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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order

174

 

      (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 applicant as a licensing authority in relation to the

reserved legal activity or activities in question, and

(b)   

to approve what the applicant proposes as its licensing rules if such

5

an order is made (“the proposed licensing rules”).

      (3)  

But the body may make an application under this paragraph in relation to a

reserved legal activity only if—

(a)   

it is a relevant approved regulator in relation to the activity, or

(b)   

it has made an application under Part 2 of Schedule 4 (designation of

10

approved regulators) for the Board to recommend that an order be

made by the Lord Chancellor designating the body as an approved

regulator in relation to the activity.

      (4)  

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—

15

(a)   

a statement of the reserved legal activity or activities to which it

relates,

(b)   

details of the applicant’s proposed licensing rules,

(c)   

such explanatory material as the applicant considers is likely to be

needed for the purposes of this Part of this Schedule, and

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(d)   

the prescribed fee.

      (5)  

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.

      (6)  

An applicant may, at any time, withdraw the application by giving notice to

that effect to the Board.

25

Dismissal of application

2     (1)  

The Board may refuse to consider, or to continue its consideration of, an

application.

      (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

30

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

decision and of its reasons for it.

      (4)  

The Board must publish a notice given under sub-paragraph (3).

35

Board’s duty to seek advice

3     (1)  

The Board must give each of the persons listed in sub-paragraph (2)—

(a)   

a copy of the application and accompanying material, and

(b)   

a notice specifying a period within which any advice given under

paragraphs 4 to 6 must be given.

40

      (2)  

Those persons are—

(a)   

the OFT,

(b)   

the Consumer Panel,

(c)   

the Lord Chief Justice, and

 

 

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order

175

 

(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).

Advice of Office of Fair Trading

5

4     (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 15 in accordance with the

recommendation applied for would (or would be likely to) prevent, restrict

10

or distort competition within the market for reserved legal services to any

significant extent.

Advice of the Consumer Panel

5     (1)  

The Consumer Panel must give the Board such advice as the Consumer

Panel thinks fit regarding whether the application should be granted.

15

      (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 15 in accordance with the recommendation applied for.

Advice of selected consultees

6          

A selected consultee may give the Board such advice as the selected

20

consultee thinks fit in respect of the application.

Advice of the Lord Chief Justice

7     (1)  

The Board must give the Lord Chief Justice—

(a)   

a copy of any advice duly given under paragraphs 4 to 6, and

(b)   

a notice specifying a period within which any advice under this

25

paragraph must be given.

      (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.

      (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

30

making of an order under paragraph 15 in accordance with the

recommendation applied for.

Information obtained by consultees

8          

A person (“the consultee”) to whom a copy of the application is given under

paragraph 3(1) may, for the purposes of giving advice under paragraphs 4

35

to 7, request the applicant or any other person to provide the consultee with

such additional information as may be specified by the consultee.

 

 

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order

176

 

Representations by applicant

9     (1)  

The Board must give the applicant a copy of any advice duly given under

paragraphs 4 to 7.

      (2)  

The applicant may make to the Board—

(a)   

written representations, and

5

(b)   

if the Board authorises it to do so, oral representations,

           

about the advice.

      (3)  

The Board must make rules governing the making of oral and written

representations.

      (4)  

Representations under this paragraph must be made within—

10

(a)   

the period of 28 days beginning with the day on which the copy of

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

those representations.

15

      (6)  

Before preparing that report, the Board must—

(a)   

give the applicant a reasonable opportunity to comment on a draft of

the report, and

(b)   

have regard to any comments duly made.

Publication of advice and representations etc

20

10    (1)  

The Board must, as soon as practicable after the end of the period within

which representations under paragraph 9 may be made, publish—

(a)   

any advice duly given under paragraphs 4 to 7,

(b)   

any written representations duly made under paragraph 9 and the

report (if any) prepared under that paragraph.

25

      (2)  

Nothing in sub-paragraph (1) operates—

(a)   

to prevent a person who gives advice under paragraphs 4 to 7 from

publishing that advice, or

(b)   

to prevent a person who makes representations under paragraph 9

from publishing those representations.

30

      (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

seriously and prejudicially affect the interests of that individual.

35

Rules governing decisions by the Board

11    (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

only if it is satisfied—

40

(a)   

that the applicant’s proposed licensing rules in relation to the

activity comply with the requirements of section 83;

 

 

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order

177

 

(b)   

that, if an order were to be made under paragraph 15 designating the

body in relation to the activity, there would be a body with power to

hear and determine appeals which, under this Part or the applicant’s

proposed licensing rules, may be made against decisions of the

applicant;

5

(c)   

that, if an order were to be made under paragraph 15 designating the

body in relation to the activity, the applicant would have appropriate

internal governance arrangements in place at the time the order takes

effect;

(d)   

that, if an order were made under paragraph 15 designating the body

10

in relation to the activity, the applicant would be competent, and

have sufficient resources, to perform the role of licensing authority in

relation to the activity at the time the order takes effect.

      (3)  

The rules made for the purposes of sub-paragraph (2)(c) must in particular

require the Board to be satisfied—

15

(a)   

that the exercise of the applicant’s regulatory functions would not be

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.

20

Determination of applications

12    (1)  

After considering—

(a)   

the application and accompanying material,

(b)   

any other information provided by the applicant,

(c)   

any advice duly given under paragraphs 4 to 7,

25

(d)   

any representations duly made under paragraph 9, and

(e)   

any other information which the Board considers relevant to the

application,

           

the Board must decide whether to grant the application.

      (2)  

Where the application relates to more than one reserved legal activity, the

30

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

notice”).

      (4)  

Where the Board decides to refuse the application (in whole or in part), the

decision notice must specify the reasons for that decision.

35

      (5)  

The Board must publish the decision notice.

13    (1)  

Where an application is made under this Part, the Board must give the

decision notice under paragraph 12 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.

40

      (3)  

The Board may, before the end of the decision period, issue a notice

extending that period by a period specified in the notice.

      (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—

45

 

 

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order

178

 

(a)   

consulted the OFT, the Consumer Panel and the Lord Chief Justice,

and

(b)   

obtained the Lord Chancellor’s consent to the extension.

      (6)  

A notice under sub-paragraph (3) must state the Board’s reasons for

extending the decision period.

5

      (7)  

The Board must publish any notice issued under sub-paragraph (3).

Effect of grant of application

14    (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

10

designating the applicant as a licensing authority in relation to the reserved

legal activity or activities in question.

      (3)  

The Board must publish any recommendation made under sub-paragraph

(2).

      (4)  

The Board must make available to the Lord Chancellor—

15

(a)   

any advice duly given under paragraphs 4 to 7,

(b)   

any written representations duly made under paragraph 9 and the

report (if any) prepared under that paragraph, and

(c)   

any other material considered by the Board for the purpose of

determining the application.

20

Lord Chancellor’s decision to make an order

15    (1)  

Where a recommendation is made to the Lord Chancellor under paragraph

14, the Lord Chancellor may—

(a)   

make an order in accordance with the recommendation, or

(b)   

refuse to make such an order.

25

      (2)  

Where the recommendation relates to more than one reserved legal activity,

the Lord Chancellor may make an order under sub-paragraph (1)(a) in

relation to all or any of them.

      (3)  

But if the application, in relation to a particular reserved legal activity, was

made in reliance on paragraph 1(3)(b), the Lord Chancellor must not make

30

an order in relation to that activity unless the Lord Chancellor has made an

order under Part 2 of Schedule 4 designating the body as an approved

regulator in relation to that activity.

      (4)  

The Lord Chancellor must—

(a)   

decide whether to make an order under this paragraph, and

35

(b)   

give notice of that decision (“the decision notice”) to the applicant,

           

within the period of 90 days beginning with the day on which the

recommendation was made.

      (5)  

If the Lord Chancellor decides not to make an order in accordance with the

whole or part of the recommendation, the decision notice must state the

40

reasons for the decision.

      (6)  

The Lord Chancellor must publish the decision notice.

 

 

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 2 — Cancellation of designation by order

179

 

Approval of licensing rules

16    (1)  

Where an order is made by the Lord Chancellor under paragraph 15, the

applicant’s proposed licensing rules are at the same time treated as having

been approved by the Board.

      (2)  

But where the order relates to one or more (but not all) of the reserved legal

5

activities to which the application related, sub-paragraph (1) has effect as if

the reference to the applicant’s proposed licensing rules were a reference to

those rules excluding any provision made in respect of any activities

excluded from the order.

      (3)  

Sub-paragraph (1) is without prejudice to the Board’s power to give

10

directions under section 32 (powers to direct an approved regulator to take

steps in certain circumstances, including steps to amend its regulatory

arrangements).

Part 2

Cancellation of designation by order

15

Introductory

17         

This Part of this Schedule applies where the Board considers that it may be

appropriate for it to make a recommendation under section 76(5).

Notification of the licensing authority

18    (1)  

The Board must give the licensing authority a notice (“a warning notice”)

20

accompanied by a draft of the proposed recommendation.

      (2)  

The warning notice must—

(a)   

state that the Board proposes to make a recommendation under

subsection (5) of section 76 in the form of the accompanying draft,

and

25

(b)   

state the reasons why the Board is satisfied of the matters mentioned

in paragraphs (a) and (b) of that subsection.

      (3)  

The Board must publish a copy of the warning notice.

      (4)  

The licensing authority may make to the Board—

(a)   

written representations, and

30

(b)   

if the Board authorises it to do so, oral representations,

           

about the proposed recommendation.

      (5)  

The Board must make rules governing the making of oral and written

representations.

      (6)  

Representations under this paragraph must be made within—

35

(a)   

the period of 28 days beginning with the day on which the warning

notice is given to the licensing authority, or

(b)   

such longer period as the Board may specify in a particular case.

      (7)  

The Board must consider any representations duly made by the licensing

authority.

40

 

 

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 2 — Cancellation of designation by order

180

 

      (8)  

Where oral representations are duly made, the Board must prepare a report

of those representations.

      (9)  

Before preparing that report, the Board must—

(a)   

give the licensing authority a reasonable opportunity to comment on

a draft of the report, and

5

(b)   

have regard to any comments duly made.

Board’s duty to seek advice

19    (1)  

After complying with paragraph 18, the Board must give each of the persons

listed in sub-paragraph (2)—

(a)   

a copy of the warning notice and the accompanying draft,

10

(b)   

a copy of any written representations duly made by the licensing

authority under paragraph 18 and a copy of the report (if any)

prepared under that paragraph, and

(c)   

a notice specifying a period within which any advice under

paragraphs 20 to 22 must be given.

15

      (2)  

Those persons are—

(a)   

the OFT,

(b)   

the Consumer Panel,

(c)   

the Lord Chief Justice, and

(d)   

such other persons as the Board considers it reasonable to consult in

20

respect of the proposed recommendation.

      (3)  

In this Part of this Schedule, in relation to a proposed recommendation,

“selected consultee” means a person within sub-paragraph (2)(d).

Advice of Office of Fair Trading

20    (1)  

The OFT must give the Board such advice as it thinks fit regarding whether

25

the proposed recommendation should be made.

      (2)  

In deciding what advice to give, the OFT must, in particular, have regard to

whether making an order under section 76 in accordance with the proposed

recommendation would (or would be likely to) prevent, restrict or distort

competition within the market for reserved legal services to any significant

30

extent.

Advice of the Consumer Panel

21    (1)  

The Consumer Panel must give the Board such advice as it thinks fit

regarding whether the proposed recommendation should be made.

      (2)  

In deciding what advice to give, the Consumer Panel must, in particular,

35

have regard to the likely impact on consumers of making an order under

section 76 in accordance with the proposed recommendation.

Advice of selected consultees

22         

A selected consultee may give the Board such advice as the selected

consultee thinks fit in respect of the proposed recommendation.

40

 

 

 
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