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Session 2006 - 07 Publications on the internet General Committee Debates Legal Services Bill [Lords] |
Legal Services Bill [Lords] |
The Committee consisted of the following Members:Hannah
Weston, John Benger, Committee
Clerks
†
attended the Committee
Public Bill CommitteeTuesday 26 June 2007(Afternoon)(Part II)[Sir Nicholas Winterton in the Chair]Legal Services Bill [Lords]
[Continuation
from column
432]
8.15
pm
On
resuming—
The
Chairman:
I hope that people feel watered, fed and
refreshed for the final straight of this
match.
Schedule 16The
Law Society, solicitors, recognised bodies and foreign
lawyers
‘After
section 1A insert—
“1B
Restriction on practice as sole
solicitor
(1) Rules under
section 31 (rules as to professional practice etc) must provide that a
solicitor may not practise as a sole solicitor unless he has in
force—
(a) a practising
certificate, and
(b) an
endorsement of that certificate by the Society authorising him to
practise as a sole solicitor (a “sole solicitor
endorsement”).
(2) The
rules may provide that, for the purposes of the rules and this Act, a
solicitor is not to be regarded as practising as a sole solicitor in
such circumstances as may be prescribed by the
rules.
(3) The rules must
prescribe the circumstances in which a solicitor may be regarded by the
Society as suitable to be authorised to practise as a sole
solicitor.”’.
The
Chairman:
With this it will be convenient to take
Government amendments Nos. 45 to 68, Nos. 79 to 81, Nos. 83 to 92, Nos.
95 to 100 and amendment No. 106.
Bridget
Prentice:
The list of amendments is daunting, but they
have been drafted in response to amendments tabled in the other place
on behalf of the Law Society. They create new powers over sole
practitioners similar to existing powers over regulated recognised
bodies. They require solicitors who want to run a sole practice to
apply for endorsement to do so and to be subject to specific regulatory
requirements. They also ensure effective powers over sole
solicitors’
employees.
The purpose
of the amendments is to provide the Law Society with enhanced powers to
regulate sole practitioners and their employees. They bring many of the
Law Society’s powers in relation to sole practitioner firms into
line with its powers over partnerships and LLPs, and sole practitioner
firms are often as large and as complex as recognised bodies. Overall,
the amendments will ensure that all legal services practices are
regulated according to the same principles. The consumers of such
services will receive the same level
of regulatory protection, regardless of whether they obtain legal
services from a sole solicitor or a recognised
body.
Amendment
agreed
to.
Amendments
made: No. 45, in
schedule 16, page 230, line 12, at
end insert—
‘(1A) An
application under this section may include an application for a sole
solicitor
endorsement.’.
No.
46, in
schedule 16, page 230, line 13, after
‘application’, insert ‘under this
section’.
No.
47, in
schedule 16, page 230, line 41, at
end insert
‘(including,
if the certificate has a sole solicitor endorsement, an efficient
practice as a sole
solicitor);’.
No.
48, in
schedule 16, page 231, line 11, after
‘certificate,’,
insert—
‘( ) in relation to
each solicitor who holds a practising certificate, a statement as to
whether there is in force a sole solicitor
endorsement,’.—[Bridget
Prentice.]
Mr.
Bellingham:
I beg to move amendment No. 299, in
schedule 16, page 231, line 22, leave
out from ‘if’ to end of line 27 and insert
‘he has been required by rules
made under section 35(1) to provide an accountant’s report and
has failed to provide such a report within the time period prescribed
under those
rules,’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 305, in
schedule 16, page 232, line 41, leave
out sub-paragraph
(5).
No. 306, in
schedule 16, page 233, line 18, at
end insert—
‘(12) The
decision of the High Court on an appeal under subsection (6) or (9)
shall be
final.’.
No.
307, in
schedule 16, page 233, line 22, at
end insert—
‘( ) in
subsection (2) for “six” substitute
“9”,
( ) in
subsection (4) for “six” substitute
“9”,’.
No.
308, in
schedule 16, page 238, line 28, at
end insert—
‘(3) The rules
may make different provision for different categories of solicitors and
for different
circumstances.’.
No.
309, in
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 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).’.
No.
320, in
schedule 16, page 252, line 44, leave
out paragraph 59 and
insert—
‘59 In
section 69 (action to recover solicitor’s
costs)—
(a) in subsection (1) for
“taxed” substitute
“assessed”,
(b)
for subsection (2)
substitute—
“(2)
The requirements referred to in subsection (1) are that the
bill—
(a) must be
signed—
(i) by the
solicitor, or on his behalf by any employee authorised by the solicitor
to do so;
(ii) if the costs are
due to a firm, by one of the partners of that firm, either in his own
name or in the name of the firm, or on his behalf by any employee
authorised by any partner to do so;
or
(iii) be enclosed in, or
accompanied by, a letter which is so signed and refers to the
bill;
(b) must be delivered to
the party to be charged with the bill,
either—
(i)
personally;
(ii) by being sent
to him by post to, or left for him at, his place of business,
dwelling-house, or last known place of
abode;
(iii) (subject to
subsection (2A)) where he has provided an e-mail address to the
solicitor for that purpose, by being sent to him by e-mail to that
address (and, if he required that any attachment to an e-mail be in any
particular electronic format, in accordance with that requirement);
or
(iv) (subject to subsection
(2A)) where he has provided a fax number to the solicitor for that
purpose, by being sent to him by fax to that number;
and
where a bill is proved to
have been delivered in compliance with those requirements, it shall not
be necessary in the first instance for the solictor to prove the
contents of the bill and it shall be presumed, until the contrary is
shown, to be a bill bona fide complying with this
Act.
(2A) Sub-paragraph (iii)
or (iv) of subsection (2)(b) does not apply if the party to be charged
with the bill has indicated to the solicitor, before the bill is sent,
that he is not willing to accept delivery of a bill sent by the method
in question.
(2B) A bill which
is sent by fax or e-mail is to be treated as having been delivered the
working day after the day on which it was sent (unless the contrary is
proved) and in this subsection “working day” means a day
which is not a Saturday, Sunday, Bank Holiday or other public
holiday,” and
(c) after
subsection (3)
insert—
“(3A) In
subsection (2)(a) where a signature is required, an electronic
signature incorporated into the document shall satisfy this requirement
and an electronic signature is as much of anything in electronic form
as
(a) is incorprated into or
otherwise logically associated with any electronic communication or
electronic data; and
(b) purports to be so incorporated or associated for
the purpose of being used in establishing the authenticity of the
communication or data, the integrity of the communication or data, or
both.”’.
No.
310, in
schedule 16, page 257, line 33, leave
out paragraph (a) and
insert—
‘(a) for
sub-paragraph (1)(a)
substitute—
“(a)
the Society has reason to suspect dishonesty on the part of a
solicitor;”.
(aa) after
that sub-paragraph
insert—
“(aa) the
Society has reason to suspect dishonesty on the part
of—
(i) an employee of a
solicitor, or
(ii) the personal
representatives of a deceased
solicitor,
in connection with
that solicitor’s practice or in connection with any trust of
which that solicitor is or formerly was a
trustee;”,’.
No.
311, in
schedule 16, page 258, line 8, at
end insert—
‘(iii) after
“practice” insert “or has failed or is failing
properly to attend to his
practice”,’.
No.
312, in
schedule 16, page 262, line 18, at
end insert—
‘( ) in
paragraph (d) omit
“such”.’.
No.
313, in
schedule 16, page 262, line 35, at
end insert—
‘(ca) for
recognition to be made subject to such conditions as the Council at any
time sees fit to impose in such circumstances as are specified in the
rules;
(cb) for the Society to
require, in such circumstances as may be specified in the rules,
recognised bodies to satisfy the Society as to their continuing
suitability to be recognised under this
section;’.
No.
314, in
schedule 16, page 263, line 20, at
end insert—
‘( ) Rules made
by the Council under subsection (1) and (2) may make different
provision for different categories of person or body and for different
circumstances.’.
No.
315, in
schedule 16, page 264, line 16, at
end insert
‘and, if any
such person is a body corporate, it also includes a manager of that
body
corporate’.
No.
316, in
schedule 16, page 264, line 21, at
end
insert—
‘“solicitor
business” means a business consisting of or including solicitor
services;’.
No.
317, in
schedule 16, page 267, line 35, at
end
insert—
‘“body”
includes an individual who is carrying on a business as a sole
principal;’.
No.
318, in
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”.’.
No.
319, in
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),’.
Mr.
Bellingham:
Schedule 16 rewrites the Solicitors Act 1974.
It contains a great deal, including measures about practising
certificates and the registration of holders. The issues include fees
payable for practising certificates, measures about the roll or
register as evidence and unqualified persons acting as solicitors. In
fact, the schedule is a complete rewrite of the 1974 Act. When it comes
to such large schedules, we have to take the Government at their word
and give them the benefit of the doubt. We must also consult outside
organisations, which is exactly what we have
done.
The Government
have responded satisfactorily to all the probing amendments tabled in
the other place. Sarah Rivers of the Solicitors Regulation Authority
has said:
“The
SRA is broadly pleased with the substantial number of amendments that
have been made to modernise our regulatory powers throughout the course
of the Legal Services Bill’s passage in Parliament. We are
especially grateful to the Conservative Front Bench, in tabling these
technical amendments, for their help to achieve this.”
The SRA is particularly grateful to Lord
Kingsland and Lord Hunt. There is only one outstanding issue. I am
grateful that the Government have listened, because these are very
technical and complicated amendments. As I have mentioned, we are
effectively rewriting an earlier piece of legislation—I would
not recommend doing that on a regular basis. We could almost have had a
completely new solicitors Bill, but the Government decided to do it a
different way by virtue of this
schedule.
Amendment
No. 307 seeks to provide for a longer period in which a solicitor can
be suspended pending referral to the Solicitors Disciplinary Tribunal.
The Government have made it clear that there are problems with the
amendment. It is the only amendment that we have tabled that the
Government have not been able to act on positively. Will the Minister
tell us why that
is?
This is really a
congratulatory effort on my part. I would like to thank the Minister
for listening to organisations such as the Law Society, the SRA and
other bodies, which have had a constructive and imaginative input into
the debate. As a consequence, we have a better and more effective
schedule.
Having said
that I was only going to talk for four minutes, I have now spoken for
three minutes and 45 seconds. I will sit down, but once again, I want
to thank the Minister and her team for listening very carefully and
responding in a positive and helpful way—I wish that Ministers
would do that the whole time. Fortunately, they do it from time to
time, and when they do, we must congratulate and thank
them.
Bridget
Prentice:
I would like to reassure the hon.
Gentleman about amendment No. 307. We felt that it was not appropriate
to extend the suspension from 12 to 18 months. Obviously, the SRA needs
to be equipped to protect consumers from solicitors who have been
convicted of fraud or serious crime. The amendment, however, might have
had the undesirable effect of reducing incentives for the Law Society
and the tribunal to deal with disciplinary cases swiftly. The SRA
accepts that our concerns about long delays are important, and it has
asked that the amendment is not pressed.
Simon
Hughes:
As the hon. Member for North-West Norfolk has
said, this group and later groups of amendments concern the substantive
law that governs the professions. The Law Society has promoted some of
the changes, which the Minister picked up on. Have other people who
might have an interest been consulted? We must be satisfied that there
is broader confirmation that the Government are going in the right
direction and that there are not any objections. I have understood the
main objections, but I do not pretend to have my head round every
single implication of all the changes to all the other Acts.
The Department has consulted
people other than just the Law Society; it is satisfied this group of
amendments and the other groups contain nothing that will cause anybody
difficulty; and the amendments are all improvements to put the relevant
houses in good
order.
Mr.
Bellingham:
I am grateful to the Minister for what she has
explained to the Committee. I am satisfied about that one outstanding
amendment, and I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Amendments
made: No. 49, in
schedule 16, page 231, line 40, after
‘application’, insert ‘for a practising
certificate,
( ) if the application
included an application for a sole solicitor endorsement, a decision to
refuse the application for the
endorsement’.
No.
50, in
schedule 16, page 232, line 6, leave
out ‘for a practising certificate’ and insert
‘under section
9’.
No. 51, in
schedule 16, page 232, line 11, at
end insert—
‘( ) direct the
Society to make a sole solicitor endorsement on the applicant’s
practising certificate and to issue that certificate subject to such
conditions (if any) as the High Court may think
fit,’.
No.
52, in
schedule 16, page 232, line 16, after
‘it,’,
insert—
‘( ) if the
certificate has been endorsed with a sole solicitor endorsement, by
order suspend the
endorsement,’.
No.
53, in
schedule 16, page 232, line 26, at
end
insert—
‘After
section 13
insert—
“13ZA
Application to practise as sole practitioner while practising
certificate in force
(1) A
solicitor whose practising certificate for the time being in force (his
“current certificate”) does not have a sole solicitor
endorsement, may apply to the Society for such an
endorsement.
(2) For the
purposes of subsection (1) a practising certificate with a sole
solicitor endorsement which is suspended is to be treated as having
such an endorsement.
(3) A
solicitor may not apply under subsection (1) if he is suspended from
practice as a sole
solicitor.
(4) An application
must be—
(a) made in
accordance with regulations under section 28,
and
(b) accompanied by any fee
payable under section 13ZB in respect of the endorsement applied
for.
(5) Where a sole solicitor
endorsement is granted to an applicant of a prescribed description, the
applicant’s practising certificate shall have effect subject to
any conditions prescribed in relation to applicants of that
description.
“Prescribed”
means prescribed by regulations under section
28(3B)(ea).
(6) A person who makes an application under this
section may appeal to the High Court
against—
(a) a decision
to refuse the application,
or
(b) a decision to impose a
condition on a practising certificate in accordance with subsection
(5).
(7) The Society may by
rules make provision, as respects any application under this section
that is neither granted nor refused by the Society within such period
as may be specified in the rules, for enabling an appeal to be brought
under this section in relation to the application as if it had been
refused by the Society.
(8) On
an appeal under this section the High Court
may—
(a) affirm the
decision of the Society,
(b)
direct the Society to grant a sole solicitor
endorsement,
(c) direct that
the applicant’s practising certificate is to have effect subject
to such conditions (if any) as the High Court thinks fit,
or
(d) make such other order as
the High Court thinks fit.
(9)
In relation to an appeal under this section the High Court may make
such order as it thinks fit as to payment of
costs.
(10) The decision of the
High Court on an appeal under this section shall be
final.
13ZB Fee payable on
making of sole solicitor
endorsement
(1) Before a sole
solicitor endorsement is granted under section 13ZA, there must be paid
to the Society in respect of the endorsement a fee of such amount as
the Society may from time to time
determine.
(2) Different fees
may be specified for different categories of applicant and in different
circumstances.
(3) If a fee
payable under this section would not otherwise be a practising fee for
the purposes of section 51 of the Legal Services Act 2007, it is to be
treated for the purposes of that section as such a
fee.
(4) In subsection (3)
“practising fee” has the meaning given by that
section.”’.
No.
54, in
schedule 16, page 232, line 32, after
‘if’,
insert—
‘(a) under section
13ZA the Society grants a sole solicitor endorsement,
or
(b)
’.
No.
55, in
schedule 16, page 233, line 22, at
end insert—
‘( ) in
subsection (1), after “practising certificate” insert
“or sole solicitor
endorsement”,
( ) in
subsection (6), after “practice” insert “or from
practice as a sole
solicitor”,’.
No.
56, in
schedule 16, page 233, line 26, after
‘Court”,’
insert—
‘( ) in paragraph
(b), for “shall not be suspended but” substitute
“or sole solicitor endorsement shall not be suspended, but that
the appellant’s
certificate”,’.
No.
57, in
schedule 16, page 234, line 12, at
end insert—
‘After
section 17 insert—
“17A
Suspension of sole solicitor
endorsement
(1) The making by
the Tribunal or by the court of an order suspending a solicitor from
practice as a sole solicitor shall operate to suspend any sole
solicitor endorsement of that solicitor for the time being in
force.
(2) For the purposes of
this Act, a sole solicitor endorsement shall be deemed not to be in
force at any time while it is
suspended.
(3) Subsection (2)
is subject to section
13ZA(2).
17B Duration and
publicity of suspension of sole solicitor
endorsement
(1) Where a sole solicitor endorsement is suspended,
it expires on such date as may be prescribed by regulations under
section 28.
(2) Where a
solicitor’s sole solicitor endorsement is
suspended—
(a) by an
order under section 13(4),
or
(b) by virtue of section
17A(1) in circumstances where the period of that suspension expires
before the date on which his endorsement will
expire,
the solicitor may at
any time before the endorsement expires apply to the Society to
terminate the suspension.
(3)
Section 16(4) to (7) apply in relation to an application under
subsection (2) as they apply in relation to an application under
section 16(3).
(4) Where a
solicitor’s sole solicitor endorsement is suspended by an order
under section 13(4) or by virtue of section 17A(1), the Society shall
forthwith cause notice of that suspension to be published and a note of
it to be entered against the name of the solicitor on the
roll.
(5) Where any suspension
is terminated by virtue of section 16(4) or (5), as applied by
subsection (3) of this section, the Society shall forthwith cause a
note of that termination to be entered against the name of the
solicitor on the roll and, if so requested in writing by the solicitor,
a notice of it to be
published.”’.
No.
58, in
schedule 16, page 235, line 6, after
‘them”,’
insert—
‘( ) after that
paragraph
insert—
“(ca)
sole solicitor endorsements and applications for
them,”’.
No.
59, in
schedule 16, page 235, line 22, after
‘certificates’, insert ‘or sole solicitor
endorsements’.
No.
60, in
schedule 16, page 235, line 24, after
‘certificates’, insert ‘or sole solicitor
endorsements’.
No.
61, in
schedule 16, page 235, line 36, at
end insert—
‘(ea) prescribe
descriptions of applicants, and conditions in relation to them, for the
purposes of section 13ZA(5) (circumstances in which a practising
certificate endorsed with a sole solicitor endorsement after it was
issued must be made subject to prescribed
conditions);’.
No.
62, in
schedule 16, page 235, line 47, after
‘certificates’, insert ‘or sole solicitor
endorsements’.
No.
63, in
schedule 16, page 237, line 33, at
end insert ‘, and
(c) after
“solicitor” (in both places) insert “or any of his
employees”.’.
No.
64, in
schedule 16, page 239, line 7, at
end insert—
‘After
section 34
insert—
“Sole
solicitors
34A Employees of
solicitors
(1) Rules made by
the Society may provide for any rules made under section 31, 32, 33A or
34 to have effect in relation to employees of solicitors with such
additions, omissions or other modifications as appear to the Society to
be necessary or expedient.
(2)
If any employee of a solicitor fails to comply with rules made under
section 31 or 32, as they have effect in relation to the employee by
virtue of subsection (1), any person may make a complaint in respect of
that failure to the
Tribunal.
(3) If any employee
of a solicitor fails to comply with rules made under section 34, as
they have effect in relation to the employee by virtue of subsection
(1), a complaint in respect of that failure may be made to the Tribunal
by or on behalf of the Society.
34B Employees of solicitors: accounts rules
etc
(1) Where rules made under
section 32(1) have effect in relation to employees of solicitors by
virtue of section 34A(1), section 85 applies in relation to an employee
to whom the rules have effect who keeps an account with a bank or
building society in pursuance of such rules as it applies in relation
to a solicitor who keeps such an account in pursuance of rules under
section 32.
(2)
Subsection (3) applies where rules made under section
32—
(a) contain any such
provision as is referred to in section 33(1),
and
(b) have effect in relation
to employees of solicitors by virtue of section
34A(1).
(3) Except as provided
by the rules, an employee to whom the rules are applied is not liable
to account to any client, other person or trust for interest received
by the employee on money held at a bank or building society in an
account which is for money received or held for, or on account
of—
(a) clients of the
solicitor, other persons or trusts, generally,
or
(b) that client, person or
trust, separately.
(4)
Subsection (5) applies where rules made under section 33A(1) have
effect in relation to employees of solicitors by virtue of section
34A(1).
(5) The Society may
disclose a report on or information about the accounts of any employee
of a solicitor obtained in pursuance of such rules for
use—
(a) in
investigating the possible commission of an offence by the solicitor or
any employees of the solicitor,
and
(b) in connection with any
prosecution of the solicitor or any employees of the solicitor
consequent on the
investigation.
(6) Where rules
made under section 34 have effect in relation to employees of
solicitors by virtue of subsection (1), section 34(9) and (10) apply in
relation to such an employee as they apply in relation to a
solicitor.”’.
No.
65, in
schedule 16, page 242, line 45, at
end insert—
‘(ia) no
employee of a solicitor shall employ or remunerate, in connection with
the solicitor’s practice, the person with respect to whom the
order is
made,’.
No.
185, in
schedule 16, page 243, line 45, leave
out ‘in
shares’.
No.
66, in
schedule 16, page 244, line 6, after
‘solicitor’, insert
‘, or an employee of a
solicitor,’.
No.
67, in
schedule 16, page 244, line 8, after
‘solicitor’, insert ‘or
employee’.
No.
186, in
schedule 16, page 244, line 38, leave
out ‘in
shares’.
No.
187, in
schedule 16, page 245, line 5, leave
out ‘in
shares’.
No.
68, in
schedule 16, page 245, line 11, after
‘solicitor’, insert
‘or an employee of a
solicitor’.—[Bridget
Prentice.]
Bridget
Prentice:
I beg to move amendment No. 69, in
schedule 16, page 245, line 38, after
‘purpose’, insert
‘—
(a)
’.
The
Chairman:
With this it will be convenient to take the
following Government amendments Nos. 70 to 77,
Government
amendment No. 78, in
schedule 16, page 248, line 39, at
end insert—
‘After
that section insert—
44D
Disciplinary powers of the
Society
(1) This section
applies where the Society is
satisfied—
(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—
(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.
(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
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
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,
(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 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 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.
(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.
(10) The Lord
Chancellor may, by order, amend paragraph (b) of 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.
(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
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
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 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 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 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;
(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 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 of the
Society or the person in respect of whom the order of the Tribunal was
made.
(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.
(9) This section is
without prejudice to any power conferred on the Tribunal in connection
with an application or complaint made to
it.”’.
No.
(a), in 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.’.
No.
(b), in line 81, at end
insert—
‘( ) vary the
decision of the
Society;’.
Government
amendment No. 82
Government amendment No.
93
Government
amendment No. 94, in
schedule 16, page 273, line 38, at
end insert—
‘After
that paragraph
insert—
“Disciplinary
powers of the Society
14B (1) This
paragraph applies where the Society is satisfied that a recognised
body, or a manager or employee of a recognised body, has failed to
comply with a requirement imposed by or by virtue of this Act or any
rules applicable to that person by virtue of section 9 of this
Act.
(2) The Society may do one or both of the
following—
(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 sub-paragraph
(2)(a) or (b), if it considers it to be in the public interest to do
so.
(4) Where the Society takes
action against a person under sub-paragraph (2)(b), or decides to
publish under sub-paragraph (3) details of such action under
sub-paragraph (2)(a) or (b), it must notify the person in writing that
it has done so.
(5) A penalty
imposed under sub-paragraph (2)(b) does not become payable
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 paragraph 14C,
or
(b) if such an appeal is
made, such time as it is determined or
withdrawn.
(6) The Society may
not publish under sub-paragraph (3) details of any action under
sub-paragraph (2)(a) or
(b)—
(a) during the
period within which an appeal
against—
(i) the
decision to take the
action,
(ii) in the case of
action under sub-paragraph (2)(b), the amount of the penalty,
or
(iii) the decision to
publish the details,
may be
made under paragraph 14C,
or
(b) if such an appeal has
been made, until such time as it is determined or
withdrawn.
(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;
(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.
(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-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.
(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 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;
(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).
(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)” 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.
(4) On an appeal under
this paragraph, the Tribunal has power to make 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;
(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);
(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 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.
(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 Tribunal in connection
with an application or complaint made to
it.”’.
No.
(a), in 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.’.
No.
(b), in line 81, at end
insert—
‘( ) varies the
decision of the
Society;’.
Bridget
Prentice:
Again, I hope to speak briefly to the
amendments, which are technical. They would provide the scope of the
Law Society’s powers, so that they were properly applied to the
correct persons. The power to rebuke and to fine is an important one,
and the approved regulators must be able to take appropriate action
against those whom they regulate. The powers in the amendments would
allow the society to act quickly and effectively when its rules are
breached and when there is a finding of professional misconduct against
a solicitor.
The intention is that
more minor rule breaches and professional misconduct would be dealt
with by the Law Society, while the solicitors disciplinary tribunal
would determine the more serious cases. The SDT would have an unlimited
power to fine, but the maximum penalty for the Law Society would be
£2,000.
8.30
pm
Mr.
Bellingham:
The Conservatives support the amendments. They
are spot on and we thank the Minister for tabling them.
[
Interruption.
] I was put off by that noise, Sir
Nicholas, but I said that we support the
amendments.
The
Chairman:
My attention was also diverted; I trust that the
instrument has now been switched off. I do not know whose it
was—
The
Chairman:
It is in order to speak to them; if you wish to
move them formally, that will come
later.
Amendment (a) would make a
technical change to Government amendment No. 78. It would change the
obligation to publish from one that would need a positive step to be
taken to an obligation to consider that it would not be in the public
interest to publish. It is a subtle but important change and would
result in an automatic presumption that things would be put in the
public domain rather than it having to be proven in each case. It would
assist good working to ensure that, unless there was good reason not to
do so, everything would be put in the public domain. I am sure that the
Minister will be fully convinced by the logic of my argument.
Amendment (b) would allow the
variation by a tribunal of decisions of the Law Society. That is
important, because if the tribunal has to decide yea or nay—all
or nothing—there would be more danger of a clever solicitor
making a defence that was partially convincing. There would thus be
more likelihood of the tribunal saying no, even on a technicality,
because it would have no option. In such instances, the tribunal ought
to be able to make a halfway determination. It strikes me that the
balance would otherwise always be with the clever or technical
argument, which could dominate tribunal decisions, whereas allowing a
variation would mean that the tribunal could determine whatever it
chose, based on all the facts.
Bridget
Prentice:
I imagine that we agree that there ought to be
transparency in the Law Society’s decision making process. In
many circumstances, it will clearly be in the public interest to
publish once a fine or rebuke has been issued. However, I am not sure
that it should be the default position for disciplinary action of that
type to be published automatically. As it happens, I am not convinced
that amendment (a) would achieve automatic publication unless it was
not in the public interest, because it states that the Law Society
“may” publish.
Given the intention behind my
hon. Friend’s amendment, I shall explain our view. We believe
that due consideration should be given in each case. However, it is
more appropriate and probably more proportionate to take action as set
out in Government amendments Nos. 78 and 94, in which it is anticipated
that the Law Society would at the time of the determination consider
whether or not it was in the public interest to publish. That leads to
the idea that it may not necessarily be appropriate to publish
determinations.
My
hon. Friend’s other amendment would allow the tribunal
to
“vary the decision of
the Society”.
I entirely
agree with that position, but Government amendments Nos. 78 and 94
already provide the tribunal with a large number of powers, which can
be exercised on appeal. They amount to the ability to vary or replace
every aspect of a decision that has been appealed. That includes the
power to vary the penalty and to make such an order as it sees fit.
That gives the tribunal the scope to
“vary the decision of the
society”
that my hon.
Friend
seeks.
Government
amendment No. 94 also contains a range of powers that is sufficient to
consider an appeal, including the power to vary the amount of the
penalty. I hope that those amendments, which give the tribunal wide
scope, cover the proper concerns that my hon. Friend raised. I
therefore ask him not to press his amendments to a
vote.
Amendment
agreed
to.
Amendments
made: No. 70, in
schedule 16, page 245, line 49, 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.”’.
No.
71, in
schedule 16, page 246, line 15, leave
out ‘reference’ and insert
‘references’.
No.
72, in
schedule 16, page 246, line 15, after
‘9(5)’, insert ‘and
(6)’.
No. 73,
in
schedule 16, page 246, line 22, at
end insert—
‘(7A) Where
powers conferred by Part 2 of Schedule 1 to the 1974 Act are
exercisable in relation to a person within paragraph (a), (b), (c) or
(d) of subsection (2), they continue to be so exercisable after the
person has ceased to be a person within the paragraph in
question.’.
No.
188, in
schedule 16, page 246, line 28, leave
out ‘in
shares’.
No.
74, in
schedule 16, page 246, line 41, after
‘purpose’, insert
‘—
(a)
’.
No.
75, in
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.”’.
No.
76, in
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.’.
No.
77, in
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.’.
No.
78, in
schedule 16, page 248, line 39, at
end insert—
‘After
that section
insert—
“Disciplinary
powers of the Society
44D Disciplinary
powers of the Society
(1) This
section applies where the Society is
satisfied—
(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—
(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.
(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
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
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,
(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 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 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.
(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.
(10) The Lord
Chancellor may, by order, amend paragraph (b) of 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.
(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
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
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 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 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 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;
(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 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 of the
Society or the person in respect of whom the order of the Tribunal was
made.
(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.
(9) This section is
without prejudice to any power conferred on the Tribunal in connection
with an application or complaint made to
it.”’.
No.
79, in
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;”,’.
No.
80, in
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—
(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.”,’.
No.
81, in
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)
’.
No.
82, in
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.”’.
No.
83, in
schedule 16, page 250, line 13, after
‘(e)’, insert ‘,
(ea)’.
No. 84,
in
schedule 16, page 251, line 20, after
‘(5)’, insert
‘—
(a)
’.
No.
85, in
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).”’.
No.
86, in
schedule 16, page 251, line 43,
leave out ‘negligence’ and insert
‘his negligence, or that of any
employee of
his,’.
No. 87,
in
schedule 16, page 252, line 27, at
end insert ‘, and
(iii) after
“solicitor” (in the third place) insert “, or any
of his
employees,’.
No.
88, in
schedule 16, page 252, line 39, at
end insert—
‘(d) in
paragraph (a), after “solicitor” (in the second place)
insert “or an employee of the solicitor”,
and
(e) in paragraph (b), after
“him” insert “or by any employee of his who is an
authorised person (within the meaning of section
56(5A))”.’.
No.
89, in
schedule 16, page 257, line 21, after
‘32(1)(a)”,’
insert—
‘( ) after the
definition of “sole solicitor”
insert—
““sole
solicitor endorsement” has the same meaning as in section
1B;”’.
No.
90, in
schedule 16, page 257, line 35, at
end insert—
‘( ) after
“trustee” insert “or that employee is or was a
trustee in his capacity as such an
employee”,’.
No.
91, in
schedule 16, page 258, line 33, leave
out paragraph (b) and
insert—
‘(b) for paragraph
(a)
substitute—
“(a)
the Society is satisfied that there has been undue
delay—
(i) on the part
of a solicitor in connection with any matter in which the solicitor or
his firm is or was acting on behalf of a client or with any trust,
or
(ii) on the part of an
employee of a solicitor in connection with any trust of which the
employee is or was a trustee in his capacity as such an employee;
and”,’.
No.
92, in
schedule 16, page 259, line 1, leave
out paragraph (b) and
insert—
‘(b) in
sub-paragraph (2)(a) for “his practice” to the end
substitute—
“(i)
his practice or former
practice,
(ii) any trust of
which he is or formerly was a trustee,
or
(iii) any trust of which a
person who is or was an employee of the solicitor is or was a trustee
in the person’s capacity as such an employee;”,
and’.
No.
191, in
schedule 16, page 265, line 45, after
‘managers’, insert ‘or
employees’.
No.
193, in
schedule 16, page 266, line 4, leave
out ‘in
shares’.
No.
194, in
schedule 16, page 270, line 42, at
end insert
‘, and for
this purpose a person has an interest in the body if he 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).’.
No.
195, in
schedule 16, page 272, line 10, leave
out ‘in
shares’.
No.
196, in
schedule 16, page 272, line 35, leave
out ‘in shares’.
No. 93, in
schedule 16, page 273, line 3, at
end insert—
‘( ) Where
powers conferred by Part 2 of Schedule 1 to the 1974 Act are
exercisable in relation to a person within paragraph (a), (b) or (c) of
sub-paragraph (3), they continue to be so exercisable after the person
has ceased to be a person within the paragraph in
question.’
No.
94, in
schedule 16, page 273, line 38, at
end insert—
‘After
that paragraph
insert—
“Disciplinary
powers of the Society
14B (1) This
paragraph applies where the Society is satisfied that a recognised
body, or a manager or employee of a recognised body, has failed to
comply with a requirement imposed by or by virtue of this Act or any
rules applicable to that person by virtue of section 9 of this
Act.
(2) The Society may do one
or both of the
following—
(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 sub-paragraph
(2)(a) or (b), if it considers it to be in the public interest to do
so.
(4) Where the Society takes
action against a person under sub-paragraph (2)(b), or decides to
publish under sub-paragraph (3) details of such action under
sub-paragraph (2)(a) or (b), it must notify the person in writing that
it has done so.
(5) A penalty
imposed under sub-paragraph (2)(b) does not become payable
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 paragraph 14C,
or
(b) if such an appeal is
made, such time as it is determined or
withdrawn.
(6) The Society may
not publish under sub-paragraph (3) details of any action under
sub-paragraph (2)(a) or
(b)—
(a) during the
period within which an appeal
against—
(i) the
decision to take the
action,
(ii) in the case of
action under sub-paragraph (2)(b), the amount of the penalty,
or
(iii) the decision to
publish the details,
may be
made under paragraph 14C,
or
(b) if such an appeal has
been made, until such time as it is determined or
withdrawn.
(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;
(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.
(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-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.
(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 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;
(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).
(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)”
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.
(4) On an appeal under
this paragraph, the Tribunal has power to make 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;
(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);
(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 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.
(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 Tribunal in connection
with an application or complaint made to
it.”’.
No.
95, in
schedule 16, page 275, line 29, after
‘solicitor’, insert ‘or employee of a
solicitor’.
No.
96, in
schedule 16, page 275, line 30, leave
out ‘his practice as a’ and insert ‘the practice
carried on by
that’.
No. 197,
in
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).’.
No. 97, in
schedule 16, page 277, line 2, after
‘solicitor’, insert
‘or any employee of the solicitor
who is an authorised
person’.
No.
98, in
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.’.
No.
99, in
schedule 16, page 280, line 35, leave
out ‘or
employee’.
No.
100, in
schedule 16, page 280, line 37, leave
out ‘or employee’.—[Bridget
Prentice.]
Bridget
Prentice:
I beg to move amendment No. 101, in
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)
’.
The
Chairman:
With this, it will be convenient to discuss
Government amendments Nos. 102, 18 to 27, 103 to 105 and
107.
Bridget
Prentice:
The amendments ensure that the provisions in the
Bill and in five other statutory provisions are consistent with the
common law on legal professional privilege. The Bill already provides
that the clients of ABS firms should have the same degree of LPP
protection as the clients of any other type of legal service provider.
That was set out in what used to be subsections (3) to (7) of clause
182.
However,
both the Bar Council and the Law Society raised the possibility that
certain terms in that provision might not reflect fully the current
state of the common law of LPP. The wording reflected similar wording
used in other statutory provisions that ensure LPP protection for
clients of certain legal services providers, such as recognised bodies
and licensed conveyancers. We have looked carefully at that and have
decided to modify what is now clause 191, as well as the other relevant
provisions.
The
amendments essentially do two things. First, they remove the reference
to legal proceedings in the relevant provisions, because the law
provides clients with LPP protection in certain circumstances outside
of legal proceedings. Secondly, they expand the reference to
communication, because again the law provides clients with LPP
protection in certain circumstances, regarding not only communications
but documents, material or other
information.
Therefore
the amendments ensure LPP protection for the clients of ABS firms, so
that firms do not operate at a competitive disadvantage compared with
other types of provider. They essentially modify five earlier
provisions about LPP. Those provisions ensure protection for the
clients of other legal service providers, licensed conveyancers, bodies
recognised by the Council for Licensed Conveyancers, bodies recognised
by the Law Society, patent attorneys, trade mark attorneys and certain
authorised practitioners under the Courts and Legal Services Act
1990.
Together the amendments ensure
that clients of all of those providers have the LPP protection
equivalent to the clients of solicitors. That means that both types of
clients are equally protected, no matter where they go for legal
services, and no type of provider will get a competitive advantage over
other providers as a result.
The hon. Member for
North Southwark and Bermondsey asked about consultation. We have
consulted not only the legal professions but the consumer
organisations, too. I express particular thanks to both the Bar Council
and the Law Society. I suspect that most people would say that that
would be an unusual thing for me to do, but in this instance they have
been extremely helpful. The Bar Council even went so far as to provide
opinion from a legal expert on the subject, which was shared with us,
and that opinion informed our reconsideration of the amendments. The
Law Society has also provided valuable input. It is a good example of
how a co-operative approach can achieve the desired result, for which I
am grateful to them
all.
8.45
pm
Simon
Hughes:
Thank you, as always, Sir Nicholas, for conducting
what is not the most easy stage of our proceedings in such an extremely
professional
manner.
Everyone
will be reassured by what the Minister said in response to my general
point about the amendments. People will be reassured that the Minister
has the confidence of both key professional bodies and others who were
consulted, who all signed up and came to an agreement. Changing the
small print can sometimes conceal a multitude of unexpected
consequences, but if all those brains and interests have come together
to say that the proposal is wonderful, who are we to presume
otherwise?
Amendment
agreed
to.
Bridget
Prentice:
I beg to move amendment No. 324, in
schedule 16, page 281, line 40, leave
out ‘and’ and
insert—
‘( ) in that
subsection for “officers” substitute
“managers”,
and’.
Bridget
Prentice:
These amendments are even more straightforward
than the previous ones. They replace references in the Courts and Legal
Services Act 1990 to “officers” of recognised bodies with
“managers” of recognised bodies, ensuring consistency
with previous amendments to the Administration of Justice Act 1985. The
hon. Member for North Southwark and Bermondsey will be pleased that at
least the terminology used in relation to Law Society regulated
practices is consistent in those two
Acts.
Amendment
agreed
to.
Amendment
made: No. 325, in
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);”.’.—[Bridget
Prentice.]
Schedule
16, as amended, agreed to.
Simon
Hughes:
On a point of order, Sir Nicholas. I want to ask
one or two brief questions about clauses 182, 192, 194, 195 and 198, to
which there are no amendments. I hope that that is helpful to the
Committee.
Clauses
179 to 181 ordered to stand part of the
Bill.
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