Legal Complaints and Regulation Act (Northern Ireland) 2016

PART 1 — THE LEGAL SERVICES OVERSIGHT COMMISSIONER FOR NORTHERN IRELAND

The Legal Services Oversight Commissioner for Northern Ireland

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• (1) There is to be an officer known as the Legal Services Oversight Commissioner for Northern Ireland.

• (2) The Commissioner must be appointed by the Department of Finance and Personnel.

• (3) The Department of Finance and Personnel must consult the Lord Chief Justice before appointing the Commissioner.

• (4) The Commissioner must not be, and must never have been, a solicitor or barrister.

• (5) Schedule 1 has effect in relation to the Commissioner.

General powers of the Commissioner

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• (1) The Commissioner may—

• (a) require a professional body to provide information to, or make reports to, the Commissioner about the handling of complaints about its members;

• (b) require a professional body to provide the Commissioner with such information in relation to the number of complaints made against the members of that body as the Commissioner may specify;

• (c) investigate the manner in which complaints about the members of a professional body are handled by that body;

• (d) make recommendations in relation to the training of members of—

• (i) the Bar Complaints Committee;

• (ii) the Solicitors Complaints Committee;

• (e) set targets in relation to the handling of complaints about the members of a professional body;

• (f) make recommendations in relation to the handling of complaints about the members of a professional body;

• (g) require a professional body to submit to the Commissioner a plan for the handling of complaints about its members; and

• (h) do any other thing which the Commissioner has power to do by virtue of this Act or any other statutory provision.

• (2) For the purposes of an investigation under subsection (1)(c), the Commissioner shall have a right of access at all reasonable times to all such documents as the Commissioner may reasonably require for carrying out the investigation.

• (3) Subsection (2) only applies to documents in the custody of or under the control of the professional body to which the investigation relates.

• (4) Where the Commissioner requires a professional body to submit a plan for the handling of complaints about its members but the body—

• (a) fails to submit a plan which the Commissioner considers adequate for securing that such complaints are handled effectively and efficiently; or

• (b) submits such a plan but fails to handle complaints in accordance with it,

the Commissioner may require the body to pay a penalty.

• (5) Before requiring a professional body to pay a penalty under subsection (4) the Commissioner must consult with the body and afford it a reasonable opportunity of appearing before the Commissioner to make representations.

• (6) The Department must by order specify the maximum amount of any penalty under subsection (4).

• (7) No order shall be made under subsection (6) unless a draft of the order has been laid before, and approved by resolution of, the Assembly.

• (8) In determining the amount of any penalty which a professional body is to be required to pay under subsection (4) the Commissioner must have regard to all the circumstances of the case, including in particular—

• (a) the total number of complaints about members of the body and, where the penalty is imposed in respect of a failure to handle complaints in accordance with a plan, the number of complaints not so handled; and

• (b) the assets of the body and the number of its members.

• (9) A penalty under subsection (4) must be paid to the Commissioner who must pay it to the Department.

Duty of certain bodies to consult Commissioner

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• (1) Where any body listed in subsection (2) has power to make any rules or regulations (however they may be described) which apply to or in relation to barristers, other than those made for the purposes of any functions that that body has to represent or promote the interests of barristers, that body must consult the Commissioner before making those rules or, as the case may be, those regulations.

• (2) The bodies referred to in subsection (1) are—

• (a) the Benchers of the Honorable Society of the Inn of Court of Northern Ireland;

• (b) the Executive Council of the Inn of Court of Northern Ireland;

• (c) the General Council of the Bar of Northern Ireland.

• (3) In Article 43 of the 1976 Order (Solicitors Disciplinary Tribunal), in paragraph (8), after “The Tribunal may,” insert “ after consultation with the Legal Services Oversight Commissioner and ”.

• (4) In Article 51 of the 1976 Order (orders of Solicitors Disciplinary Tribunal on inquiry), after paragraph (11) insert—

(11A) Before making an order under paragraph (11), the Department of Finance and Personnel shall consult the Legal Services Oversight Commissioner.

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• (5) In Article 71 of the 1976 Order (orders as to remuneration of solicitors for non-contentious business), in paragraph (6)—

• (a) in sub-paragraph (a), for “the Council” substitute “ the Legal Services Oversight Commissioner and the Council ”;

• (b) in sub-paragraph (b), for “the Council” substitute “ the Commissioner or the Council ”.

• (6) In Article 75 of the 1976 Order (regulations and rules) after paragraph (1) insert—

(1A) Before making regulations the Society shall consult the Legal Services Oversight Commissioner.

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Duty of Commissioner to review certain matters

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• (1) At the request of the Department, and within such time as the Department may specify, the Commissioner must review, and submit a report to the Department on, such matter or matters relating to the organisation or regulation of the professional bodies as the Department may specify.

• (2) Each report published by the Commissioner under subsection (1) must be published by the Commissioner in such manner as the Commissioner may determine.

The levy

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• (1) The Department must make regulations providing for the imposition of a levy on each professional body for the purpose of raising an amount corresponding to the expenditure of the Legal Services Oversight Commissioner incurred under or for the purposes of this Act or any other statutory provision.

• (2) A levy imposed under this section is payable to the Commissioner.

• (3) Before making regulations under this section, the Department must satisfy itself that the apportionment of the levy as between each professional body will be in accordance with fair principles.

• (4) No regulations shall be made under this section unless a draft of the regulations has been laid before, and approved by resolution of, the Assembly.

The levy: supplementary provisions

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• (1) In this section—

• “the levy” means the levy payable by virtue of section 5;

• “the levy regulations” means the regulations made in accordance with that section.

• (2) The levy is to be payable at such rate and at such times as may be specified in the levy regulations.

• (3) Any amount which is owed to the Commissioner in accordance with the levy regulations may be recovered as a debt due to the Commissioner.

• (4) The levy regulations must include provisions requiring the Department—

• (a) to calculate the amount of the levy payable by each professional body;

• (b) to consult each professional body on the amount of the levy payable by that body;

• (c) to notify each professional body of its liability to pay an amount of levy and the time or times at which it becomes payable.

• (5) Without prejudice to subsections (2) to (4), the levy regulations may—

• (a) make provision about the collection and recovery of the levy;

• (b) make provision about the circumstances in which any amount of the levy payable may be waived;

• (c) provide that if the whole or any part of an amount of the levy payable under the levy regulations is not paid by the time when it is required to be paid under the regulations, the unpaid balance carries interest at the rate determined by or in accordance with the levy regulations.

Payments by Department

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• (1) The Department may pay to the Commissioner such sums as the Department may determine as appropriate for the purpose of meeting any expenditure of the Commissioner incurred under or for the purposes of this Act or any other statutory provision.

• (2) The Department may—

• (a) determine the circumstances in which the sums mentioned in subsection (1) are to be paid;

• (b) determine the manner in which and times at which those sums are to be paid; and

• (c) impose conditions on the payment of those sums.

Privilege for certain publications

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For the purposes of the law of defamation, publication by the Commissioner of any matter which the Commissioner is required or authorised to publish under this Act shall be absolutely privileged unless the publication is proved to be made with malice.

Lay observer

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• (1) The office of lay observer (within the meaning of the 1976 Order) is abolished.

• (2) Article 42 of that Order is repealed.

• (3) Where any allegation has been duly made to a lay observer under Article 42 of the 1976 Order but the lay observer has not concluded his or her examination of the allegation before the repeal of that Article has effect, the Commissioner may exercise the functions of a lay observer under the 1976 Order in relation to that allegation.

• (4) Where the Commissioner exercises the functions of a lay observer by virtue of subsection (3), the 1976 Order shall have effect in relation to the Commissioner's examination as if this Act had not been passed.

Interpretation of Part 1

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In this Part—

• “the Bar Complaints Committee” means the committee established under section 12;

• “the professional bodies” are—the Honorable Society of the Inn of Court of Northern Ireland;the Law Society;

• “the Solicitors Complaints Committee” means the committee established under section 30.

PART 2 — COMPLAINTS AGAINST BARRISTERS

Complaints procedures for barristers

Complaints procedures for barristers

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• (1) The General Council of the Bar must make provision requiring every barrister to participate in, or make arrangements to be subject to, procedures for the resolution of relevant complaints established and maintained by such person or body as may be specified by the General Council of the Bar, and provision must be made by the Council for the enforcement of that requirement.

• (2) Before making the provision mentioned in subsection (1), the General Council of the Bar must consult the Legal Services Oversight Commissioner.

• (3) In subsection (1) “relevant complaint” means a complaint which relates to professional services provided by a barrister.

Bar Complaints Committee

Bar Complaints Committee

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• (1) The Benchers of the Honorable Society of the Inn of Court of Northern Ireland (in this Part referred to as “the Benchers”) must, in accordance with the provisions of this Part, establish and maintain a committee to be known as the Bar Complaints Committee to deal with any complaint made by or on behalf of a complainant within section 15 in relation to professional services provided by a barrister.

• (2) Schedule 2 makes further provision in relation to the Bar Complaints Committee.

Jurisdiction of the Bar Complaints Committee

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• (1) A complaint which relates to an act or omission of a barrister (“the respondent”) in the course of providing professional services is within the jurisdiction of the Bar Complaints Committee if—

• (a) the complaint is not excluded from the jurisdiction of the Committee by section 14; and

• (b) the complainant is within section 15 and wishes to have the complaint dealt with by the Committee.

• (2) The right of a person to make a complaint to the Bar Complaints Committee, and the jurisdiction of the Committee to investigate, consider and determine a complaint, may not be limited or excluded by any contract term.

Excluded complaints

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• (1) A complaint is excluded from the jurisdiction of the Bar Complaints Committee if the complainant has not first used the respondent's complaints procedures in relation to the complaint.

• (2) The respondent's complaints procedures are the procedures which the respondent participates in, or is subject to, in accordance with section 11.

• (3) Rules made by the Committee under section 17(1) must provide that subsection (1) of this section does not apply in such circumstances as may be specified in the rules.

Complainants

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• (1) A complainant (“C”) is within this section if C—

• (a) meets the first and second conditions; and

• (b) is not excluded by subsection (4).

• (2) The first condition is that C is—

• (a) an individual; or

• (b) a person (other than an individual) or body of a description prescribed by order made by the Department in accordance with a recommendation made under section 16.

• (3) The second condition is that—

• (a) the services to which the complaint relates were provided by the respondent to C;

• (b) the services to which the complaint relates were provided by the respondent to a solicitor who procured them on C's behalf; or

• (c) C satisfies such other conditions, in relation to the services to which the complaint relates, as may be prescribed by order made by the Department in accordance with a recommendation made under section 16.

• (4) C is excluded if, at the time when the act or omission to which the complaint relates took place—

• (a) C was a solicitor and the services to which the complaint relates were procured by C on behalf of another person; or

• (b) C was a person or body of a description prescribed by order made by the Department in accordance with a recommendation made under section 16.

• (5) An order made under this section is subject to negative resolution.

Orders under section 15

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• (1) An interested body may recommend to the Department that the Department make an order under section 15(2)(b), (3)(c) or (4)(b).

• (2) An interested body must, if requested to do so by the Department, consider whether or not it is appropriate to make a recommendation under subsection (1).

• (3) An interested body must, before making a recommendation under subsection (1)—

• (a) publish a draft of the proposed recommendation;

• (b) invite representations regarding the proposed recommendation; and

• (c) consider any such representations which are made.

• (4) Where the Department receives a recommendation under subsection (1), the Department must consider whether to follow the recommendation.

• (5) If the Department decides not to follow the recommendation, the Department must publish a notice to that effect which includes the Department's reasons for the decision.

• (6) In this section “interested body” means—

• (a) the Bar Complaints Committee; or

• (b) the Legal Services Oversight Commissioner.

Procedure for complaints

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• (1) The Bar Complaints Committee must make rules setting out the procedure for—

• (a) the making of complaints to the Committee; and

• (b) the investigation, consideration and determination of complaints by the Committee.

• (2) Rules under subsection (1)—

• (a) must provide that a complaint is to be entertained by the Committee only if the complainant has made the complaint before the applicable time limit (determined in accordance with the rules) has expired; and

• (b) may provide that the Committee may extend that time limit in specified circumstances.

• (3) Rules under subsection (1) must make provision permitting such persons as may be specified to continue a complaint made by a person who has died or is otherwise unable to act, and for that purpose may modify references to the complainant in this Part and in the rules.

• (4) Rules under subsection (1) may (among other things) make provision—

• (a) for the whole or part of a complaint to be dismissed, in such circumstances as are mentioned in subsection (5);

• (b) for the reference of a complaint, in such circumstances as may be specified and with the consent of the complainant, to another person or body with a view to the complaint being determined by that person or body instead of by the Committee;

• (c) about the evidence which may be required or admitted and the extent to which it should be oral or written;

• (d) subject to the provisions of sections 22 to 24, for requiring parties to the complaint to attend to give evidence, produce documents and provide information;

• (e) for the Committee, in such circumstances as may be specified, to award expenses to persons in connection with attendance at a hearing before the Committee;

• (f) for the Committee to award costs against the respondent in favour of the complainant;

• (g) for the Committee to award costs against the respondent in favour of the Committee for the purpose of providing a contribution to resources deployed in dealing with the complaint;

• (h) for the Committee to award costs against the complainant in favour of the respondent if, in the opinion of the Committee, the complainant acted so unreasonably in relation to the complaint that it is appropriate in all the circumstances of the case to make such an award;

• (i) for the Committee to award costs against the complainant in favour of the Committee for the purpose of providing a contribution to resources deployed in dealing with the complaint if, in the opinion of the Committee, the complainant acted so unreasonably in relation to the complaint that it is appropriate in all the circumstances of the case to make such an award;