|
| |
|
(2) | The person is exempt if the person is not an authorised person in relation to |
| |
that activity under this Act, but is authorised to carry on that activity by or |
| |
by virtue of any other enactment. |
| |
(3) | The person is exempt if the person has a commission under section 1(1) of |
| |
the Commissioners for Oaths Act 1889 (c. 10). |
| 5 |
| |
7 | A European lawyer (within the meaning of the European Communities |
| |
(Services of Lawyers) Order 1978 (S.I. 1978/1910)) is an exempt person for |
| |
the purposes of carrying on an activity which is a reserved legal activity and |
| |
which the European lawyer is entitled to carry on by virtue of that order. |
| 10 |
Employers etc acting through exempt person |
| |
8 (1) | This paragraph applies where— |
| |
(a) | a person (“P”) carries on an activity (“the relevant activity”) which is |
| |
a reserved legal activity, |
| |
(b) | P carries on the relevant activity by virtue of an employee of P (“E”) |
| 15 |
carrying it on in E’s capacity as such an employee, and |
| |
(c) | E is an exempt person in relation to the relevant activity. |
| |
(2) | P is an exempt person in relation to the relevant activity to the extent that P |
| |
carries on that activity by virtue of E so carrying it on. |
| |
(3) | This paragraph does not apply where E— |
| 20 |
(a) | carries on the relevant activity at the direction and under the |
| |
supervision of an authorised person in relation to that activity, and |
| |
(b) | is exempt in relation to that activity by virtue of paragraph 1(7), 3(3) |
| |
| |
(4) | If P is a body, in this paragraph references to an employee of P include |
| 25 |
references to a manager of P. |
| |
| |
9 (1) | The Lord Chancellor may, by order, amend this Schedule so as to provide— |
| |
(a) | for persons to be exempt persons in relation to any activity which is |
| |
a reserved legal activity (including any activity which is a reserved |
| 30 |
legal activity by virtue of an order under section 24 (extension of |
| |
reserved legal activities)), |
| |
(b) | for persons to cease to be such persons, or |
| |
(c) | for the amendment of any provision made in respect of an exempt |
| |
| 35 |
(2) | The Lord Chancellor may make an order under sub-paragraph (1) only on |
| |
the recommendation of the Board. |
| |
|
| |
|
| |
|
2 (1) | The regulatory arrangements of a listed body, as they have effect |
| |
immediately before paragraph 1 comes into force, are to be treated as having |
| |
been approved by the Board for the purposes of this Act at the time that |
| |
paragraph comes into force. |
| |
(2) | “Listed body” means a body listed in the first column of the Table in |
| 5 |
paragraph 1 as that Table has effect at the time that paragraph comes into |
| |
| |
(3) | Sub-paragraph (1) is without prejudice to the Board’s power to give |
| |
directions under section 32 (powers to direct an approved regulator to take |
| |
steps in certain circumstances, including steps to amend its regulatory |
| 10 |
| |
| |
Designation of bodies by order |
| |
| |
3 (1) | This paragraph applies where a body wishes to authorise persons to carry |
| 15 |
on one or more activities which constitute one or more reserved legal |
| |
| |
(2) | The body may apply to the Board for the Board— |
| |
(a) | to recommend that an order be made by the Lord Chancellor |
| |
designating the body as an approved regulator in relation to the |
| 20 |
reserved legal activity or activities in question, and |
| |
(b) | to approve what the body proposes as its regulatory arrangements if |
| |
such an order is made (“the proposed regulatory arrangements”). |
| |
(3) | An application under this paragraph must be made in such form and |
| |
manner as the Board may specify in rules and must be accompanied by— |
| 25 |
(a) | a statement of the reserved legal activity or activities to which it |
| |
| |
(b) | details of the applicant’s proposed regulatory arrangements, |
| |
(c) | such explanatory material (including material about the applicant’s |
| |
constitution and activities) as the applicant considers is likely to be |
| 30 |
needed for the purposes of this Part of this Schedule, and |
| |
| |
(4) | The prescribed fee is the fee specified in, or determined in accordance with, |
| |
rules made by the Board with the consent of the Lord Chancellor. |
| |
(5) | The proposed regulatory arrangements must, in particular, include— |
| 35 |
(a) | details of the authority which the applicant proposes to give persons |
| |
to carry on activities which are reserved legal activities and of the |
| |
nature of the persons to whom the authority is to be given, |
| |
(b) | regulations (however they may be described) as to the education and |
| |
training which persons must receive, and any other requirements |
| 40 |
which must be met by or in respect of them, in order for them to be |
| |
| |
(c) | rules (however they may be described) as to the conduct required of |
| |
persons in carrying on any activity by virtue of the authority. |
| |
|
| |
|
| |
|
(6) | An applicant may, at any time, withdraw the application by giving notice to |
| |
that effect to the Board. |
| |
| |
4 (1) | The Board may refuse to consider, or to continue its consideration of, an |
| |
| 5 |
(2) | The Board must make rules about the procedures and criteria that it will |
| |
apply when determining whether to refuse to consider, or to continue its |
| |
consideration of, an application under sub-paragraph (1). |
| |
(3) | Where the Board decides to refuse to consider, or to continue its |
| |
consideration of, an application it must give the applicant notice of that |
| 10 |
decision and of its reasons for it. |
| |
(4) | The Board must publish a notice given under sub-paragraph (3). |
| |
Board’s duty to seek advice |
| |
5 (1) | The Board must give each of the persons listed in sub-paragraph (2)— |
| |
(a) | a copy of the application and accompanying material, and |
| 15 |
(b) | a notice specifying a period within which any advice given under |
| |
paragraphs 6 to 8 must be given. |
| |
| |
| |
| 20 |
(c) | the Lord Chief Justice, and |
| |
(d) | such other persons as the Board considers it reasonable to consult |
| |
regarding the application. |
| |
(3) | In this Part of this Schedule, in relation to an application, “selected |
| |
consultee” means a person within sub-paragraph (2)(d). |
| 25 |
Advice of Office of Fair Trading |
| |
6 (1) | The OFT must give the Board such advice as the OFT thinks fit regarding |
| |
whether the application should be granted. |
| |
(2) | In deciding what advice to give, the OFT must, in particular, have regard to |
| |
whether making an order under paragraph 17 in accordance with the |
| 30 |
recommendation applied for would (or would be likely to) prevent, restrict |
| |
or distort competition within the market for reserved legal services to any |
| |
| |
Advice of the Consumer Panel |
| |
7 (1) | The Consumer Panel must give the Board such advice as the Consumer |
| 35 |
Panel thinks fit regarding whether the application should be granted. |
| |
(2) | In deciding what advice to give, the Consumer Panel must, in particular, |
| |
have regard to the likely impact on consumers of the making of an order |
| |
under paragraph 17 in accordance with the recommendation applied for. |
| |
|
| |
|
| |
|
Advice of selected consultees |
| |
8 | A selected consultee may give the Board such advice as the selected |
| |
consultee thinks fit in respect of the application. |
| |
Advice of the Lord Chief Justice |
| |
9 (1) | The Board must give the Lord Chief Justice— |
| 5 |
(a) | a copy of any advice duly given under paragraphs 6 to 8, and |
| |
(b) | a notice specifying a period within which any advice under this |
| |
| |
(2) | The Lord Chief Justice must then give such advice to the Board as the Lord |
| |
Chief Justice thinks fit regarding whether the application should be granted. |
| 10 |
(3) | In deciding what advice to give, the Lord Chief Justice must, in particular, |
| |
have regard to the likely impact on the courts in England and Wales of the |
| |
making of an order under paragraph 17 in accordance with the |
| |
recommendation applied for. |
| |
Information obtained by consultees |
| 15 |
10 | A person (“the consultee”) to whom a copy of the application is given under |
| |
paragraph 5(1) may, for the purposes of giving advice under paragraphs 6 |
| |
to 9, request the applicant or any other person to provide the consultee with |
| |
such additional information as may be specified by the consultee. |
| |
Representations by applicant |
| 20 |
11 (1) | The Board must give the applicant a copy of any advice duly given under |
| |
| |
(2) | The applicant may make to the Board— |
| |
(a) | written representations, and |
| |
(b) | if the Board authorises it to do so, oral representations, |
| 25 |
| |
(3) | The Board must make rules governing the making of oral and written |
| |
| |
(4) | Representations under this paragraph must be made within— |
| |
(a) | the period of 28 days beginning with the day on which the copy of |
| 30 |
the advice is given to the applicant, or |
| |
(b) | such longer period as the Board may specify in a particular case. |
| |
(5) | Where oral representations are made, the Board must prepare a report of |
| |
| |
(6) | Before preparing that report, the Board must— |
| 35 |
(a) | give the applicant a reasonable opportunity to comment on a draft of |
| |
| |
(b) | have regard to any comments duly made. |
| |
|
| |
|
| |
|
Publication of advice and representations etc |
| |
12 (1) | The Board must, as soon as practicable after the end of the period within |
| |
which representations under paragraph 11 may be made, publish— |
| |
(a) | any advice duly given under paragraphs 6 to 9, and |
| |
(b) | any written representations duly made under paragraph 11 and the |
| 5 |
report (if any) prepared under that paragraph. |
| |
(2) | Nothing in sub-paragraph (1) operates— |
| |
(a) | to prevent a person who gives advice under paragraphs 6 to 9 from |
| |
publishing that advice, or |
| |
(b) | to prevent a person who makes representations under paragraph 11 |
| 10 |
from publishing those representations. |
| |
(3) | A person (“the publisher”) publishing any such material (whether under |
| |
sub-paragraph (1) or otherwise) must, so far as practicable, exclude any |
| |
matter which relates to the private affairs of a particular individual the |
| |
publication of which, in the opinion of the publisher, would or might |
| 15 |
seriously and prejudicially affect the interests of that individual. |
| |
Rules governing decisions by the Board |
| |
13 (1) | The Board must make rules specifying how it will determine applications. |
| |
(2) | Rules under sub-paragraph (1) must, in particular, provide that the Board |
| |
may grant an application in relation to a particular reserved legal activity |
| 20 |
| |
(a) | that, if an order were to be made under paragraph 17 designating the |
| |
body in relation to that activity, the applicant would have |
| |
appropriate internal governance arrangements in place at the time |
| |
| 25 |
(b) | that, if such an order were to be made, the applicant would be |
| |
competent, and have sufficient resources, to perform the role of |
| |
approved regulator in relation to the reserved legal activity at that |
| |
| |
(c) | that the applicant’s proposed regulatory arrangements make |
| 30 |
| |
(d) | that the applicant’s proposed regulatory arrangements comply with |
| |
the requirement imposed by sections 52 and 54 (resolution of |
| |
regulatory conflict), and |
| |
(e) | that those arrangements comply with the requirements imposed by |
| 35 |
sections 112 and 146 (requirements imposed in relation to the |
| |
| |
(3) | The rules made for the purposes of sub-paragraph (2)(a) must in particular |
| |
require the Board to be satisfied— |
| |
(a) | that the exercise of the applicant’s regulatory functions would not be |
| 40 |
prejudiced by any of its representative functions, and |
| |
(b) | that decisions relating to the exercise of its regulatory functions |
| |
would so far as reasonably practicable be taken independently from |
| |
decisions relating to the exercise of its representative functions. |
| |
Determination of applications |
| 45 |
14 (1) | After considering— |
| |
|
| |
|
| |
|
(a) | the application and accompanying material, |
| |
(b) | any other information provided by the applicant, |
| |
(c) | any advice duly given under paragraphs 6 to 9, |
| |
(d) | any representations duly made under paragraph 11, and |
| |
(e) | any other information which the Board considers relevant to the |
| 5 |
| |
| the Board must decide whether to grant the application. |
| |
(2) | Where the application relates to more than one reserved legal activity, the |
| |
Board may grant the application in relation to all or any of them. |
| |
(3) | The Board must give notice of its decision to the applicant (“the decision |
| 10 |
| |
(4) | Where the Board decides to refuse the application (in whole or in part), the |
| |
decision notice must specify the reasons for that decision. |
| |
(5) | The Board must publish the decision notice. |
| |
15 (1) | Where an application is made under this Part, the Board must give the |
| 15 |
decision notice under paragraph 14 within the decision period. |
| |
(2) | The “decision period” is the period of 12 months beginning with the day on |
| |
which the application is made to the Board. |
| |
(3) | The Board may, before the end of the decision period, issue a notice |
| |
extending that period by a period specified in the notice. |
| 20 |
(4) | More than one notice may be issued under sub-paragraph (3), but the |
| |
decision period must not exceed 16 months. |
| |
(5) | The Board may issue a notice under sub-paragraph (3) only after it has |
| |
| |
| 25 |
(b) | the Consumer Panel, and |
| |
(c) | the Lord Chief Justice. |
| |
(6) | A notice under sub-paragraph (3) must state the Board’s reasons for |
| |
extending the decision period. |
| |
(7) | The Board must publish any notice issued under sub-paragraph (3). |
| 30 |
Effect of grant of application |
| |
16 (1) | This paragraph applies where an application is granted in relation to a |
| |
reserved legal activity or activities. |
| |
(2) | The Board must recommend to the Lord Chancellor that an order be made |
| |
designating the applicant as an approved regulator in relation to the |
| 35 |
reserved legal activity or activities in question. |
| |
(3) | The Board must publish any recommendation made under sub-paragraph |
| |
| |
(4) | The Board must make available to the Lord Chancellor— |
| |
(a) | any advice duly given under paragraphs 6 to 9, |
| 40 |
(b) | any written representations duly made under paragraph 11 and the |
| |
report (if any) prepared under that paragraph, and |
| |
|
| |
|