House of Commons portcullis
House of Commons
Session 2006 - 07
Internet Publications
Other Bills before Parliament

Legal Services Bill [HL]


Legal Services Bill [HL]
Part 9 — General

113

 

203     

The giving of notices, directions and other documents

(1)   

This section applies where provision made (in whatever terms) by or under

this Act authorises or requires a notice, direction or any other document

(including a copy of a document) to be given to a person.

(2)   

The notice, direction or document may be given to the person—

5

(a)   

by delivering it to the person,

(b)   

by leaving it at the person’s proper address, or

(c)   

by sending it by post to the person at that address.

(3)   

The notice, direction or document may be given to a body corporate by being

given to the secretary or clerk of that body.

10

(4)   

The notice, direction or document may be given to a partnership by being

given to—

(a)   

a partner in the partnership, or

(b)   

a person having the control or management of the partnership

business.

15

(5)   

The notice, direction or document may be given to any other unincorporated

body by being given to a member of the governing body of the unincorporated

body.

(6)   

For the purposes of this section, and section 7 of the Interpretation Act 1978 (c.

30) (service of documents by post) in its application to this section, the proper

20

address of a person is—

(a)   

in the case of a body corporate, the address of the registered or

principal office of the body;

(b)   

in the case of a partnership, or any other unincorporated body, the

address of the principal office of the partnership or body;

25

(c)   

in the case of a person to whom the notice or other document is given

in reliance on any of subsections (3) to (5), the proper address of the

body corporate, partnership or other unincorporated body in question;

(d)   

in any other case, the last known address of the person in question.

(7)   

In the case of—

30

(a)   

a company registered outside the United Kingdom,

(b)   

a partnership carrying on business outside the United Kingdom, or

(c)   

any other unincorporated body with offices outside the United

Kingdom,

   

the references in subsection (6) to its principal office include references to its

35

principal office within the United Kingdom (if any).

(8)   

This section has effect subject to section 204 (notices, directions and documents

in electronic form).

204     

The giving of notices, directions and other documents in electronic form

(1)   

This section applies where—

40

(a)   

section 203 authorises the giving of a notice, direction or other

document by its delivery to a particular person (“the recipient”), and

(b)   

the notice, direction or other document is transmitted to the recipient—

(i)   

by means of an electronic communications network, or

 
 

Legal Services Bill [HL]
Part 9 — General

114

 

(ii)   

by other means but in a form that nevertheless requires the use

of apparatus by the recipient to render it intelligible.

(2)   

The transmission has effect for the purposes of this Act as a delivery of the

notice, direction or other document to the recipient, but only if the

requirements imposed by or under this section are complied with.

5

(3)   

Where the recipient is the Board, the OLC or an ombudsman—

(a)   

the recipient must have indicated its willingness to receive the notice,

direction or other document in a manner mentioned in subsection

(1)(b),

(b)   

the transmission must be made in such manner, and satisfy such other

10

conditions as the recipient may require, and

(c)   

the notice, direction or other document must take such form as the

recipient may require.

(4)   

Where the person making the transmission is the Board, the OLC or an

ombudsman, that person may (subject to subsection (5)) determine—

15

(a)   

the manner in which the transmission is made, and

(b)   

the form in which the notice, direction or other document is

transmitted.

(5)   

Where the recipient is a person other than the Board, the OLC or an

ombudsman—

20

(a)   

the recipient, or

(b)   

the person on whose behalf the recipient receives the notice, direction

or other document,

   

must have indicated to the person making the transmission the recipient’s

willingness to receive notices, directions or other documents transmitted in the

25

form and manner used.

(6)   

An indication to any person for the purposes of subsection (5)—

(a)   

must be given to that person in such manner as that person may

require;

(b)   

may be a general indication or one that is limited to notices or

30

documents of particular descriptions;

(c)   

must state the address to be used and must be accompanied by such

other information as that person requires for the making of the

transmission;

(d)   

may be modified or withdrawn at any time by a notice given to that

35

person in such manner as that person may require.

(7)   

An indication, requirement or determination given, imposed or made by the

Board, the OLC or an ombudsman for the purposes of this section is to be

given, imposed or made by being published by that person.

(8)   

In this section “electronic communications network” has the same meaning as

40

in the Communications Act 2003 (c. 21).

Orders, rules etc

205     

Orders, regulations and rules

(1)   

Any order or regulations made by the Lord Chancellor under this Act must be

made by statutory instrument.

45

 
 

Legal Services Bill [HL]
Part 9 — General

115

 

(2)   

Any rules made by the Board under section 37(4), 95(3) or 174 must be made

by statutory instrument, and the Statutory Instruments Act 1946 (c. 36) applies

to the Board’s powers to make rules under those sections as if the Board were

a Minister of the Crown.

(3)   

An instrument to which this subsection applies may—

5

(a)   

provide for a person to exercise a discretion in dealing with any matter;

(b)   

include incidental, supplementary and consequential provision;

(c)   

make transitory or transitional provision and savings;

(d)   

make provision generally or subject to exceptions or only in relation to

specified cases;

10

(e)   

make different provision for different cases or circumstances or for

different purposes.

(4)   

Subsection (3) applies to—

(a)   

any order or regulations made by the Lord Chancellor,

(b)   

any rules or regulations made by the Board, and

15

(c)   

any rules made by the OLC,

   

under or by virtue of this Act.

206     

Consultation requirements for rules

(1)   

This section applies in relation to—

(a)   

rules made by the Board under this Act, and

20

(b)   

rules made by the OLC under Part 6,

   

other than excluded rules.

(2)   

If the Board or the OLC (“the rule-making body”) proposes to make any rules,

it must publish a draft of the proposed rules.

(3)   

The draft must be accompanied by a notice which states that representations

25

about the proposals may be made to the rule-making body within the period

specified in the notice.

(4)   

Before making the rules, the rule-making body must have regard to any

representations duly made.

(5)   

If the rules differ from the draft published under subsection (2) in a way which

30

is, in the opinion of the rule-making body, material, it must publish details of

the differences.

(6)   

The rule-making body must publish any rules it makes, and rules may not take

effect before the time they are published.

(7)   

Subsection (6) does not apply to rules made by the Board under section 37(4),

35

95(3) or 174.

(8)   

The rule-making body may make a reasonable charge for providing a person

with a copy of—

(a)   

a draft published under subsection (2), or

(b)   

rules published under subsection (6).

40

(9)   

In this section “excluded rules” means—

(a)   

rules of procedure made by the Board for the purposes of paragraph 18

of Schedule 1,

 
 

Legal Services Bill [HL]
Part 9 — General

116

 

(b)   

rules made by the Board in its capacity as an approved regulator or a

licensing authority, and

(c)   

rules of procedure made by the OLC for the purposes of paragraph 17

of Schedule 15;

   

and references to making rules include references to modifying the rules and,

5

in relation to any modifications of rules, references to the proposed rules are to

be read as references to the proposed modifications.

(10)   

This section is subject to section 157(3) (which disapplies this section to OLC

rules made in response to a Board direction under section 157(1)(b)).

207     

Parliamentary control of orders and regulations

10

(1)   

A statutory instrument containing an order or regulations made by the Lord

Chancellor under this Act is subject to annulment in pursuance of a resolution

of either House of Parliament.

(2)   

Subsection (1) is subject to subsections (3) and (4).

(3)   

Subsection (1) does not apply to an order if it contains only provision made

15

under one or more of the following—

(a)   

section 23(3)(b) (day appointed as end of transitional period relating to

non-commercial bodies);

(b)   

section 30(4) (appointed day before which first set of rules must be

made under section 30);

20

(c)   

section 212 (commencement);

(d)   

paragraph 3(1)(b) of Schedule 5 (day appointed as end of transitional

period during which rights conferred by virtue of Part 2 of that

Schedule);

(e)   

paragraph 18(1)(b) of Schedule 18 (day appointed as end of transitional

25

period during which rights conferred by virtue of Part 3 of that

Schedule).

(4)   

Subsection (1) does not apply to an order or regulations which contains

(whether alone or together with other provision) provision made under any of

the following—

30

(a)   

section 24(1) (orders adding to reserved legal activities);

(b)   

section 25(1) or (3) (provisional designation of approved regulators);

(c)   

section 42(6) (regulations relating to warrants under section 42);

(d)   

section 45(1) (cancellation of designation as approved regulator);

(e)   

section 46 (transitional arrangements following cancellation under

35

section 45);

(f)   

section 48(6) (regulations relating to warrants under section 48);

(g)   

section 62(1) (power to designate Board as an approved regulator,

modify its functions or cancel its designation);

(h)   

section 69(1) (modification of functions of approved regulators etc);

40

(i)   

section 76(1) (cancellation of designation as licensing authority);

(j)   

section 77 (transitional arrangements following cancellation under

section 76);

(k)   

section 79(6) (regulations relating to warrants under section 79);

(l)   

section 80(1) (order establishing appellate body etc);

45

(m)   

section 106(1)(e) (power to prescribe bodies as bodies to which section

106 applies);

 
 

Legal Services Bill [HL]
Part 9 — General

117

 

(n)   

section 109 (power to modify application of Part 5 to foreign bodies);

(o)   

section 174(5)(c) (power to prescribe persons as leviable bodies);

(p)   

section 208(5) (power to modify definition of “manager” in its

application to foreign bodies);

(q)   

section 209(3) (power to make consequential provision etc by amending

5

enactments);

(r)   

paragraph 9(1) of Schedule 3 (modification of exempt persons);

(s)   

paragraph 17 of Schedule 4 (designation of approved regulators);

(t)   

paragraph 9 of Schedule 13 (power to modify definitions of “material

interest” and “associates”);

10

(u)   

paragraph 2 of Schedule 22 (transitory power to modify functions of

designated regulators etc).

(5)   

An order or regulations within subsection (4) may not be made unless a draft

of the order or regulations has been laid before, and approved by a resolution

of, each House of Parliament.

15

(6)   

A statutory instrument containing rules made by the Board under section

37(4), 95(3) or 174 is subject to annulment in pursuance of a resolution of either

House of Parliament.

Interpretation

208     

Interpretation

20

(1)   

In this Act, except where the context otherwise requires—

“barrister” means an individual who—

(a)   

has been called to the Bar by an Inn of Court, and

(b)   

is not disbarred by order of an Inn of Court;

“consumers” means (subject to subsection (3)) persons—

25

(a)   

who use, have used or are or may be contemplating using,

services within subsection (2),

(b)   

who have rights or interests which are derived from, or are

otherwise attributable to, the use of such services by other

persons, or

30

(c)   

who have rights or interests which may be adversely affected by

the use of such services by persons acting on their behalf or in a

fiduciary capacity in relation to them;

“conveyancing services” has the same meaning as in Part 2 of the

Administration of Justice Act 1985 (c. 61) (licensed conveyancing) (see

35

section 11(3) of that Act);

“court” includes—

(a)   

a tribunal that is (to any extent) a listed tribunal for, or for any

of, the purposes of Schedule 7 to the Tribunals, Courts and

Enforcement Act 2007 (functions etc of Administrative Justice

40

and Tribunals Council);

(b)   

a court-martial;

(c)   

a statutory inquiry within the meaning of section 16(1) of the

Tribunals and Inquiries Act 1992 (c. 53);

(d)   

an ecclesiastical court (including the Court of Faculties);

45

“functions” includes powers and duties;

 
 

Legal Services Bill [HL]
Part 9 — General

118

 

“immigration advice” and “immigration services” have the meaning

given by section 82 of the Immigration and Asylum Act 1999 (c. 33)

(interpretation of Part 5) (see also subsection (4) below);

“manager”, in relation to a body, means (subject to subsection (5)) a

person who—

5

(a)   

if the body is a body corporate whose affairs are managed by its

members, is a member of the body,

(b)   

if the body is a body corporate and paragraph (a) does not

apply, is a director of the body,

(c)   

if the body is a partnership, is a partner, and

10

(d)   

if the body is an unincorporated body (other than a

partnership), is a member of its governing body;

“modify” includes amend, add to or revoke, and references to

“modifications” are to be construed accordingly;

“non-commercial legal services” means—

15

(a)   

legal services carried on otherwise than with a view to profit;

(b)   

legal services carried on by a not for profit body, a community

interest company or a trade union;

“not for profit body” means a body which, by or by virtue of its

constitution or any enactment—

20

(a)   

is required (after payment of outgoings) to apply the whole of

its income, and any capital which it expends, for charitable or

public purposes, and

(b)   

is prohibited from directly or indirectly distributing amongst its

members any part of its assets (otherwise than for charitable or

25

public purposes);

“the OFT” means the Office of Fair Trading;

“person” includes a body of persons (corporate or unincorporate);

“reserved legal services” means services provided by a person which

consist of or include reserved legal activities carried on by, or on behalf

30

of, that person;

“solicitor” means solicitor of the Senior Courts;

“trade union” means a trade union for the time being included in the list

of trade unions kept under section 2 of the Trade Union and Labour

Relations (Consolidation) Act 1992 (c. 52).

35

(2)   

The services within this subsection are—

(a)   

any services provided by a person who is an authorised person in

relation to an activity which is a reserved legal activity, and

(b)   

any other services provided by a person which consist of or include a

legal activity carried on by, or on behalf of, that person.

40

(3)   

For the purposes of the definition of “consumers” in subsection (1)—

(a)   

if a person (“A”) is carrying on an activity in A’s capacity as a trustee,

the persons who are, have been or may be beneficiaries of the trust are

to be treated as persons who use, have used or are or may be

contemplating using services provided by A in A’s carrying on of that

45

activity, and

(b)   

a person who deals with another person (“B”) in the course of B’s

carrying on of an activity is to be treated as using services provided by

B in carrying on that activity.

 
 

Legal Services Bill [HL]
Part 9 — General

119

 

(4)   

The references in this Act (other than section 196) to the provision of

immigration advice or immigration services are to the provision of such advice

or services by a person—

(a)   

in England and Wales (regardless of whether the persons to whom they

are provided are in England and Wales or elsewhere), and

5

(b)   

in the course of a business carried on (whether or not for profit) by the

person or another person.

(5)   

The Lord Chancellor may by order make provision modifying the definition of

“manager” in its application to a body of persons formed under, or in so far as

the body is recognised by, law having effect outside England and Wales.

10

(6)   

In this section “enactment” means a provision of—

(a)   

an Act of Parliament;

(b)   

an Act of the Scottish Parliament;

(c)   

a Measure or Act of the National Assembly for Wales;

(d)   

Northern Ireland legislation.

15

Miscellaneous and supplementary

209     

Minor and consequential provision etc

(1)   

Schedule 21 contains minor and consequential amendments.

(2)   

The Lord Chancellor may by order make any supplementary, incidental or

consequential provision and any transitory, transitional or saving provision

20

which the Lord Chancellor considers necessary or expedient—

(a)   

for the general purposes, or any particular purpose, of this Act, or

(b)   

in consequence of any provision made by or under it or for giving full

effect to it.

(3)   

An order under this section may make provision amending, repealing or

25

revoking (with or without savings) any provision of—

(a)   

an Act passed before or in the same session as this Act, or

(b)   

an instrument made under an Act before the passing of this Act.

(4)   

An order under this section may make such adaptations of provisions of this

Act brought into force as appear to be necessary or expedient in consequence

30

of other provisions of this Act not yet having come into force.

(5)   

Provision made under this section is additional, and without prejudice, to that

made by or under any other provision of this Act.

210     

Transitional and transitory provision

Schedule 22 contains transitional and transitory provision.

35

211     

Repeals

Schedule 23 contains repeals (including repeals of spent provisions).

 
 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2007
Revised 18 May 2007