Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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Legal Services Bill [HL]

Legal Services Bill [HL]
Schedule 22 — Transitional provision
352

Schedule 22
Section 210

Transitional provision
Transitory power to modify the functions of bodies
1     (1)
Paragraphs 2 to 4 have effect until such time as the Board is first constituted
in accordance with paragraph 1 of Schedule 1.
5
      (2)
Where an order under paragraph 2 has effect immediately before that time,
it is to be treated from that time as if it were an order made by the Lord
Chancellor under section 69 (and in accordance with that section and section
70).
      (3)
Where that order is made by virtue of paragraph 4, the reference in sub-
10
paragraph (2) to section 69 is a reference to that section as modified by
section 181.
2     (1)
The Lord Chancellor may by order modify, or make any other provision
relating to, the functions of a designated regulator or any other body.
      (2)
For this purpose “designated regulator” means—
15
(a)
The Law Society;
(b)
The General Council of the Bar;
(c)
The Master of the Faculties;
(d)
The Institute of Legal Executives;
(e)
the Council for Licensed Conveyancers;
20
(f)
The Chartered Institute of Patent Attorneys;
(g)
The Institute of Trade Mark Attorneys;
(h)
The Association of Law Costs Draftsmen;
(i)
any other body which is a body to which sub-paragraph (3) applies.
      (3)
This sub-paragraph applies to—
25
(a)
a body designated as an authorised body for the purposes of section
27 or 28 of the Courts and Legal Services Act 1990 (c. 41) (rights of
audience and rights to conduct litigation);
(b)
a body approved under Schedule 9 to that Act (approval of body to
grant exemption from prohibition on preparation of probate papers
30
etc);
(c)
a body prescribed by regulations under section 113 of that Act
(administration of oaths and taking of affidavits).
      (4)
The Lord Chancellor may make an order under sub-paragraph (1) only if—
(a)
the body to which the order relates has made a recommendation
35
under this paragraph to which was annexed a draft order, and
(b)
the body to which the order relates consents to the order which is
made.
      (5)
The Lord Chancellor may make an order under this paragraph only for the
purpose of enabling the body to which it relates to do one or more of the
40
following—
(a)
to become a body within sub-paragraph (3);
(b)
to grant its members rights for the purposes of section 27 or 28 of the
Courts and Legal Services Act 1990, to exempt its members for the

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Schedule 22 — Transitional provision
353

purposes of section 55 of that Act or to authorise its members for the
purposes of section 113 of that Act;
(c)
if it is or becomes a designated regulator, to regulate its members
more effectively or efficiently;
(d)
if it is or becomes a designated regulator, to expand the categories of
5
persons who are eligible to be members of the body;
(e)
to do any of the things mentioned in paragraphs (a) to (e) of section
69(3) at a time after paragraph 1 of Schedule 4 comes into force.
      (6)
An order under this paragraph may make provision in relation to the body
to which the order relates, and members of that body, corresponding to the
10
provision which by virtue of subsection (4) or (5) of section 69 may be made
by an order under that section in relation to an approved regulator and
persons authorised by that regulator to carry on reserved legal activities or
to provide immigration advice or immigration services.
      (7)
Any provision made by an order under this paragraph may be expressed to
15
be conditional upon—
(a)
the coming into force of paragraph 1 of Schedule 4;
(b)
the body to which the order relates being designated by an order
under Part 2 of that Schedule as an approved regulator, or by an
order under Part 1 of Schedule 10 as a licensing authority, in relation
20
to one or more reserved legal activities specified in the order;
(c)
the body to which the order relates becoming a designated
qualifying regulator under section 86A of the Immigration and
Asylum Act 1999 (c. 33).
      (8)
An order under this paragraph may modify provisions made by or under
25
any enactment (including this Act or any Act passed after this Act),
prerogative instrument or other instrument or document.
      (9)
The powers to make an order conferred by this paragraph are without
prejudice to any powers (statutory or non-statutory) which a designated
regulator or other body may have apart from this section.
30
     (10)
In this paragraph “member” in relation to a body includes any person who
is not a member of the body but who may be subject to disciplinary sanctions
for failure to comply with any of its rules.
3     (1)
This paragraph applies where a body makes a recommendation under
paragraph 2.
35
      (2)
The Lord Chancellor must publish a document containing—
(a)
the recommendation, and
(b)
the draft order annexed to it.
      (3)
The document must be accompanied by a notice which states that
representations about it may be made to the Lord Chancellor within a
40
specified period.
      (4)
The Lord Chancellor must give a copy of the document to the Office of Fair
Trading and the Lord Chief Justice, and invite each of them to provide
advice on it within that period.
      (5)
The Lord Chancellor may give a copy of the document to the Legal Services
45
Consultative Panel or any other person, and invite them to provide advice
on it within that period.

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      (6)
The Lord Chancellor must have regard to any representations and advice
duly given.
      (7)
If the order which the Lord Chancellor proposes to make differs from the
draft order published under sub-paragraph (2), the Lord Chancellor must,
before making the order, publish the revised draft order along with a
5
statement detailing the changes made and the reasons for those changes.
4
Paragraphs 2 and 3 apply in relation to the Solicitors Disciplinary Tribunal
as they apply in relation to a designated regulator, but as if in paragraph 2—
(a)
in sub-paragraph (4)(a) the reference to the body to which the order
relates were a reference to the Solicitors Disciplinary Tribunal or the
10
Law Society, and
(b)
for sub-paragraph (5) of that paragraph there were substituted—
    “(5)
The Lord Chancellor may make an order under this
paragraph only for the purpose of enabling the Solicitors
Disciplinary Tribunal to carry out its role more effectively
15
or efficiently.”, and
(c)
sub-paragraphs (6) and (7) of that paragraph were omitted.
Approved regulators
5     (1)
Sub-paragraph (2) applies where during the pre-commencement period—
(a)
an Order in Council is made designating a body as an authorised
20
body for the purposes of section 27 of the Courts and Legal Services
Act 1990 (c. 41) (rights of audience) and that body’s qualification
regulations and rules of conduct (within the meaning of that section)
have been approved for the purposes of that section,
(b)
an Order in Council is made designating a body as an authorised
25
body for the purposes of section 28 of that Act (right to conduct
litigation) and that body’s qualification regulations and rules of
conduct (within the meaning of that section) have been approved for
the purposes of that section,
(c)
an order is made under paragraph 4 of Schedule 9 to that Act
30
(approval of body to grant exemption from prohibition on
preparation of probate papers etc), or
(d)
regulations are made prescribing a body for the purposes of section
113 of that Act (administration of oaths and taking of affidavits).
      (2)
The Lord Chancellor may by order modify the Table in paragraph 1 of
35
Schedule 4 (existing regulators) so as—
(a)
to insert, in the first column, a reference to the body and, in the
second column, a reference to the relevant activities, or
(b)
if the body is already listed in the first column, to add a reference to
the relevant activities to the corresponding entry in the second
40
column.
      (3)
Sub-paragraph (4) applies where during the pre-commencement period—
(a)
an Order in Council is made revoking the designation of a body as
an authorised body for the purposes of section 27 of the Courts and
Legal Services Act 1990,
45
(b)
an Order in Council is made revoking the designation of a body as
an authorised body for the purposes of section 28 of that Act,

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Schedule 22 — Transitional provision
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(c)
an order is made under paragraph 6 of Schedule 9 to that Act
revoking a body’s approval, or
(d)
regulations prescribing a body for the purposes of section 113 of that
Act are revoked.
      (4)
The Lord Chancellor may by order modify the Table in paragraph 1 of
5
Schedule 4 so as to—
(a)
remove any reference to the relevant activities from the entry in the
second column of that Table corresponding to the entry for the body
in the first column, and
(b)
if there are no other activities in that entry in the second column,
10
remove the reference to the body from the first column of that Table.
      (5)
An order under sub-paragraph (2) in relation to a body may—
(a)
in a case within sub-paragraph (1)(a) or (b), modify Part 1 of
Schedule 5 (authorised persons: continuity of rights) so as to ensure
the continuity of any authority given by the body to a person to
15
exercise rights of audience or, as the case may be, to conduct
litigation;
(b)
in a case within sub-paragraph (1)(c), modify Part 1 of that Schedule
(authorised persons: continuity of rights) to provide for exemptions
granted by a body by virtue of section 55 of the Courts and Legal
20
Services Act 1990 (c. 41) (persons exempt from prohibition on
preparation of probate papers etc) which have effect immediately
before paragraph 1 of Schedule 4 comes into force to be deemed to be
authorisations to carry on probate activities granted by that body at
the time that paragraph comes into force;
25
(c)
in a case within sub-paragraph (1)(d), modify Part 2 of Schedule 5, to
provide during the transitional period for members of the body to be
deemed to be authorised by the body to carry on the administration
of oaths.
      (6)
An order under sub-paragraph (4) in relation to a body may—
30
(a)
in a case within sub-paragraph (3)(a) or (b), modify Part 1 of
Schedule 5 (authorised persons: continuity of rights) so as to remove
provision made to ensure the continuity of any authority given by
the body to a person to exercise rights of audience or, as the case may
be, to conduct litigation;
35
(b)
in a case within sub-paragraph (3)(c), modify Part 1 of that Schedule
so as to remove any provision deeming persons to have been
authorised by the body to carry on probate activities;
(c)
in a case within sub-paragraph (3)(d), modify Part 2 of that Schedule
so as to remove any provision deeming persons to have been
40
authorised by the body to carry on the administration of oaths.
      (7)
No order under this paragraph may be made after the end of the pre-
commencement period.
      (8)
In this paragraph—
“pre-commencement period” means the period before the coming into
45
force of paragraph 1 of Schedule 4 (including any period before the
passing of this Act);
“relevant activities” means—
(a)
in a case within sub-paragraph (1)(a) or (3)(a), the exercise of
a right of audience;
50

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Schedule 22 — Transitional provision
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(b)
in a case within sub-paragraph (1)(b) or (3)(b), the conduct of
litigation;
(c)
in a case within sub-paragraph (1)(c) or (3)(c), probate
activities;
(d)
in a case within sub-paragraph (1)(d) or (3)(d), the
5
administration of oaths;
“the transitional period” has the meaning given by paragraph 3 of
Schedule 5.
Licensed Conveyancers
6     (1)
In this paragraph the transitional period means the period which—
10
(a)
begins with the day on which paragraph 29 of Schedule 17 (which
amends Schedule 3 to the Administration of Justice Act 1985 (c. 61))
comes into force, and
(b)
ends with the day on which members of the new Council are first
appointed in accordance with a scheme approved by the Legal
15
Services Board under Schedule 3 to that Act (as amended by that
paragraph).
      (2)
During the transitional period, the Council for Licensed Conveyancers is to
be constituted in accordance with Schedule 3 to that Act as it had effect
immediately before paragraph 29 of Schedule 17 came into force.
20
      (3)
The term of office of persons who are members of the Council for Licensed
Conveyancers by virtue of sub-paragraph (2) immediately before the end of
the transitional period ends at the same time as the transitional period.
7     (1)
This paragraph applies to any licence issued by the Council for Licensed
Conveyancers under section 15 of the Administration of Justice Act 1985
25
which—
(a)
is endorsed under section 15(7) of that Act, and
(b)
is in force when paragraph 4(4) of Schedule 17 (which repeals
subsections (7) and (8) of section 15 of that Act (endorsement of
licences)) comes into force.
30
      (2)
Notwithstanding the repeal of those subsections, until the licence expires—
(a)
the licence continues to have effect in accordance with the
endorsement, and
(b)
rules made under section 15(8) continue to have effect in relation to
the licence.
35
8
Until the repeal of paragraphs 17 and 19 of Schedule 8 to the Courts and
Legal Services Act 1990 (c. 41) by Schedule 23 to this Act comes into force,
those paragraphs have effect as if—
(a)
in paragraph 17 (inadequate professional services: failure to comply
with direction), after sub-paragraph (2) there were inserted—
40
    “(3)
In relation to proceedings before the Discipline and
Appeals Committee in respect of such a complaint, the
Committee may make such order as they consider fit as to
the payment of costs by—
(a)
the Council;
45
(b)
the licensed conveyancer against whom the
complaint was made;

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(c)
if the person on whose complaint the proceedings
were brought was heard (in person, or through a
representative) by the Committee in the course of
the proceedings, that person.”, and
(b)
paragraph 19(b) (inadequate professional services: costs) were
5
omitted.”
Exercise of Board’s functions pending appointment of Chief Executive
9     (1)
Until the first Chief Executive of the Board is appointed under paragraph 11
of Schedule 1, the Board’s functions under—
(a)
Schedule 1,
10
(b)
Schedule 15, and
(c)
paragraph 10(8) of this Schedule,

may be exercised by the ordinary members of the Board.
      (2)
For that purpose “ordinary member” has the same meaning as in Schedule 1.
Interim Chief Executive of the OLC
15
10    (1)
The Lord Chancellor may appoint a person as the Interim Chief Executive of
the OLC.
      (2)
The Interim Chief Executive is to be—
(a)
appointed on terms and conditions determined by the Lord
Chancellor, and
20
(b)
paid by the Lord Chancellor in accordance with provision made by
or under the terms of appointment.
      (3)
Appointment as the Interim Chief Executive does not confer the status of
Crown servant.
      (4)
In this paragraph—
25
“the first interim period” means the period which—
(a)
begins when sub-paragraph (5) comes into force, and
(b)
ends when the chairman of the Board, and at least 7 other
ordinary members of the Board (within the meaning of
Schedule 1), have been appointed in accordance with
30
paragraph 1 of Schedule 1;
“the second interim period” means the period which—
(a)
begins when the chairman of the Board, and at least 7 other
ordinary members of the Board (within the meaning of
Schedule 1), have been appointed in accordance with
35
paragraph 1 of Schedule 1, and
(b)
ends when the membership of the OLC is first constituted in
accordance with paragraph 1 of Schedule 15.
      (5)
The Interim Chief Executive may incur expenditure and do other things in
the name of and on behalf of the OLC—
40
(a)
from the beginning of the first interim period, and
(b)
after that time until the OLC determines otherwise.
      (6)
The things which may be done under sub-paragraph (5)—

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(a)
include the appointment of staff under paragraph 11 of Schedule 15
and making arrangements for assistance under paragraph 15 of that
Schedule, but
(b)
do not include the appointment of an ombudsman under section 122
or the making of scheme rules.
5
      (7)
During the first interim period, the Interim Chief Executive must comply
with any supervisory directions given by the Lord Chancellor.
      (8)
During the second interim period, the Interim Chief Executive must comply
with any supervisory directions given by the Board.
      (9)
The supervisory directions are—
10
(a)
a direction requiring the Interim Chief Executive to provide the
person giving the direction with a report on, or information relating
to, such matters as are specified in the direction;
(b)
a direction requiring the Interim Chief Executive to obtain the
approval of the person giving the direction before incurring
15
expenditure in such circumstances as are specified in the direction;
(c)
any other direction relating to the exercise of the Interim Chief
Executive’s functions which the person giving the direction
considers appropriate.
     (10)
Paragraph 31 of Schedule 15 (exemption from liability in damages) applies
20
to the Interim Chief Executive as it applies to a member of the OLC.
Solicitors
11    (1)
Until such time as section 59(1) of the Constitutional Reform Act 2005 (c. 4)
comes into force, the reference in section 208(1), in the definition of
“solicitor”, to the Senior Courts is to be read as a reference to the Supreme
25
Court.
      (2)
Until such time as section 59(2) of that Act (renaming of Supreme Court of
Judicature of Northern Ireland as Court of Judicature of Northern Ireland)
comes into force, the references in sections 8(5) and 191(5)(e), paragraph
2(4)(f) of Schedule 1, paragraphs 1(9) and 2(5) of Schedule 3 and paragraph
30
2(3)(e) of Schedule 15 to the Court of Judicature of Northern Ireland are to
be read as references to the Supreme Court of Judicature of Northern
Ireland.
Solicitors Act 1974 (c. 47)
12    (1)
During the transitional period, the reference to an authorised person in
35
section 1A(d) of the Solicitors Act 1974 (practising certificates: employed
solicitors) is to be read as a reference to a person listed in paragraph 15(1),
other than a person listed in paragraph (b) or (c) of that paragraph.
      (2)
For this purpose “the transitional period” means the period which—
(a)
begins with the day on which section 1A(d) of the Solicitors Act 1974
40
(as inserted by Schedule 16) comes into force, and
(b)
ends with the day appointed for the coming into force of section 13
(entitlement to carry on a reserved legal activity).
13    (1)
During the transitional period, section 44B of the Solicitors Act 1974
(provision of information and documents by solicitors etc) has effect as if the
45