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Legal Services Bill [HL]


Legal Services Bill [HL]
Part 9 — General

114

 

Orders, rules etc

204     

Orders, regulations and rules

(1)   

Any order or regulations made by the Lord Chancellor under this Act must be

made by statutory instrument.

(2)   

Any rules made by the Board under section 37(4), 95(3) or 173 must be made

5

by statutory instrument, and the Statutory Instruments Act 1946 (c. 36) applies

to the Board’s powers to make rules under those sections as if the Board were

a Minister of the Crown.

(3)   

An instrument to which this subsection applies may—

(a)   

provide for a person to exercise a discretion in dealing with any matter;

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(b)   

include incidental, supplementary and consequential provision;

(c)   

make transitory or transitional provision and savings;

(d)   

make provision generally or subject to exceptions or only in relation to

specified cases;

(e)   

make different provision for different cases or circumstances or for

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different purposes.

(4)   

Subsection (3) applies to—

(a)   

any order or regulations made by the Lord Chancellor,

(b)   

any rules or regulations made by the Board, and

(c)   

any rules made by the OLC,

20

   

under or by virtue of this Act.

205     

Consultation requirements for rules

(1)   

This section applies in relation to—

(a)   

rules made by the Board under this Act, and

(b)   

rules made by the OLC under Part 6,

25

   

other than excluded rules.

(2)   

If the Board or the OLC (“the rule-making body”) proposes to make any rules,

it must publish a draft of the proposed rules.

(3)   

The draft must be accompanied by a notice which states that representations

about the proposals may be made to the rule-making body within the period

30

specified in the notice.

(4)   

Before making the rules, the rule-making body must have regard to any

representations duly made.

(5)   

If the rules differ from the draft published under subsection (2) in a way which

is, in the opinion of the rule-making body, material, it must publish details of

35

the differences.

(6)   

The rule-making body must publish any rules it makes, and rules may not take

effect before the time they are published.

(7)   

Subsection (6) does not apply to rules made by the Board under section 37(4),

95(3) or 173.

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(8)   

The rule-making body may make a reasonable charge for providing a person

with a copy of—

 
 

Legal Services Bill [HL]
Part 9 — General

115

 

(a)   

a draft published under subsection (2), or

(b)   

rules published under subsection (6).

(9)   

In this section “excluded rules” means—

(a)   

rules of procedure made by the Board for the purposes of paragraph 21

of Schedule 1,

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(b)   

rules made by the Board in its capacity as an approved regulator or a

licensing authority, and

(c)   

rules of procedure made by the OLC for the purposes of paragraph 20

of Schedule 15;

   

and references to making rules include references to modifying the rules and,

10

in relation to any modifications of rules, references to the proposed rules are to

be read as references to the proposed modifications.

(10)   

This section is subject to section 156(3) (which disapplies this section to OLC

rules made in response to a Board direction under section 156(1)(b)).

206     

Parliamentary control of orders and regulations

15

(1)   

A statutory instrument containing an order or regulations made by the Lord

Chancellor under this Act is subject to annulment in pursuance of a resolution

of either House of Parliament.

(2)   

Subsection (1) is subject to subsections (3) and (4).

(3)   

Subsection (1) does not apply to an order if it contains only provision made

20

under one or more of the following—

(a)   

section 23(3)(b) (day appointed as end of transitional period relating to

non-commercial bodies);

(b)   

section 30(4) (appointed day before which first set of rules must be

made under section 30);

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(c)   

section 211 (commencement);

(d)   

paragraph 3(1)(b) of Schedule 5 (day appointed as end of transitional

period during which rights conferred by virtue of Part 2 of that

Schedule);

(e)   

paragraph 18(1)(b) of Schedule 18 (day appointed as end of transitional

30

period during which rights conferred by virtue of Part 3 of that

Schedule).

(4)   

Subsection (1) does not apply to an order or regulations which contains

(whether alone or together with other provision) provision made under any of

the following—

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(a)   

section 24(1) (orders adding to reserved legal activities);

(b)   

section 25(1) or (3) (provisional designation of approved regulators);

(c)   

section 42(6) (regulations relating to warrants under section 42);

(d)   

section 45(1) (cancellation of designation as approved regulator);

(e)   

section 46 (transitional arrangements following cancellation under

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section 45);

(f)   

section 48(6) (regulations relating to warrants under section 48);

(g)   

section 62(1) (power to designate Board as an approved regulator,

modify its functions or cancel its designation);

(h)   

section 69(1) (modification of functions of approved regulators etc);

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(i)   

section 76(1) (cancellation of designation as licensing authority);

 
 

Legal Services Bill [HL]
Part 9 — General

116

 

(j)   

section 77 (transitional arrangements following cancellation under

section 76);

(k)   

section 79(6) (regulations relating to warrants under section 79);

(l)   

section 80(1) (order establishing appellate body etc);

(m)   

section 106(1)(e) (power to prescribe bodies as bodies to which section

5

106 applies);

(n)   

section 109 (power to modify application of Part 5 to foreign bodies);

(o)   

section 173(5)(c) (power to prescribe persons as leviable bodies);

(p)   

section 207(5) (power to modify definition of “manager” in its

application to foreign bodies);

10

(q)   

section 208(3) (power to make consequential provision etc by amending

enactments);

(r)   

paragraph 9(1) of Schedule 3 (modification of exempt persons);

(s)   

paragraph 17 of Schedule 4 (designation of approved regulators);

(t)   

paragraph 9 of Schedule 13 (power to modify definitions of “material

15

interest” and “associates”);

(u)   

paragraph 2 of Schedule 22 (transitory power to modify functions of

designated regulators etc).

(5)   

An order or regulations within subsection (4) may not be made unless a draft

of the order or regulations has been laid before, and approved by a resolution

20

of, each House of Parliament.

(6)   

A statutory instrument containing rules made by the Board under section

37(4), 95(3) or 173 is subject to annulment in pursuance of a resolution of either

House of Parliament.

Interpretation

25

207     

Interpretation

(1)   

In this Act, except where the context otherwise requires—

“barrister” means an individual who—

(a)   

has been called to the Bar by an Inn of Court, and

(b)   

is not disbarred by order of an Inn of Court;

30

“consumers” means (subject to subsection (3)) persons—

(a)   

who use, have used or are or may be contemplating using,

services within subsection (2),

(b)   

who have rights or interests which are derived from, or are

otherwise attributable to, the use of such services by other

35

persons, or

(c)   

who have rights or interests which may be adversely affected by

the use of such services by persons acting on their behalf or in a

fiduciary capacity in relation to them;

“conveyancing services” has the same meaning as in Part 2 of the

40

Administration of Justice Act 1985 (c. 61) (licensed conveyancing) (see

section 11(3) of that Act);

“court” includes—

(a)   

a tribunal that is (to any extent) a listed tribunal for, or for any

of, the purposes of Schedule 7 to the Tribunals, Courts and

45

Enforcement Act 2007 (functions etc of Administrative Justice

and Tribunals Council);

 
 

Legal Services Bill [HL]
Part 9 — General

117

 

(b)   

a court-martial;

(c)   

a statutory inquiry within the meaning of section 16(1) of the

Tribunals and Inquiries Act 1992 (c. 53);

(d)   

an ecclesiastical court (including the Court of Faculties);

“functions” includes powers and duties;

5

“immigration advice” and “immigration services” have the meaning

given by section 82 of the Immigration and Asylum Act 1999 (c. 33)

(interpretation of Part 5) (see also subsection (4) below);

“independent trade union” has the same meaning as in the Trade Union

and Labour Relations (Consolidation) Act 1992 (c. 52) (see section 5 of

10

that Act);

“manager”, in relation to a body, means (subject to subsection (5)) a

person who—

(a)   

if the body is a body corporate whose affairs are managed by its

members, is a member of the body,

15

(b)   

if the body is a body corporate and paragraph (a) does not

apply, is a director of the body,

(c)   

if the body is a partnership, is a partner, and

(d)   

if the body is an unincorporated body (other than a

partnership), is a member of its governing body;

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“modify” includes amend, add to or revoke, and references to

“modifications” are to be construed accordingly;

“non-commercial legal services” means—

(a)   

legal services carried on otherwise than with a view to profit;

(b)   

legal services carried on by a not for profit body, a community

25

interest company or an independent trade union;

“not for profit body” means a body which, by or by virtue of its

constitution or any enactment—

(a)   

is required (after payment of outgoings) to apply the whole of

its income, and any capital which it expends, for charitable or

30

public purposes, and

(b)   

is prohibited from directly or indirectly distributing amongst its

members any part of its assets (otherwise than for charitable or

public purposes);

“the OFT” means the Office of Fair Trading;

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“person” includes a body of persons (corporate or unincorporate);

“reserved legal services” means services provided by a person which

consist of or include reserved legal activities carried on by, or on behalf

of, that person;

“solicitor” means solicitor of the Senior Courts.

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(2)   

The services within this subsection are—

(a)   

any services provided by a person who is an authorised person in

relation to an activity which is a reserved legal activity, and

(b)   

any other services provided by a person which consist of or include a

legal activity carried on by, or on behalf of, that person.

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(3)   

For the purposes of the definition of “consumers” in subsection (1)—

(a)   

if a person (“A”) is carrying on an activity in A’s capacity as a trustee,

the persons who are, have been or may be beneficiaries of the trust are

to be treated as persons who use, have used or are or may be

 
 

Legal Services Bill [HL]
Part 9 — General

118

 

contemplating using services provided by A in A’s carrying on of that

activity, and

(b)   

a person who deals with another person (“B”) in the course of B’s

carrying on of an activity is to be treated as using services provided by

B in carrying on that activity.

5

(4)   

The references in this Act (other than section 195) to the provision of

immigration advice or immigration services are to the provision of such advice

or services by a person—

(a)   

in England and Wales (regardless of whether the persons to whom they

are provided are in England and Wales or elsewhere), and

10

(b)   

in the course of a business carried on (whether or not for profit) by the

person or another person.

(5)   

The Lord Chancellor may by order make provision modifying the definition of

“manager” in its application to a body of persons formed under, or in so far as

the body is recognised by, law having effect outside England and Wales.

15

(6)   

In this section “enactment” means a provision of—

(a)   

an Act of Parliament;

(b)   

an Act of the Scottish Parliament;

(c)   

a Measure or Act of the National Assembly for Wales;

(d)   

Northern Ireland legislation.

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Miscellaneous and supplementary

208     

Minor and consequential provision etc

(1)   

Schedule 21 contains minor and consequential amendments.

(2)   

The Lord Chancellor may by order make any supplementary, incidental or

consequential provision and any transitory, transitional or saving provision

25

which the Lord Chancellor considers necessary or expedient—

(a)   

for the general purposes, or any particular purpose, of this Act, or

(b)   

in consequence of any provision made by or under it or for giving full

effect to it.

(3)   

An order under this section may make provision amending, repealing or

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revoking (with or without savings) any provision of—

(a)   

an Act passed before or in the same session as this Act, or

(b)   

an instrument made under an Act before the passing of this Act.

(4)   

An order under this section may make such adaptations of provisions of this

Act brought into force as appear to be necessary or expedient in consequence

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of other provisions of this Act not yet having come into force.

(5)   

Provision made under this section is additional, and without prejudice, to that

made by or under any other provision of this Act.

209     

Transitional and transitory provision

Schedule 22 contains transitional and transitory provision.

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