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| |
| |
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| | (b) | if such an appeal has been made, until such time as it is |
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| | |
35 | | (7) | The Society must make rules— |
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| | (a) | prescribing the circumstances in which the Society may |
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| | decide to take action under sub-paragraph (2)(a) or (b); |
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| | (b) | about the practice and procedure to be followed by the |
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| | Society in relation to such action; |
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40 | | (c) | governing the publication under sub-paragraph (3) of |
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| | details of action taken under sub-paragraph (2)(a) or (b); |
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| | | and the Society may make such other rules in connection with the |
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| | exercise of its powers under this paragraph as it considers |
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| | |
45 | | (8) | Before making rules under sub-paragraph (7), the Society must |
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| | |
| | (9) | A penalty under this paragraph may be recovered as a debt due to |
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| | the Society, and is to be forfeited to Her Majesty. |
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| | (10) | The Lord Chancellor may, by order, amend paragraph (b) of sub- |
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50 | | paragraph (2) so as to substitute for the amount for the time being |
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| | specified in that paragraph such other amount as may be specified |
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| | |
| | (11) | Before making an order under sub-paragraph (10), the Lord |
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| | Chancellor must consult the Society. |
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55 | | (12) | An order under sub-paragraph (10) is to be made by statutory |
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| | instrument subject to annulment in pursuance of a resolution of |
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| | either House of Parliament. |
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| | (13) | This paragraph is without prejudice to any power conferred on the |
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| | Society, or any other person, to make an application or complaint to |
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60 | | |
| | 14C(1) | A person may appeal against— |
|
| | (a) | a decision by the Society to rebuke that person under |
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| | paragraph 14B(2)(a) if a decision is also made to publish |
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| | |
65 | | (b) | a decision by the Society to impose a penalty on that person |
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| | under paragraph 14B(2)(b) or the amount of that penalty; |
|
| | (c) | a decision by the Society to publish under paragraph |
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| | 14B(3) details of any action taken against that person under |
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| | paragraph 14B(2)(a) or (b). |
|
70 | | (2) | Subsections (9)(b), (10)(a) and (b), (11) and (12) of section 46 of |
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| | 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 |
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| | that section is to be read as if for “the applicant” to “application)” |
|
75 | | there were substituted “any party to the appeal”. |
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| | (3) | Rules under section 46(9)(b) of the 1974 Act may, in particular, |
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| | make provision about the period during which an appeal under this |
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| | |
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| |
| |
|
| | (4) | On an appeal under this paragraph, the Tribunal has power to make |
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80 | | |
| | (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 |
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| | 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 |
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| | |
90 | | (f) | makes such provision as the Tribunal thinks fit as to |
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| | |
| | (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 |
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| | |
| | (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 |
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| | of the Tribunal was made. |
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100 | | (7) | The High Court shall have power to make such order on an appeal |
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| | under this paragraph as it may think fit. |
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| | (8) | Any decision of the High Court on an appeal under this section shall |
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| | |
| | (9) | This paragraph is without prejudice to any power conferred on the |
|
105 | | Tribunal in connection with an application or complaint made to |
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| | |
| | |
| | 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):— |
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| |
| | |
| Line 11, Leave out lines 11 to 13 and insert— |
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| | ‘(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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|
|
| |
| |
|
| |
| | |
| |
| | ‘( ) | varies the decision of the Society;’. |
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| |
| | Members’ explanatory statement
|
|
| | This amendment gives the Tribunal power to vary the Law Society’s decision. |
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| |
| | |
| Schedule 16, page 275, line 29, after ‘solicitor’, insert ‘or employee of a solicitor’.
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|
| |
| | 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. |
|
| |
| | |
| Schedule 16, page 275, line 30, leave out ‘his practice as a’ and insert ‘the practice |
|
| |
| |
| | 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. |
|
| |
| | |
| Schedule 16, page 275, line 47, at end insert— |
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| | ‘() | 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. |
|
| |
| | |
| Schedule 16, page 277, line 2, after ‘solicitor’, insert ‘or any employee of the |
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| 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. |
|
| |
| | |
| 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 |
|
|
|
| |
| |
|
| | 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. |
|
| |
| |
| |
| | |
| 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 |
|
| | |
| | (ca) | the Society has reason to suspect dishonesty on the part of any |
|
| | manager of a recognised body; or”.’. |
|
| |
| | |
| Schedule 16, page 280, line 35, leave out ‘or employee’.
|
|
| |
| | Members’ explanatory statement
|
|
| | This amendment is consequential upon amendment 92. |
|
| |
| | |
| Schedule 16, page 280, line 37, leave out ‘or employee’.
|
|
| |
| | Members’ explanatory statement
|
|
| | This amendment is consequential upon amendment 92. |
|
| |
| |
| |
| | |
| Schedule 16, page 281, line 14, leave out from ‘partnership’ to ‘and’ in line 15 and |
|
| |
| | | ‘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 |
|
| | |
| |
| | |
| 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 |
|
| | |
| |
| | 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 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. |
|
| |
| | |
| 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. |
|
| |
| | |
| 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. |
|
| |
| |
| | |
| 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. |
|
| |
| | |
| 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. |
|
| |
| | |
| 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. |
|
|
|
| |
| |
|
| |
| | |
| 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. |
|
| |
| | |
| Schedule 17, page 295, line 26, leave out from beginning to ‘does’ in line 28 and |
|
| |
| | ‘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. |
|
| | |
| |
| | 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. |
|
| |
| |
| | |
| 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. |
|
| |
| | |
| Clause 191, page 103, line 21, leave out ‘providing’ and insert ‘provides’. |
|
| |
| | Members’ explanatory statement
|
|
| | This amendment is consequential upon amendment 18. |
|
| |
| | |
| Clause 191, page 103, line 23, leave out ‘providing’ and insert ‘provides’. |
|
|
|
| |
| |
|
| |
| | Members’ explanatory statement
|
|
| | This amendment is consequential upon amendment 18. |
|
| |
| | |
| Clause 191, page 103, line 25, leave out ‘providing’ and insert ‘provides’. |
|
| |
| | Members’ explanatory statement
|
|
| | This amendment is consequential upon amendment 18. |
|
| |
| | |
| Clause 191, page 103, line 27, leave out ‘providing’ and insert ‘provides’. |
|
| |
| | Members’ explanatory statement
|
|
| | This amendment is consequential upon amendment 18. |
|
| |
| | |
| 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. |
|
| |
| | |
| 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. |
|
| |
| | |
| 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. |
|
|