Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Part 6 — Legal Complaints
78

(a)
before the end of such reasonable period as may be specified in the
notice, and
(b)
in the case of information, in such manner or form as may be so
specified.
(3)
This section applies only to information and documents the provision or
5
production of which the ombudsman considers necessary for the
determination of the complaint.
(4)
An ombudsman may—
(a)
take copies of or extracts from a document produced under this section,
and
10
(b)
require the person producing the document to provide an explanation
of it.
(5)
If a person who is required under this section to produce a document fails to
do so, an ombudsman may require that person to state, to the best of that
person’s knowledge and belief, where the document is.
15
(6)
No person may be required under this section—
(a)
to provide any information which that person could not be compelled
to provide or give in evidence in civil proceedings before the High
Court, or
(b)
to produce any document which that person could not be compelled to
20
produce in such proceedings.
(7)
In this section “party”, in relation to a complaint, means—
(a)
the complainant;
(b)
the respondent;
(c)
any other person who in accordance with the scheme rules is to be
25
regarded as a party to the complaint.
148
Reporting failures to provide information or produce documents
(1)
This section applies where an ombudsman is of the opinion that an authorised
person has failed to comply with a requirement imposed under section 147(1).
(2)
The ombudsman must give each relevant authorising body, in relation to that
30
person, a report which—
(a)
states that the ombudsman is of that opinion, and
(b)
gives details of the failure.
(3)
A report under subsection (2) may require the relevant authorising body to
report to the ombudsman the action which has been or is to be taken by it in
35
response to the report under that subsection and the reasons for that action
being taken.
(4)
The duty imposed by subsection (2) is not affected by the withdrawal or
abandonment of the complaint in relation to which the requirement was
imposed under section 147(1).
40
(5)
If an ombudsman, having regard to any report produced by the relevant
authorising body in compliance with a requirement imposed under subsection
(3), or any failure to comply with such a requirement, considers—
(a)
that there has been a serious failure by the relevant authorising body to
discharge its regulatory functions, or
45

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Part 6 — Legal Complaints
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(b)
if such a requirement has been imposed on the body on more than one
occasion, that the relevant authorising body has persistently failed
adequately to discharge its regulatory functions,

the ombudsman may make a report to that effect to the Board.
(6)
In this section “authorised person” means an authorised person in relation to
5
any activity which is a reserved legal activity.
149
Enforcement of requirements to provide information or produce documents
(1)
This section applies where an ombudsman is of the opinion that a person (“the
defaulter”) has failed to comply with a requirement imposed under section
147(1).
10
(2)
The ombudsman may certify the defaulter’s failure to comply with the
requirement to the court.
(3)
Where an ombudsman certifies a failure to the court under subsection (2), the
court may enquire into the case.
(4)
If the court is satisfied that the defaulter has failed without reasonable excuse
15
to comply with the requirement, it may deal with—
(a)
the defaulter, and
(b)
in the case of a body, any manager of the body,

as if that person were in contempt.
(5)
Subsection (6) applies in a case where the defaulter is an authorised person in
20
relation to any activity which is a reserved legal activity.
(6)
The ombudsman (“the enforcing ombudsman”) may not certify the defaulter’s
failure to the court until a report by that or another ombudsman has been made
as required by section 148(2) and the enforcing ombudsman is satisfied—
(a)
that each relevant authorising body to whom such a report was made
25
has been given a reasonable opportunity to take action in respect of the
defaulter’s failure, and
(b)
that the defaulter has continued to fail to provide the information or
produce the documents to which the requirement under section 147
related.
30
(7)
In this section “court” means the High Court.
150
Reports of investigations
(1)
The OLC may, if it considers it appropriate to do so in any particular case,
publish a report of the investigation, consideration and determination of a
complaint made under the ombudsman scheme.
35
(2)
A report under subsection (1) must not (unless the complainant consents)—
(a)
mention the name of the complainant, or
(b)
include any particulars which, in the opinion of the OLC, are likely to
identify the complainant.
151
Restricted information
40
(1)
Except as provided by section 152, restricted information must not be
disclosed—

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Part 6 — Legal Complaints
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(a)
by a restricted person, or
(b)
by any person who receives the information directly or indirectly from
a restricted person.
(2)
In this section and section 152—
“restricted information” means information (other than excluded
5
information) which is obtained by a restricted person in the course of,
or for the purposes of, an investigation into a complaint made under
the ombudsman scheme (including information obtained for the
purposes of deciding whether to begin such an investigation or in
connection with the settlement of a complaint);
10
“restricted person” means—
(a)
the OLC,
(b)
an ombudsman, or
(c)
a person who exercises functions delegated under paragraph 22
of Schedule 15.
15
(3)
For the purposes of subsection (2) “excluded information” means—
(a)
information which is in the form of a summary or collection of
information so framed as not to enable information relating to any
particular person to be ascertained from it;
(b)
information which at the time of the disclosure is or has already been
20
made available to the public from other sources;
(c)
information which was obtained more than 70 years before the date of
the disclosure.
152
Disclosure of restricted information
(1)
A restricted person may disclose restricted information to another restricted
25
person.
(2)
Restricted information may be disclosed for the purposes of the investigation
in the course of which, or for the purposes of which, it was obtained.
(3)
Section 151 also does not preclude the disclosure of restricted information—
(a)
in a report made under—
30
(i)
section 143(2) (report of possible misconduct to approved
regulators),
(ii)
section 146(2) (report of failure to co-operate with
investigation),
(iii)
section 148 (reporting failures to provide information or
35
produce documents), or
(iv)
section 150 (reports of investigations),
(b)
for the purposes of enabling or assisting the Board to exercise any of its
functions,
(c)
to an approved regulator for the purposes of enabling or assisting the
40
approved regulator to exercise any of its regulatory functions,
(d)
with the consent of the person to whom it relates and (if different) the
person from whom the restricted person obtained it,
(e)
for the purposes of an inquiry with a view to the taking of any criminal
proceedings or for the purposes of any such proceedings,
45
(f)
where the disclosure is required by or by virtue of any provision made
by or under this Act or any other enactment or other rule of law,

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(g)
to such persons (other than approved regulators) who exercise
regulatory functions as may be prescribed by order made by the Lord
Chancellor, for such purposes as may be so prescribed.
(4)
Subsections (2) and (3) are subject to subsection (5).
(5)
The Lord Chancellor may by order prevent the disclosure of restricted
5
information by virtue of subsection (2) or (3) in such circumstances, or for such
purposes, as may be prescribed in the order.
153
Data protection
In section 31 of the Data Protection Act 1998 (c. 29) (regulatory activity), after
subsection (4B) (inserted by section 170) insert—
10
“(4C)
Personal data processed for the purposes of the function of considering
a complaint under the scheme established under Part 6 of the Legal
Services Act 2007 (legal complaints) are exempt from the subject
information provisions in any case to the extent to which the
application of those provisions to the data would be likely to prejudice
15
the proper discharge of the function.”
Defamation
154
Protection from defamation claims
For the purposes of the law of defamation—
(a)
proceedings in relation to a complaint under the ombudsman scheme
20
are to be treated as if they were proceedings before a court, and
(b)
the publication of any matter by the OLC under this Part is absolutely
privileged.
Scheme rules
155
Consent requirements for rules
25
(1)
Before making scheme rules under any provision of this Part, the OLC must
obtain—
(a)
the consent of the Board, and
(b)
in the case of rules under section 136 (charges payable by respondents),
the consent of the Lord Chancellor.
30
(2)
In subsection (1) the reference to making rules includes a reference to
modifying rules.
156
The Board’s powers in respect of rules
(1)
The Board may direct the OLC to take such steps as are necessary—
(a)
to modify its scheme rules in accordance with such general
35
requirements as are specified in the direction, or
(b)
to make a specified modification to its scheme rules.
(2)
Before giving a direction under subsection (1)(b), the Board must—

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(a)
give the OLC a notice giving details of the proposed modification and
containing a statement that representations about the proposal may be
made to the Board within a period specified in the notice,
(b)
publish a copy of that notice, and
(c)
have regard to any representations duly made.
5
(3)
The following provisions do not apply in relation to any modification made by
the OLC to its rules in compliance with a direction under subsection (1)(b)—
(a)
section 155(1)(a) (requirement to obtain the Board’s consent to rules);
(b)
section 205 (requirement to consult before making rules).
(4)
Where the Board revokes a direction, it must—
10
(a)
give the OLC notice of the revocation, and
(b)
publish that notice.
Effect on existing arrangements for redress etc
157
Approved regulators not to make provision for redress
(1)
The regulatory arrangements of an approved regulator must not include any
15
provision relating to redress.
(2)
If at the time this subsection comes into force the regulatory arrangements of
an approved regulator contravene subsection (1), any provision relating to
redress included in those regulatory arrangements ceases to have effect at that
time, subject to subsection (3).
20
(3)
An order under section 211 which appoints a day for the coming into force of
subsection (2) may include transitional provision in respect of any proceedings
which, immediately before that day are awaiting determination under any
provision relating to redress made by an approved regulator.

This subsection is without prejudice to any other transitional provision which
25
may be made by or under this Act.
(4)
For the purposes of this section “provision relating to redress” means any
provision (whether it is statutory or non-statutory) for redress in respect of acts
or omissions of authorised persons and any provision connected with such
provision.
30
(5)
Nothing in this section prevents an approved regulator making—
(a)
provision in its regulatory arrangements of the kind required by section
112 (requirement for authorised persons to have complaints
procedures etc),
(b)
indemnification arrangements or compensation arrangements, or
35
(c)
provision which by virtue of section 158 is not prohibited by this
section.
(6)
In subsection (4) “authorised person” means an authorised person in relation
to any activity which is a reserved legal activity.
(7)
This section applies to licensing rules made by the Board in its capacity as a
40
licensing authority as it applies in relation to the regulatory arrangements of an
approved regulator.