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Legal Services Bill [HL]


Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

14

 

(2)   

In this Act references to the “representative functions” of an approved

regulator are to any functions the approved regulator has in connection with

the representation, or promotion, of the interests of persons regulated by it.

General duties of approved regulators

28      

Approved regulator’s duty to promote the regulatory objectives etc

5

(1)   

In discharging its regulatory functions (whether in connection with a reserved

legal activity or otherwise) an approved regulator must comply with the

requirements of this section.

(2)   

The approved regulator must, so far as is reasonably practicable, act in a way—

(a)   

which is compatible with the regulatory objectives, and

10

(b)   

which the approved regulator considers most appropriate for the

purpose of meeting those objectives.

(3)   

The approved regulator must have regard to—

(a)   

the principles under which regulatory activities should be transparent,

accountable, proportionate, consistent and targeted only at cases in

15

which action is needed, and

(b)   

any other principle appearing to it to represent the best regulatory

practice.

Separation of regulatory and representative functions

29      

Prohibition on the Board interfering with representative functions

20

(1)   

Nothing in this Act authorises the Board to exercise its functions in relation to

any representative function of an approved regulator.

(2)   

But subsection (1) does not prevent the Board exercising its functions for the

purpose of ensuring—

(a)   

that the exercise of an approved regulator’s regulatory functions is not

25

prejudiced by its representative functions, and

(b)   

that decisions relating to the exercise of an approved regulator’s

regulatory functions are, so far as reasonably practicable, taken

independently from decisions relating to the exercise of its

representative functions.

30

30      

Rules relating to the exercise of regulatory functions

(1)   

The Board must make rules (“internal governance rules”) setting out

requirements to be met by approved regulators for the purpose of ensuring—

(a)   

that the exercise of an approved regulator’s regulatory functions is not

prejudiced by its representative functions, and

35

(b)   

that decisions relating to the exercise of an approved regulator’s

regulatory functions are so far as reasonably practicable taken

independently from decisions relating to the exercise of its

representative functions.

(2)   

The internal governance rules must require each approved regulator to have in

40

place arrangements which ensure—

 
 

Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

15

 

(a)   

that the persons involved in the exercise of its regulatory functions are,

in that capacity, able to make representations to, be consulted by and

enter into communications with the Board, the Consumer Panel, the

OLC and other approved regulators, and

(b)   

that the exercise by those persons of those powers is not prejudiced by

5

the approved regulator’s representative functions and is, so far as

reasonably practicable, independent from the exercise of those

functions.

(3)   

The internal governance rules must also require each approved regulator—

(a)   

to take such steps as are reasonably practicable to ensure that it

10

provides such resources as are reasonably required for or in connection

with the exercise of its regulatory functions;

(b)   

to make such provision as is necessary to enable persons involved in

the exercise of its regulatory functions to be able to notify the Board

where they consider that their independence or effectiveness is being

15

prejudiced.

(4)   

The first set of rules under this section must be made before the day appointed

by the Lord Chancellor by order for the purposes of this section.

Performance targets

31      

Performance targets and monitoring

20

(1)   

The Board may—

(a)   

set one or more performance targets relating to the performance by an

approved regulator of any of its regulatory functions, or

(b)   

direct an approved regulator to set one or more performance targets

relating to the performance by the approved regulator of any of its

25

regulatory functions,

   

if the Board is satisfied that the conditions in subsection (2) are satisfied.

(2)   

Those conditions are—

(a)   

that an act or omission of the approved regulator (or a series of such

acts or omissions) has had, or is likely to have, an adverse impact on the

30

regulatory objectives taken as a whole, and

(b)   

that, in all the circumstances of the case, it is appropriate to take the

action proposed under subsection (1).

(3)   

A direction under subsection (1)(b) may impose conditions with which the

performance targets must conform.

35

(4)   

If the Board proposes to take action under this section in respect of an

approved regulator it must give notice to the approved regulator—

(a)   

describing the action it proposes to take,

(b)   

specifying the acts or omissions to which the proposed action relates

and any other facts which, in the opinion of the Board, justify the taking

40

of that action, and

(c)   

specifying the time (not being earlier than the end of the period of 28

days beginning with the day on which the notice is given) before which

representations with respect to that action may be made.

(5)   

Before taking action under this section, the Board must consider any

45

representations which are duly made.

 
 

Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

16

 

(6)   

In exercising its regulatory functions, an approved regulator must seek to meet

any performance target set for or by it under this section.

(7)   

The Board must publish any target set or direction given by it under this

section.

(8)   

An approved regulator must publish any target set by it pursuant to a direction

5

under subsection (1)(b).

(9)   

The Board may take such steps as it regards as appropriate to monitor the

extent to which any performance target set under this section is being, or has

been, met.

Directions

10

32      

Directions

(1)   

This section applies if the Board is satisfied—

(a)   

that an act or omission of an approved regulator (or a series of such acts

or omissions) has had, or is likely to have, a significant adverse impact

on the regulatory objectives taken as a whole,

15

(b)   

that an approved regulator has failed to comply with any requirement

imposed on it by or under this Act (including this section) or any other

enactment, or

(c)   

that an approved regulator—

(i)   

has failed to ensure that the exercise of its regulatory functions

20

is not prejudiced by any of its representative functions, or

(ii)   

has failed to ensure that decisions relating to the exercise of its

regulatory functions are, so far as reasonably practicable, taken

independently from decisions relating to the exercise of its

representative functions.

25

(2)   

If, in all the circumstances of the case, the Board is satisfied that it is

appropriate to do so, it may direct the approved regulator to take—

(a)   

in a case within subsection (1)(a), such steps as the Board considers will

counter the adverse impact, mitigate its effect or prevent its occurrence

or recurrence;

30

(b)   

in a case within subsection (1)(b) or (c), such steps as the Board

considers will remedy the failure, mitigate its effect or prevent its

recurrence.

(3)   

A direction under subsection (2)—

(a)   

may only require an approved regulator to take steps which it has

35

power to take;

(b)   

may require an approved regulator to take steps with a view to the

modification of any part of its regulatory arrangements.

(4)   

The Board may not exercise its powers under this section so as to give a

direction requiring an approved regulator to take steps in respect of a specific

40

disciplinary case or other specific regulatory proceedings (as opposed to all, or

a specified class of, such cases or proceedings).

(5)   

For the purposes of this section a direction to take steps includes a direction

which requires an approved regulator to refrain from taking a particular

course of action.

45

 
 

Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

17

 

(6)   

The power to give a direction under this section is subject to any provision

made by or under any other enactment.

(7)   

The Board may take such steps as it regards as appropriate to monitor the

extent to which a direction under this section is being, or has been, complied

with.

5

(8)   

Where the Board revokes a direction under this section, it must—

(a)   

give the approved regulator to whom the direction was given notice of

the revocation, and

(b)   

publish that notice.

33      

Directions: procedure

10

Schedule 7 makes provision about the procedure which must be complied with

before a direction is given under section 32.

34      

Enforcement of directions

(1)   

If at any time it appears to the Board that an approved regulator has failed to

comply with a direction given under section 32, the Board may make an

15

application to the High Court under this section.

(2)   

If, on an application under this section, the High Court decides that the

approved regulator has failed to comply with the direction in question, it may

order the approved regulator to take such steps as the High Court directs for

securing that the direction is complied with.

20

(3)   

This section is without prejudice to any other powers conferred on the Board

by this Part.

Censure

35      

Public censure

(1)   

This section applies if the Board is satisfied—

25

(a)   

that an act or omission of an approved regulator (or a series of such acts

or omissions) has had, or is likely to have, a significant adverse impact

on the regulatory objectives taken as a whole, and

(b)   

that, in all the circumstances of the case, it is appropriate to act under

this section.

30

(2)   

The Board may publish a statement censuring the approved regulator for the

act or omission (or series of acts or omissions).

36      

Public censure: procedure

(1)   

If the Board proposes to publish a statement under section 35 in respect of an

approved regulator, it must give notice to the approved regulator—

35

(a)   

stating that the Board proposes to publish such a statement and setting

out the terms of the proposed statement,

(b)   

specifying the acts or omissions to which the proposed statement

relates, and

 
 

Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

18

 

(c)   

specifying the time (not being earlier than the end of the period of 28

days beginning with the day on which the notice is given to the

approved regulator) before which representations with respect to the

proposed statement may be made.

(2)   

Before publishing the statement, the Board must consider any representations

5

which are duly made.

(3)   

Before varying any proposed statement set out in a notice under subsection

(1)(a), the Board must give notice to the approved regulator—

(a)   

setting out the proposed variation and the reasons for it, and

(b)   

specifying the time (not being earlier than the end of the period of 28

10

days beginning with the day on which the notice is given to the

approved regulator) before which representations with respect to the

proposed variation may be made.

(4)   

Before varying the proposal, the Board must consider any representations

which are duly made.

15

Financial penalties

37      

Financial penalties

(1)   

This section applies if the Board is satisfied—

(a)   

that an approved regulator has failed to comply with a requirement to

which this section applies, and

20

(b)   

that, in all the circumstances of the case, it is appropriate to impose a

financial penalty on the approved regulator.

(2)   

This section applies to any requirement imposed on the approved regulator—

(a)   

by rules under section 30 (internal governance rules),

(b)   

by a direction given under section 32 (Board directions), or

25

(c)   

by section 51 (control of practising fees charged by approved

regulators) or by rules under that section.

(3)   

The Board may impose a penalty, in respect of the failure, of such an amount

as it considers appropriate, but not exceeding the maximum amount

prescribed under subsection (4).

30

(4)   

The Board must make rules prescribing the maximum amount of a penalty

which may be imposed under this section.

(5)   

Rules may only be made under subsection (4) with the consent of the Lord

Chancellor.

(6)   

A penalty under this section is payable to the Board.

35

(7)   

In sections 38 to 40 references to a “penalty” are to a penalty under this section.

38      

Financial penalties: procedure

(1)   

If the Board proposes to impose a penalty on an approved regulator, it must

give notice to the approved regulator—

(a)   

stating that the Board proposes to impose a penalty and the amount of

40

the penalty proposed to be imposed,

(b)   

specifying the failure to which the proposed penalty relates,

 
 

Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

19

 

(c)   

specifying the other facts which, in the Board’s opinion, justify the

imposition of a penalty and the amount of the penalty, and

(d)   

specifying the time (not being earlier than the end of the period of 21

days beginning with the day on which the notice is published under

subsection (8)) before which representations with respect to the

5

proposed penalty may be made.

(2)   

Before imposing a penalty on an approved regulator, the Board must consider

any representations which are duly made.

(3)   

Where the Board proposes to vary the amount of a proposed penalty stated in

a notice under subsection (1)(a), the Board must give notice to the approved

10

regulator—

(a)   

setting out the proposed variation and the reasons for it, and

(b)   

specifying the time (not being earlier than the end of the period of 21

days beginning with the day on which the notice is published under

subsection (8)) before which representations with respect to the

15

proposed variation may be made.

(4)   

Before varying the proposal, the Board must consider any representations

which are duly made.

(5)   

As soon as practicable after imposing a penalty, the Board must give notice to

the approved regulator—

20

(a)   

stating that it has imposed a penalty on the approved regulator and its

amount,

(b)   

specifying the failure to which the penalty relates,

(c)   

specifying the other facts which, in the Board’s opinion, justify the

imposition of the penalty and its amount, and

25

(d)   

specifying a time (not being earlier than the end of the period of 3

months beginning with the day on which the notice is given to the

approved regulator), before which the penalty is required to be paid.

(6)   

The approved regulator may, within the period of 21 days beginning with the

day on which it is given the notice under subsection (5), make an application

30

to the Board for it to specify different times by which different portions of the

penalty are to be paid.

(7)   

If an application is made under subsection (6) in relation to a penalty, the

penalty is not required to be paid until the application has been determined.

(8)   

The Board must publish any notice given under this section.

35

39      

Appeals against financial penalties

(1)   

An approved regulator on whom a penalty is imposed may appeal to the court

on one or more of the appeal grounds.

(2)   

The appeal grounds are—

(a)   

that the imposition of the penalty was not within the power of the

40

Board under section 37;

(b)   

that any of the requirements of section 38 have not been complied with

in relation to the imposition of the penalty and the interests of the

approved regulator have been substantially prejudiced by the non-

compliance;

45

(c)   

that the amount of the penalty is unreasonable;

 
 

Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

20

 

(d)   

that it was unreasonable of the Board to require the penalty imposed or

any portion of it to be paid by the time or times by which it was

required to be paid.

(3)   

An appeal under subsection (1) must be made—

(a)   

within the period of 3 months beginning with the day on which the

5

notice under section 38(5) is given to the approved regulator in respect

of the penalty, or

(b)   

where the appeal relates to a decision of the Board on an application by

the approved regulator under section 38(6), within the period of 3

months beginning with the day on which the approved regulator is

10

notified of the decision.

(4)   

On any such appeal, where the court considers it appropriate to do so in all the

circumstances of the case and is satisfied of one or more of the appeal grounds,

the court may—

(a)   

quash the penalty,

15

(b)   

substitute a penalty of such lesser amount as the court considers

appropriate, or

(c)   

in the case of the appeal ground in subsection (2)(d), substitute for any

time imposed by the Board a different time or times.

(5)   

Where the court substitutes a penalty of a lesser amount it may require the

20

payment of interest on the substituted penalty at such rate, and from such time,

as it considers just and equitable.

(6)   

Where the court specifies as a time by which the penalty, or a portion of the

penalty, is to be paid a time before the determination of the appeal under this

section, it may require the payment of interest on the penalty, or portion, from

25

that time at such rate as it considers just and equitable.

(7)   

Except as provided by this section, the validity of a penalty is not to be

questioned by any legal proceedings whatever.

(8)   

In this section “the court” means the High Court.

40      

Recovery of financial penalties

30

(1)   

If the whole or any part of a penalty is not paid by the time by which it is

required to be paid, the unpaid balance from time to time carries interest at the

rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110).

(2)   

If an appeal is made under section 39 in relation to a penalty, the penalty is not

required to be paid until the appeal has been determined or withdrawn.

35

(3)   

If the Board grants an application under subsection (6) of section 38 in relation

to a penalty but any portion of the penalty is not paid by the time specified in

relation to it by the Board under that subsection, the Board may where it

considers it appropriate require so much of the penalty as has not already been

paid to be paid immediately.

40

(4)   

Where a penalty, or any portion of it, has not been paid by the time when it is

required to be paid and—

(a)   

no appeal relating to the penalty has been made under section 39

during the period within which such an appeal can be made, or

(b)   

an appeal has been made under that section and determined or

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withdrawn,

 
 

 
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