Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Part 6 — Legal Complaints
81

“restricted information” means information (other than excluded
information) which is obtained by a restricted person in the course of,
or for the purposes of, an investigation into a complaint made under
the ombudsman scheme (including information obtained for the
purposes of deciding whether to begin such an investigation or in
5
connection with the settlement of a complaint);
“restricted person” means—
(a)
the OLC,
(b)
an ombudsman, or
(c)
a person who exercises functions delegated under paragraph 19
10
of Schedule 15.
(3)
For the purposes of subsection (2) “excluded information” means—
(a)
information which is in the form of a summary or collection of
information so framed as not to enable information relating to any
particular person to be ascertained from it;
15
(b)
information which at the time of the disclosure is or has already been
made available to the public from other sources;
(c)
information which was obtained more than 70 years before the date of
the disclosure.
153
Disclosure of restricted information
20
(1)
A restricted person may disclose restricted information to another restricted
person.
(2)
Restricted information may be disclosed for the purposes of the investigation
in the course of which, or for the purposes of which, it was obtained.
(3)
Section 152 also does not preclude the disclosure of restricted information—
25
(a)
in a report made under—
(i)
section 144(2) (report of possible misconduct to approved
regulators),
(ii)
section 147(2) (report of failure to co-operate with
investigation),
30
(iii)
section 149 (reporting failures to provide information or
produce documents), or
(iv)
section 151 (reports of investigations),
(b)
for the purposes of enabling or assisting the Board to exercise any of its
functions,
35
(c)
to an approved regulator for the purposes of enabling or assisting the
approved regulator to exercise any of its regulatory functions,
(d)
with the consent of the person to whom it relates and (if different) the
person from whom the restricted person obtained it,
(e)
for the purposes of an inquiry with a view to the taking of any criminal
40
proceedings or for the purposes of any such proceedings,
(f)
where the disclosure is required by or by virtue of any provision made
by or under this Act or any other enactment or other rule of law,
(g)
to such persons (other than approved regulators) who exercise
regulatory functions as may be prescribed by order made by the Lord
45
Chancellor, for such purposes as may be so prescribed.
(4)
Subsections (2) and (3) are subject to subsection (5).

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Part 6 — Legal Complaints
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(5)
The Lord Chancellor may by order prevent the disclosure of restricted
information by virtue of subsection (2) or (3) in such circumstances, or for such
purposes, as may be prescribed in the order.
154
Data protection
In section 31 of the Data Protection Act 1998 (c. 29) (regulatory activity), after
5
subsection (4B) (inserted by section 171) insert—
“(4C)
Personal data processed for the purposes of the function of considering
a complaint under the scheme established under Part 6 of the Legal
Services Act 2007 (legal complaints) are exempt from the subject
information provisions in any case to the extent to which the
10
application of those provisions to the data would be likely to prejudice
the proper discharge of the function.”
Defamation
155
Protection from defamation claims
For the purposes of the law of defamation—
15
(a)
proceedings in relation to a complaint under the ombudsman scheme
are to be treated as if they were proceedings before a court, and
(b)
the publication of any matter by the OLC under this Part is absolutely
privileged.
Scheme rules
20
156
Consent requirements for rules
(1)
Before making scheme rules under any provision of this Part, the OLC must
obtain—
(a)
the consent of the Board, and
(b)
in the case of rules under section 136 (charges payable by respondents),
25
the consent of the Lord Chancellor.
(2)
In subsection (1) the reference to making rules includes a reference to
modifying rules.
157
The Board’s powers in respect of rules
(1)
The Board may direct the OLC to take such steps as are necessary—
30
(a)
to modify its scheme rules in accordance with such general
requirements as are specified in the direction, or
(b)
to make a specified modification to its scheme rules.
(2)
Before giving a direction under subsection (1)(b), the Board must—
(a)
give the OLC a notice giving details of the proposed modification and
35
containing a statement that representations about the proposal may be
made to the Board within a period specified in the notice,
(b)
publish a copy of that notice, and
(c)
have regard to any representations duly made.

Legal Services Bill [HL]
Part 6 — Legal Complaints
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(3)
The following provisions do not apply in relation to any modification made by
the OLC to its rules in compliance with a direction under subsection (1)(b)—
(a)
section 156(1)(a) (requirement to obtain the Board’s consent to rules);
(b)
section 206 (requirement to consult before making rules).
(4)
Where the Board revokes a direction, it must—
5
(a)
give the OLC notice of the revocation, and
(b)
publish that notice.
Effect on existing arrangements for redress etc
158
Approved regulators not to make provision for redress
(1)
The regulatory arrangements of an approved regulator must not include any
10
provision relating to redress, unless in relation to a complaint which is
determined by an approved regulator pursuant to a direction made under
section 143.
(2)
If at the time this subsection comes into force the regulatory arrangements of
an approved regulator contravene subsection (1), any provision relating to
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redress included in those regulatory arrangements ceases to have effect at that
time, subject to subsection (3) and except as permitted by subsection (1).
(3)
An order under section 212 which appoints a day for the coming into force of
subsection (2) may include transitional provision in respect of any proceedings
which, immediately before that day are awaiting determination under any
20
provision relating to redress made by an approved regulator.

This subsection is without prejudice to any other transitional provision which
may be made by or under this Act.
(4)
For the purposes of this section “provision relating to redress” means any
provision (whether it is statutory or non-statutory) for redress in respect of acts
25
or omissions of authorised persons and any provision connected with such
provision.
(5)
Nothing in this section prevents an approved regulator making—
(a)
provision in its regulatory arrangements of the kind required by section
112 (requirement for authorised persons to have complaints
30
procedures),
(b)
indemnification arrangements or compensation arrangements, or
(c)
provision which by virtue of section 159 is not prohibited by this
section.
(6)
In subsection (4) “authorised person” means an authorised person in relation
35
to any activity which is a reserved legal activity.
(7)
This section applies to licensing rules made by the Board in its capacity as a
licensing authority as it applies in relation to the regulatory arrangements of an
approved regulator.
159
Regulatory arrangements not prohibited by section 158
40
(1)
Section 158 does not prohibit the regulatory arrangements of an approved
regulator from making provision requiring, or authorising the approved
regulator to require, a relevant authorised person—

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Part 6 — Legal Complaints
84

(a)
to investigate whether there are any persons who may have a claim
against the relevant authorised person in relation to a matter specified
by the approved regulator;
(b)
to provide the approved regulator with a report on the outcome of the
investigation;
5
(c)
to identify persons (“affected persons”) who may have such a claim;
(d)
to notify affected persons that they may have such a claim;
(e)
to provide affected persons with information about the relevant
authorised person’s complaints procedures and the ombudsman
scheme;
10
(f)
to ensure that the relevant authorised person’s complaints procedures
operate as if an affected person had made a complaint against the
relevant authorised person in respect of the act or omission to which the
claim relates.
(2)
For the purposes of subsection (1) “claim”, in relation to a relevant authorised
15
person, means a claim for redress resulting from an act or omission of that
person.
(3)
For the purposes of this section—
(a)
“relevant authorised person”, in relation to an approved regulator,
means a person authorised by that approved regulator to carry on an
20
activity which is a reserved legal activity, and
(b)
a relevant authorised person’s complaints procedures are the
procedures established by that person, or which that person
participates in or is subject to, in accordance with regulatory
arrangements made in accordance with section 112.
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(4)
This section applies in relation to the Board in its capacity as a licensing
authority as it applies in relation to an approved regulator, and in relation to
the Board references to regulatory arrangements are to be read as references to
the Board’s licensing rules.
160
Legal Services Complaints Commissioner and Legal Services Ombudsman
30
(1)
The offices of Legal Services Complaints Commissioner and Legal Services
Ombudsman are abolished.
(2)
Accordingly—
(a)
sections 51 and 52 of, and Schedule 8 to, the Access to Justice Act 1999
(c. 22), and
35
(b)
sections 21 to 26 of, and Schedule 3 to, the Courts and Legal Services
Act 1990 (c. 41),

are repealed.
Interpretation
161
Interpretation of Part 6
40
In this Part—
“complainant”, in relation to a complaint, means the person who makes
the complaint;
“relevant authorising body”, in relation to a person, means—

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Part 6 — Legal Complaints
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(a)
an approved regulator by which the person is authorised to
carry on an activity which is a reserved legal activity, or
(b)
where the person is authorised to carry on such an activity by
the Board in its capacity as a licensing authority, the Board;
“respondent”, in relation to a complaint, is to be construed in accordance
5
with section 125 (except that, where scheme rules of the kind
mentioned in section 133(3)(c) have effect, references to the
“respondent” include a person treated as a co-respondent under those
rules).
Claims management services
10
162
Extension of Part 6 to claims management services
(1)
For the purposes of this Part (and sections 1, 21 and 27 as they apply in relation
to this Part)—
(a)
the Claims Management Services Regulator is to be treated as an
approved regulator;
15
(b)
regulated claims management services are to be treated as a reserved
legal activity;
(c)
a person authorised by the Claims Management Services Regulator,
under Part 2 of the Compensation Act 2006 (c. 29), to provide regulated
claims management services is to be treated as an authorised person in
20
relation to that activity;
(d)
the Claims Management Services Regulator is to be treated as a relevant
authorising body in relation to such a person; and
(e)
regulations under section 9 of, and the Schedule to, the Compensation
Act 2006 (regulations about the functions of the Claims Management
25
Services Regulator etc) are to be treated as regulatory arrangements of
the Claims Management Services Regulator.
(2)
For the purposes of sections 112 and 146 (as extended by this section) a person
authorised by the Claims Management Services Regulator under Part 2 of the
Compensation Act 2006 to provide regulated claims management services is to
30
be treated as a “relevant authorised person” in relation to the Regulator.
(3)
Section 9 of, and the Schedule to, the Compensation Act 2006 (regulations
about the functions of the Claims Management Regulator etc) are subject to any
requirements imposed by this Part in relation to the regulatory arrangements
of the Claims Management Regulator.
35
(4)
In this section—
“Claims Management Services Regulator” means—
(a)
the person designated under section 5(1) of the Compensation
Act 2006, or
(b)
at a time when no person is so designated, the Board;
40
“regulated claims management services” has the same meaning as in Part
2 of the Compensation Act 2006.

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Part 7 — Further provisions relating to the Board and the OLC
86

Part 7
Further provisions relating to the Board and the OLC
Guidance
163
Guidance
(1)
The Board may give guidance—
5
(a)
about the operation of this Act and of any order made under it;
(b)
about the operation of any rules made by the Board under this Act;
(c)
about any matter relating to the Board’s functions;
(d)
for the purpose of meeting the regulatory objectives;
(e)
about the content of licensing rules;
10
(f)
about any other matters about which it appears to the Board to be
desirable to give guidance.
(2)
Guidance under this section may consist of such information and advice as the
Board considers appropriate.
(3)
The Board may give financial or other assistance to persons giving information
15
or advice of a kind which the Board could give under this section.
(4)
The Board may—
(a)
publish its guidance,
(b)
offer copies of its published guidance for sale at a reasonable price, and
(c)
if it gives guidance in response to a request made by any person, make
20
a reasonable charge for that guidance.
(5)
When exercising its functions, the Board may have regard to the extent to
which an approved regulator has complied with any guidance issued under
this section which is applicable to the approved regulator.
(6)
When exercising its functions—
25
(a)
in its capacity as an approved regulator by virtue of an order under
section 62(1)(a), or
(b)
in its capacity as a licensing authority under Part 5,

the Board must have regard to any guidance it has issued under this section.
Voluntary arrangements
30
164
Voluntary arrangements
(1)
The Board may enter into arrangements with any person under which the
Board is to provide assistance for the purpose of improving standards of
service and promoting best practice in connection with the carrying on of any
legal activity.
35
(2)
These arrangements may (among other things) provide for the Board to give
advice on—
(a)
the best regulatory practice, or
(b)
the contents of codes of practice or other voluntary arrangements.

Legal Services Bill [HL]
Part 7 — Further provisions relating to the Board and the OLC
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(3)
Arrangements under this section may include provision as to the terms on
which assistance is to be provided by the Board (including provision as to
payment).
(4)
Where the Board enters into arrangements under this section, it must publish
a statement giving details of the arrangements and explaining what they are
5
intended to achieve.
165
Power to establish voluntary scheme for resolving complaints
(1)
This section and section 167 provide for a scheme under which legal services
complaints may be resolved quickly and with minimum formality by an
independent person.
10
(2)
The OLC may make rules (“voluntary scheme rules”) establishing such a
scheme (“the voluntary scheme”), but only in relation to such kinds of legal
services complaints as may be specified by order made by the Lord Chancellor
for the purposes of this section.
(3)
An order under subsection (2) may in particular specify a kind of legal services
15
complaint by reference to the description of the complainant, of the
respondent, or of the legal services to which the complaint relates.
(4)
“Legal services complaint” means a complaint which relates to an act or
omission of an eligible person (“the respondent”) in the course of that person
providing legal services.
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(5)
For that purpose a person is eligible if at the time the act or omission took place
there was no activity in relation to which the person—
(a)
was an authorised person, or
(b)
is to be regarded as having been such a person by virtue of section 129.
(6)
Under the voluntary scheme—
25
(a)
redress may be provided to the complainant, but
(b)
no disciplinary action may be taken against the respondent.
(7)
Voluntary scheme rules may confer functions on ombudsmen for the purposes
of the voluntary scheme.
(8)
Section 131 applies for the purposes of the voluntary scheme as it applies for
30
the purposes of the ombudsman scheme.
(9)
Sections 156 and 157 apply in relation to voluntary scheme rules as they apply
in relation to scheme rules.
(10)
In this section—
“legal services” means services provided by a person which consist of or
35
include legal activities carried on by, or on behalf of, that person;
“the voluntary scheme” and “voluntary scheme rules” have the meaning
given by subsection (2).
166
Procedure for making orders under section 165
(1)
The Lord Chancellor may make an order under section 165(2) only on the
40
recommendation of an interested body.