Legal Services Bill [HL]

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Legal Services Bill [HL]

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(3)
The Board—
(a)
may delegate any of its functions as a licensing authority to such
persons as it considers appropriate;
(b)
must take such steps as are necessary to ensure an appropriate financial
and organisational separation between the activities of the Board that
5
relate to the carrying out of its functions as a licensing authority and the
other activities of the Board.
(4)
In this Part “relevant licensing authority”—
(a)
in relation to a licensed body, means the licensing authority by which
the licensed body is authorised to carry on an activity which is a
10
reserved legal activity;
(b)
in relation to an applicant for a licence, means the licensing authority to
which the application is made.
74
Designation of approved regulator as licensing authority
Part 1 of Schedule 10 makes provision for approved regulators to be
15
designated, by order, as licensing authorities in relation to one or more
reserved legal activities.
75
Automatic cancellation of designation as licensing authority
(1)
This section applies where a body is designated—
(a)
as an approved regulator in relation to a reserved legal activity (“the
20
activity”), and
(b)
as a licensing authority in relation to the activity.
(2)
If the Lord Chancellor makes an order under section 45 cancelling the body’s
designation as an approved regulator in relation to the activity, the body’s
designation as a licensing authority in relation to the activity is also cancelled.
25
(3)
The cancellation takes effect at the same time as cancellation of the body’s
designation as an approved regulator.
76
Cancellation of designation as licensing authority by order
(1)
The Lord Chancellor may by order cancel an approved regulator’s designation
as a licensing authority—
30
(a)
in relation to all the reserved legal activities in relation to which it is
designated, or
(b)
in relation to one or more, but not all, of those reserved legal activities,

with effect from a date specified in the order.
(2)
But the Lord Chancellor may only make an order under subsection (1) in
35
accordance with a recommendation made by the Board under subsection (3) or
(5).
(3)
The Board must recommend that an order is made cancelling an approved
regulator’s designation as a licensing authority in relation to one or more
reserved legal activities, if—
40
(a)
the approved regulator applies to the Board for such a
recommendation to be made,

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(b)
the application is made in such form and manner as may be prescribed
by rules made by the Board, and is accompanied by the prescribed fee,
and
(c)
the approved regulator publishes a notice giving details of the
application in accordance with such requirements as may be specified
5
in rules made by the Board.
(4)
In this section “the prescribed fee”, in relation to an application, means the fee
specified in or determined in accordance with rules made by the Board, with
the consent of the Lord Chancellor.
(5)
The Board may recommend that an order is made cancelling an approved
10
regulator’s designation as a licensing authority in relation to one or more
reserved legal activities if it is satisfied—
(a)
that an act or omission of the licensing authority (or a series of such acts
or omissions) has had, or is likely to have, an adverse impact on the
regulatory objectives, and
15
(b)
that, in all the circumstances of the case, it is appropriate to cancel the
approved regulator’s designation in relation to the activity or activities
in question.
(6)
The Board may not determine that it is appropriate to cancel an approved
regulator’s designation as a licensing authority in relation to an activity or
20
activities unless it is satisfied that the matter cannot be adequately addressed
by the Board exercising the powers available to it under sections 31 to 43.
(7)
Part 2 of Schedule 10 makes further provision about the making of
recommendations under subsection (5).
(8)
If the Lord Chancellor decides not to make an order in response to a
25
recommendation made under subsection (3) or (5), the Lord Chancellor must
give the Board notice of the decision and the reasons for it.
(9)
The Lord Chancellor must publish a notice given under subsection (8).
77
Cancellation of designation: further provision
(1)
This section applies where an approved regulator (“the former authority”) has
30
its designation as a licensing authority in relation to one or more reserved legal
activities cancelled—
(a)
by virtue of section 75, or
(b)
by an order under section 76.
(2)
The Lord Chancellor may by order make—
35
(a)
such modifications of provisions made by or under any enactment
(including this Act or any enactment passed after this Act), prerogative
instrument or other instrument or document, and
(b)
such transitional or consequential provision,

as the Lord Chancellor considers necessary or expedient in consequence of the
40
cancellation.
(3)
The Lord Chancellor may, by order, make transfer arrangements.
(4)
“Transfer arrangements” are arrangements in accordance with which each
consenting licensed body is, from the time the cancellation takes effect, treated
as being authorised to carry on each protected activity by virtue of a licence
45

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issued under this Part by a licensing authority, in relation to the protected
activity, which consents to the transfer arrangements.
(5)
“Consenting licensed body” means a licensed body authorised by the former
authority which consents to the transfer arrangements.
(6)
The transfer arrangements—
5
(a)
must make such provision as is necessary to ensure that, where a
licensed body is treated under those arrangements as being authorised
to carry on a protected activity by the new authority, that licensed body
is subject to the licensing rules of the new authority;
(b)
may make provision requiring amounts held by the former authority
10
which represent amounts paid to it by way of licensing fees by the
consenting licensed bodies (or a part of the amounts so held) to be paid
to the new authority and treated as if they were amounts paid by those
licensed bodies by way of licensing fees to the new authority.
(7)
Subsection (6)(a) is subject to any transitional provision which may be made by
15
the transfer arrangements, including provision modifying the licensing rules of
the new authority as they apply to the bodies to whom the transfer
arrangements apply.
(8)
The Lord Chancellor may make an order under this section only if—
(a)
the Board has made a recommendation in accordance with section 78,
20
and
(b)
the order is in the same form as, or in a form which is not materially
different from, the draft order annexed to that recommendation.
(9)
For the purposes of this section—
(a)
a licensed body is “authorised by the former authority” if immediately
25
before the time the cancellation takes effect the body is, by virtue of a
licence under this Part, authorised by the former authority to carry on
an activity which is a reserved legal activity to which the cancellation
relates, and
(b)
in relation to that body—
30
(i)
the activity which the body is authorised to carry on as
mentioned in paragraph (a) is a “protected activity”, and
(ii)
“the new authority” means the licensing authority by which (in
accordance with transfer arrangements under subsection (4))
the body is treated as authorised to carry on a protected activity.
35
(10)
In this section “licensing fee”, in relation to a licensing authority, means a fee
payable by a licensed body under the authority’s licensing rules made in
accordance with paragraph 21 of Schedule 11.
78
The Board’s power to recommend orders made under section 77
(1)
The Board may recommend to the Lord Chancellor that the Lord Chancellor
40
make an order under section 77 in the form of a draft order prepared by the
Board and annexed to the recommendation.
(2)
Before making a recommendation under this section, the Board must publish a
draft of—
(a)
the proposed recommendation, and
45
(b)
the proposed draft order.

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(3)
The draft must be accompanied by a notice which states that representations
about the proposals may be made to the Board within a specified period.
(4)
Before making the recommendation, the Board must have regard to any
representations duly made.
(5)
If the draft order to be annexed to the recommendation differs from the draft
5
published under subsection (2)(b) in a way which is, in the opinion of the
Board, material, the Board must, before making the recommendation, publish
the draft order along with a statement detailing the changes made and the
reasons for those changes.
79
Cancellation of designation: powers of entry etc
10
(1)
This section applies where an approved regulator (“the former authority”) has
its designation in relation to one or more reserved legal activities cancelled by
by virtue of section 75 or an order under section 76.
(2)
The Board may request the former authority to provide assistance to the new
authority and the Board, for the purpose of continuing regulation.
15
(3)
On an application by a person appointed by the Board to act on its behalf, a
judge of the High Court, Circuit judge or justice of the peace may issue a
warrant authorising that person to—
(a)
enter and search the premises of the former authority, and
(b)
take possession of any written or electronic records found on the
20
premises.
(4)
A person so authorised may, for the purpose of continuing regulation, take
copies of written or electronic records found on a search carried out by virtue
of the warrant.
(5)
The judge or justice of the peace may not issue the warrant unless satisfied that
25
its issue is necessary or desirable for the purpose of continuing regulation.
(6)
The Lord Chancellor must make regulations—
(a)
specifying further matters which a judge or justice of the peace must be
satisfied of, or matters which a judge or justice of the peace must have
regard to, before issuing a warrant, and
30
(b)
regulating the exercise of a power conferred by a warrant issued under
subsection (3) or by subsection (4) (whether by restricting the
circumstances in which a power may be exercised, by specifying
conditions to be complied with in the exercise of a power, or otherwise).
(7)
Regulations under subsection (6)(b) must in particular make provision as to
35
circumstances in which written or electronic records of which a person has
taken possession by virtue of a warrant issued under subsection (3) may be
copied or must be returned.
(8)
But the Lord Chancellor may not make regulations under subsection (6)
unless—
40
(a)
they are made in accordance with a recommendation made by the
Board, or
(b)
the Lord Chancellor has consulted the Board about the making of the
regulations.

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(9)
The Board must make rules as to the persons it may appoint for the purposes
of subsection (3).
(10)
For the purposes of this section—
“authorised by the former authority”, “protected activity” and “new
authority” have the same meaning as for the purposes of section 77;
5
“the purpose of continuing regulation” means the purpose of enabling
bodies authorised by the former authority to continue to be authorised
and regulated in relation to the protected activity.
Appeals
80
Functions of appellate bodies
10
(1)
The Lord Chancellor may by order—
(a)
establish a body to hear and determine appeals from decisions, made
by a person specified in the order in the person’s capacity as a licensing
authority, which are appealable under this Part or licensing rules made
by the person;
15
(b)
modify, or make any other provision relating to, the functions of a body
within subsection (2) or any other body, for the purpose of enabling the
body to hear and determine appeals from such decisions.
(2)
The bodies mentioned in subsection (1)(b) are—
(a)
the Solicitors Disciplinary Tribunal;
20
(b)
the Discipline and Appeals Committee established by the Council of
Licensed Conveyancers under section 25 of the Administration of
Justice Act 1985 (c. 61).
(3)
The Lord Chancellor may make an order under subsection (1) only if—
(a)
the Board has made a recommendation in accordance with section 81,
25
(b)
a draft order was annexed to the recommendation, and
(c)
the order is in the same form as, or not materially different from, that
draft order.
(4)
An order under this section may—
(a)
make provision as to the payment of fees, and award of costs, in
30
relation to such appeals;
(b)
modify provisions made by or under any enactment (including this Act
or any Act passed after this Act), prerogative instrument or other
instrument or document.
(5)
Any provision made by an order under this section may be expressed to be
35
conditional upon the person specified in the order being designated by an
order under Part 1 of Schedule 10 as a licensing authority in relation to one or
more reserved legal activities.
(6)
The powers to make an order conferred by this section are without prejudice
to any powers (statutory or non-statutory) which a body may have apart from
40
this section.
81
Procedural requirements relating to recommendations under section 80
(1)
A recommendation may be made under section 80 only with the consent of—

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(a)
the person from whose decisions the appeals are to be made, and
(b)
where the recommendation is for an order under section 80(1)(b), the
body to which appeals are to be made.
(2)
Before making a recommendation under that section, the Board must publish
a draft of—
5
(a)
the proposed recommendation, and
(b)
the proposed draft order.
(3)
The draft must be accompanied by a notice which states that representations
about the proposals may be made to the Board within a specified period.
(4)
Before making any recommendation, the Board must have regard to any
10
representations duly made.
(5)
If the draft order to be annexed to the recommendation differs from the draft
published under subsection (2)(b) in a way which is, in the opinion of the
Board, material, the Board must, before making the recommendation, publish
the draft order along with a statement detailing the changes made and the
15
reasons for those changes.
Policy statement
82
Licensing authority policy statement
(1)
Each licensing authority must prepare and issue a statement of policy as to
how, in exercising its functions under this Part, it will comply with the
20
requirements of section 28 (or, in the case of the Board, section 3) (duties to
promote regulatory objectives etc).
(2)
A licensing authority may issue a statement under subsection (1) only with the
approval of the Board (acting otherwise than in its capacity as a licensing
authority or as an approved regulator).
25
(3)
A licensing authority may, with the approval of the Board (acting otherwise
than in its capacity as a licensing authority or as an approved regulator), alter
or replace a statement issued under this section.
(4)
If it does so, it must issue the altered or replacement statement.
(5)
In exercising its functions under this Part, a licensing authority must have
30
regard to the statement issued by it under this section.
(6)
A licensing authority must publish a statement issued by it under this section.
Licensing rules
83
Licensing rules
(1)
The Board (acting in its capacity as a licensing authority)—
35
(a)
must make suitable licensing rules before the end of the period of 12
months beginning with the day on which a licensable body first
becomes entitled to make an application to it for a licence by virtue of a
decision of the Board (acting otherwise than in its capacity as a
licensing authority or as an approved regulator) under Schedule 12;
40

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(b)
may make or modify its licensing rules only with the approval of the
Board (acting otherwise than in its capacity as a licensing authority or
as an approved regulator).
(2)
In subsection (1)(a), “suitable licensing rules” means licensing rules which
constitute suitable regulatory arrangements (within the meaning of Schedule
5
12) in respect of licensable bodies entitled by virtue of a decision under that
Schedule to make an application to the Board for a licence.
(3)
Licensing rules made by an approved regulator have effect only at a time when
the approved regulator is a licensing authority (subject to any provision made
by an order under section 25).
10
(4)
Licensing rules of a licensing authority are rules as to—
(a)
the licensing by the authority of licensable bodies, and
(b)
the regulation by the licensing authority of licensable bodies licensed
by it, and their managers and employees.
(5)
Licensing rules of a licensing authority must contain—
15
(a)
appropriate qualification regulations in respect of licensable bodies to
which the licensing authority proposes to issue licences under this Part,
(b)
appropriate arrangements (including conduct rules, discipline rules
and practice rules) under which the licensing authority will be able to
regulate the conduct of bodies licensed by it, and their managers and
20
employees,
(c)
appropriate indemnification arrangements,
(d)
appropriate compensation arrangements,
(e)
appropriate provision requiring the licensing authority to consider the
likely impact of a proposed application on access to justice when
25
determining the application,
(f)
the provision required by sections 52 and 54 (resolution of regulatory
conflict) (including those provisions as applied by section 103),
(g)
the provision required by sections 112 and 146 (requirements imposed
in relation to the handling of complaints), and
30
(h)
any other provision required to be contained in licensing rules by this
Act.
(6)
Without prejudice to the generality of subsection (4), licensing rules of a
licensing authority may contain any provision authorised by this Act.
(7)
Schedule 11 makes further provision as to the contents of licensing rules.
35
(8)
Subsections (5) to (7) are subject to—
(a)
section 105 (which exempts trade unions from certain provisions), and
(b)
section 106 (which provides for the modification of licensing rules in
their application to bodies to which that section applies).
(9)
Licensing rules may not apply to bodies to which section 106 applies in a way
40
which is different from the way they apply to other bodies, except by virtue of
an order under that section.