Office of Public Sector Information
SCHEDULE 16 continued PART 1 continued
(5) The Society may pay to any person such reasonable costs as may be incurred by that person in connection with the provision of any information, or production of any document, by that person pursuant to a notice under this section.
(6) Paragraphs 9(3) and (4) and 13, 15 and 16 of Schedule 1 apply in relation to the powers to obtain information conferred by this section, but for this purpose—
(a) paragraph 9 of that Schedule has effect as if—
(i) in sub-paragraph (3) for “such documents” there were substituted “information to which a notice given to him under section 44B applies”,
(ii) in that sub-paragraph for “sub-paragraph (1)” there were substituted “the notice”, and
(iii) in sub-paragraph (4) for “produce” (in the first place) to the end there were substituted “provide information pursuant to a notice under section 44B to provide the information to any person appointed by the Society at such time and place as may be specified in the order.”, 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.
(7) Paragraphs 9 (other than sub-paragraphs (1) and (3)), 12, 13, 15 and 16 of Schedule 1 apply in relation to the powers to obtain documents conferred by this section as they apply in relation to the powers conferred by paragraph 9(1) of that Schedule, except that for this purpose—
(a) any reference in paragraph 9 of that Schedule to a person appointed, or to a requirement, under sub-paragraph (1) of that paragraph is to be construed as a reference to a person appointed, or to a requirement to produce documents, under this section,
(b) any reference in that paragraph to any such documents as are mentioned in paragraph 9(1) of that Schedule is to be construed as a reference to any documents to which a notice under this section applies,
(c) the references to the solicitor or his firm in paragraph 9(5) and (6) of that Schedule, and the reference to the solicitor or personal representative in paragraph 9(7) of that Schedule, are to be construed as references to the person to whom the notice was given under this section, and
(d) the reference in paragraph 9(12) of that Schedule to the Society is to be construed as including a reference to a person specified under subsection (4)(c).
(8) 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.
(9) In this section—
“manager” has the same meaning as in the Legal Services Act 2007 (see section 207 of that Act);
“recognised body” means a body recognised under section 9 of the Administration of Justice Act 1985;
and the reference to a person who has an interest in a recognised body is to be construed in accordance with sections 72 and 109 of the Legal Services Act 2007.
(1) The Society may, by notice, require a person to whom a notice is given under section 44B (or a representative of the person) to attend at a time and place specified in the notice to provide an explanation of any information provided or document produced pursuant to the notice.
(2) The Society may pay to any person such reasonable costs as may be incurred by that person in connection with that person’s compliance with a requirement imposed under subsection (1).
(3) Paragraphs 9(3) and (4) and 13, 15 and 16 of Schedule 1 apply in relation to a notice under this section, except that for this purpose—
(a) paragraph 9 of that Schedule has effect as if—
(i) in sub-paragraph (3) for “having” to “sub-paragraph (1)” there were substituted “refuses, neglects or otherwise fails to comply with a requirement under section 44BA(1)”, and
(ii) in sub-paragraph (4) for “produce” (in the first place) to the end there were substituted “provide an explanation of any information provided or document produced pursuant to a notice under section 44B (or a representative of such a person) to attend at a time and place specified in the order to provide an explanation of any information so provided or document so produced.”, 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.
(1) The High Court, on the application of the Society, may order a person to whom section 44B does not apply—
(a) to provide information, or information of a description, specified in the notice, or
(b) to produce documents, or documents of a description, specified in the notice.
(2) The High Court may make an order under this section only if it is satisfied—
(a) that it is likely that the information or document is in the possession or custody of, or under the control of, the person, and
(b) that there is reasonable cause to believe that the information or document is likely to be of material significance to an investigation into any of the matters mentioned in section 44B(3)(a) to (d).
(3) An order under this section may direct the Society to pay to a person specified in the order such reasonable costs as may be incurred by that person in connection with the provision of any information, or production of any document, by that person pursuant to the order.
(4) Section 44B(4) applies in relation to an order under this section as it applies in relation to a notice under section 44B.
(5) Paragraphs 9(5A) and (7) to (12), 12, 13, 15 and 16 of Schedule 1 apply in relation to an order under this section as they apply in relation to an order under paragraph 9(4) of that Schedule, except that for this purpose—
(a) the reference to the solicitor or personal representative in paragraph 9(7) of that Schedule is to be construed as a reference to the person in respect of whom the order under this section is made,
(b) the reference in paragraph 9(12) of that Schedule to the Society is to be read as including a reference to a person specified under section 44B(4)(c) (as applied by subsection (4) of this section), 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.
(1) It is an offence for a person who knows or suspects an investigation into any of the matters mentioned in section 44B(3)(a) to (d) is being or is likely to be conducted—
(a) to falsify, conceal, destroy or otherwise dispose of a document which the person knows or suspects is or would be relevant to the investigation, or
(b) to cause or permit the falsification, concealment, destruction or disposal of such a document.
(2) In proceedings for an offence under subsection (1) it is a defence for the accused to show that the accused had no intention of concealing facts disclosed by the documents from the person conducting the investigation.
(3) It is an offence for a person, in purported compliance with a requirement imposed on the person under section 44B, 44BA or 44BB—
(a) to provide information which the person knows to be false or misleading in a material particular, or
(b) recklessly to provide information which is false or misleading in a material particular.
(4) A person who is guilty of an offence under subsection (1) or (3) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.
(5) In relation to an offence under subsection (1) or (3) committed before the commencement of section 154(1) of the Criminal Justice Act 2003 the reference in subsection (4)(a) to 12 months is to be read as a reference to 6 months.”
45 For section 44C (payment of costs of investigations) substitute—
(1) The Society may make regulations prescribing charges to be paid to the Society by solicitors who are the subject of a discipline investigation.
(2) A “discipline investigation” is an investigation carried out by the Society into—
(a) possible professional misconduct by a solicitor, or
(b) a failure or apprehended failure by a solicitor to comply with any requirement imposed by or by virtue of this Act or any rules made by the Society.
(3) Regulations under this section may—
(a) make different provision for different cases or purposes;
(b) provide for the whole or part of a charge payable under the regulations to be repaid in such circumstances as may be prescribed by the regulations.
(4) Any charge which a solicitor is required to pay under regulations under this section is recoverable by the Society as a debt due to the Society from the solicitor.
(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.”
46 After that section insert—
(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.
(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.”
47 (1) Section 46 (solicitors disciplinary tribunal) is amended as follows.
(2) For subsection (5) substitute—
“(5) The Tribunal may pay its members such remuneration, fees or allowances as it may determine with the approval of the Legal Services Board.”
(3) After that subsection insert—
“(5A) The Tribunal may do anything calculated to facilitate, or incidental or conducive to, the carrying out of any of its functions.”
(4) Omit subsections (6) to (8).
(5) In subsection (9)—
(a) for “Subject to subsections (6) to (8), the” substitute “The”,
(b) omit “, with the concurrence of the Master of the Rolls,”, and
(c) in paragraph (b) after “complaints” insert “(including provision about the composition of the Tribunal)”.
48 After that section insert—
(1) The Tribunal must submit to the Society in respect of each year a budget for the year approved by the Legal Services Board.
(2) A budget for a year is a statement of the amount of money which the Tribunal estimates is required to enable it to meet all of its expenditure in that year (having regard to any amounts received but not spent in previous years).
(3) Before approving a statement for the purposes of subsection (1) the Legal Services Board must consult the Society.
(4) The budget for a year must be submitted to the Society under subsection (1) no later than the date in the preceding year specified by the Society for the purposes of this subsection.
(5) Before specifying a date for this purpose the Society must consult the Tribunal.
(6) The amount specified in a budget submitted under subsection (1) must be paid by the Society to the Tribunal—
(a) in such instalments and at such times as may be agreed between the Society and the Tribunal, or
(b) in the absence of such agreement, before the beginning of the year to which the budget relates.
(7) The Society may pay the Tribunal such other amounts as the Society considers appropriate.
(8) In this section “year” means a calendar year.”
49 In section 47 (jurisdiction and powers of Tribunal)—
(a) 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;”,
(b) in subsection (2) for “subsection” (where it first occurs) substitute “subsections (2E) and”,
(c) 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;”,
(d) in subsection (2)(c) omit “not exceeding £5,000”,
(e) after subsection (2)(e) insert—
“(ea) the termination of that solicitor’s unspecified period of suspension from practice as a sole solicitor;”,
(f) 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.”,
(g) after subsection (3A) insert—
“(3B) For the avoidance of doubt, nothing in this section permits the Tribunal to make an order requiring redress to be made in respect of any act or omission of any person.”, and
(h) omit subsections (4) and (5).
50 In section 48 (orders of Tribunal)—
(a) in subsection (2)(b)—
(i) after “(e),” insert “(ea),”, and
(ii) omit “in the London Gazette”,
(b) in subsection (3) for “Subject to section 43(5), any” substitute “Any”, 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.”
51 (1) Section 49 (appeals from Tribunal) is amended as follows.
(2) In subsection (1) for “lie—” to the end substitute “lie to the High Court”.
(3) In subsection (2), after “(3)” insert “and to section 43(5) of the Administration of Justice Act 1985”.
(4) In subsection (3) for “legal aid work (within the meaning of that section)” substitute “providing representation funded by the Legal Services Commission as part of the Criminal Defence Service”.
(5) In subsection (4)—
(a) omit “and the Master of the Rolls”, and
(b) for “they” substitute “it”.
(6) For subsection (6) substitute—
“(6) Any decision of the High Court—
(a) on an application under section 43(3) or 47(1)(d), (e), (ea) or (f), or
(b) against an order under section 43(3A),
shall be final.”
(7) Omit subsection (7).
52 After that section insert—
(1) The Society may, with the approval of the Tribunal, make rules which provide that in such circumstances as may be prescribed by the rules an appeal under any of the provisions listed in subsection (2) lies to the Tribunal and not to the High Court.
(2) Those provisions are—
(a) section 8(4);
(b) section 13A(6);
(c) section 16(5);
(d) section 28(3D);
(e) section 41(3);
(f) paragraph 14 of Schedule 14 to the Courts and Legal Services Act 1990 (foreign lawyers: appeals against conditions or refusals).
(3) Any decision of the Tribunal on an appeal by virtue of rules made under this section shall be final.”
53 In section 54 (restrictions on powers to strike names off roll)—
(a) in subsection (1) for “service under articles” substitute “persons seeking admission as solicitors”, and
(b) in subsection (2) for paragraphs (a) and (b) substitute—
“(a) that a solicitor who undertook a training responsibility for him under training regulations neglected or omitted to take out a practising certificate; or
(b) that the name of a solicitor who undertook such a responsibility for a period has been removed from or struck off the roll after the end of that period.”
54 (1) Section 56 (orders as to remuneration for non-contentious business) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a) for “Secretary of State” substitute “Lord Chancellor”,
(b) after paragraph (d) insert—
“(da) a member of the Legal Services Board nominated by that Board;”, and
(c) in paragraph (e) for “Secretary of State” substitute “Lord Chancellor”.
(3) In subsection (2) for “(the Secretary of State” to “think fit” substitute “(the Lord Chancellor being one), may make general orders prescribing the general principles to be applied when determining”.
(4) In subsection (3)—
(a) for “Secretary of State” substitute “Lord Chancellor”, and
(b) for “Council” (in both places) substitute “Society”.
(5) In subsection (4) for “An order” to the end of paragraph (a) substitute—
“The principles prescribed by an order under this section may provide that solicitors should be remunerated—”.
(6) In subsection (5)—
(a) for “An order” to “reference” substitute—
“The general principles prescribed by an order under this section may provide that the amount of such remuneration is to be determined by having regard”, and
(b) in paragraph (d) after “solicitor” insert “, or any employee of his who is an authorised person,”.
(7) 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).”
(8) In subsection (6)(a) for “taxation” substitute “assessment”.
(9) In subsection (7)—
(a) for “taxation” substitute “assessment”, and
(b) for “regulated by” substitute “subject to”.
55 In section 57 (non-contentious business agreements)—
(a) in subsection (2) for “stamps” substitute “taxes”,
(b) in subsection (5)—
(i) for “taxation” substitute “assessment”, and
(ii) for “taxing officer” substitute “costs officer”, and
(c) in subsection (7)—
(i) for “taxation” substitute “assessment”, and
(ii) for “taxing officer” substitute “costs officer”.
56 In section 60 (effect of contentious business agreements)—
(a) in subsection (1) for “taxation” substitute “assessment”,
(b) in subsection (2)—
(i) for “taxed” substitute “assessed”, and
(ii) for “taxation” substitute “assessment”, and
(c) for subsection (5) substitute—
“(5) A provision in a contentious business agreement that the solicitor shall not be liable for his negligence, or that of any employee of his, shall be void if the client is a natural person who, in entering that agreement, is acting for purposes which are outside his trade, business or profession.
(6) A provision in a contentious business agreement that the solicitor shall be relieved from any responsibility to which he would otherwise be subject as a solicitor shall be void.”
57 In section 61 (enforcement of contentious business agreements)—
(a) in subsection (2)(b) for “taxed” substitute “assessed”,
(b) in subsection (3) for “taxing officer” substitute “costs officer”,
(c) in subsection (4)—
(i) for “taxing officer” substitute “costs officer”, and
(ii) for “taxed” substitute “assessed”,
(d) in subsection (4B)—
(i) for “taxation” substitute “assessment”, and
(ii) for “taxing officer” substitute “costs officer”, and
(e) in subsection (5) for “taxed” substitute “assessed”.
Legal Services Act 2007