of line 20 and insert

 

‘where an individual (“P”) who is not a barrister or solicitor—’.

 

 

Members’ explanatory statement

 

This amendment is related to amendment 23. Together these amendments provide that not only a

 

“communication”, but also “a document, material or information” is privileged in like manner as

 

if the individual in subsection (1) had been acting as P’s solicitor. This reflects developments in

 

the common law of legal professional privilege.

 

Bridget Prentice

 

19

 

Clause  191,  page  103,  line  21,  leave out ‘providing’ and insert ‘provides’.

 

 

Members’ explanatory statement

 

This amendment is consequential upon amendment 18.

 

Bridget Prentice

 

20

 

Clause  191,  page  103,  line  23,  leave out ‘providing’ and insert ‘provides’.


 
 

Public Bill Committee: 26th June 2007                  

519

 

Legal Services Bill [Lords], continued

 
 

 

Members’ explanatory statement

 

This amendment is consequential upon amendment 18.

 

Bridget Prentice

 

21

 

Clause  191,  page  103,  line  25,  leave out ‘providing’ and insert ‘provides’.

 

 

Members’ explanatory statement

 

This amendment is consequential upon amendment 18.

 

Bridget Prentice

 

22

 

Clause  191,  page  103,  line  27,  leave out ‘providing’ and insert ‘provides’.

 

 

Members’ explanatory statement

 

This amendment is consequential upon amendment 18.

 

Bridget Prentice

 

23

 

Clause  191,  page  103,  line  29,  leave out from ‘Any’ to ‘privileged’ and insert

 

‘communication, document, material or information relating to the provision of the

 

services in question is’.

 

 

 

Members’ explanatory statement

 

This amendment provides that in addition to a “communication”, “a document, material or

 

information” is privileged in like manner as if the individual in subsection (1) had been acting as

 

P’s solicitor. It also deletes the reference to “legal proceedings”. These changes reflect

 

developments in the common law of legal professional privilege.

 

Bridget Prentice

 

24

 

Clause  191,  page  103,  line  33,  leave out from ‘(a)’ to ‘services’ in line 34 and insert

 

‘a licensed body provides’.

 

 

 

Members’ explanatory statement

 

This amendment is related to amendment 25. Together these amendments provide that not only a

 

“communication”, but also “a document, material or information” is privileged in the

 

circumstances set out in subsections (3) and (4). This reflects developments in the common law of

 

legal professional privilege.

 

Bridget Prentice

 

25

 

Clause  191,  page  103,  line  39,  leave out from ‘(4)’ to ‘privileged’ and insert ‘Any

 

communication, document, material or information relating to the provision of the

 

services in question is’.

 

 

Members’ explanatory statement

 

This amendment provides that not only a “communication”, but also “a document, material or

 

information”, is privileged in the circumstances set out in subsections (3) and (4). It also deletes

 

the reference to “legal proceedings”. These changes reflect developments in the common law of

 

legal professional privilege.


 
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