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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 3 — Alteration of approved regulator’s regulatory arrangements

140

 

           

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

recommendation was made.

      (4)  

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

reasons for the decision.

5

      (5)  

The Lord Chancellor must publish the decision notice.

Approval of regulatory arrangements

18    (1)  

Where an order is made by the Lord Chancellor under paragraph 17, the

applicant’s proposed regulatory arrangements are at the same time treated

as having been approved by the Board.

10

      (2)  

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

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

the reference to the applicant’s proposed regulatory arrangements were a

reference to those arrangements excluding any provision made in respect of

any activities excluded from the order.

15

      (3)  

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

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

steps in certain circumstances, including steps to amend its regulatory

arrangements).

Part 3

20

Alteration of approved regulator’s regulatory arrangements

Requirement for approval

19    (1)  

If an alteration is made of the regulatory arrangements of an approved

regulator, the alteration does not have effect unless it is approved for the

purposes of this Act.

25

      (2)  

An alteration is approved for the purposes of this Act if—

(a)   

it is approved by virtue of paragraph 18 (approval of proposed

regulatory arrangements on designation by order as approved

regulator),

(b)   

it is approved by the Board under this Part of this Schedule,

30

(c)   

it is an exempt alteration,

(d)   

it is an alteration made in compliance with a direction under section

32,

(e)   

it is approved by virtue of paragraph 16 of Schedule 10 (approval of

licensing rules on designation by order as licensing authority), or

35

(f)   

it is approved by virtue of paragraph 7 of Schedule 18 (approval of

proposed regulatory arrangements when granting “qualifying

regulator” status for the purposes of Part 5 of the Immigration and

Asylum Act 1999 (c. 33)).

      (3)  

An exempt alteration is an alteration which the Board has directed is to be

40

treated as exempt for the purposes of this paragraph.

      (4)  

A direction under sub-paragraph (3) may be specific or general and must be

published by the Board.

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 3 — Alteration of approved regulator’s regulatory arrangements

141

 

      (5)  

In this Part of this Schedule, references to an “alteration” of regulatory

arrangements include an addition to, or the revocation of any part of, the

arrangements.

      (6)  

If a question arises whether approval is required by virtue of this Part of this

Schedule, it is for the Board to decide.

5

      (7)  

Nothing in this Part of this Schedule applies in relation to any alteration of

the regulatory arrangements of the Board in its capacity as an approved

regulator (or of its licensing rules).

Application to Board

20    (1)  

An application by an approved regulator for the Board to approve an

10

alteration or alterations of its regulatory arrangements must be made in such

form and manner as the Board may specify in rules.

      (2)  

The application must be accompanied by—

(a)   

details of such of the approved regulator’s regulatory arrangements

as are relevant to the application,

15

(b)   

details of the alteration or alterations, and

(c)   

such explanatory material as the approved regulator considers is

likely to be needed for the purposes of this Part of this Schedule.

Initial determination

21    (1)  

Where the Board has received an application under paragraph 20 it may—

20

(a)   

grant the application and give the approved regulator a notice to that

effect, or

(b)   

give the approved regulator a notice stating that the Board is

considering whether to refuse the application (a “warning notice”).

      (2)  

The Board must publish any notice given by it under sub-paragraph (1)(a) or

25

(b).

      (3)  

If the Board does not give the approved regulator a notice under sub-

paragraph (1)(a) or (b) within the initial decision period, the application is

deemed to have been granted by the Board.

      (4)  

The “initial decision period” means the period of 28 days beginning with the

30

day on which the application was received by the Board.

      (5)  

The Board may extend the initial decision period—

(a)   

with the consent of the approved regulator, or

(b)   

by giving an extension notice to the approved regulator,

           

before the end of that period (or if it has previously been extended under this

35

sub-paragraph, that period as so extended).

      (6)  

An extension notice—

(a)   

must specify the period of the extension, and

(b)   

must state the Board’s reasons for extending the initial decision

period.

40

      (7)  

The period specified in the notice under sub-paragraph (6)(a) must end no

later than the end of the period of 90 days beginning with the date on which

the application was made under paragraph 20.

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 3 — Alteration of approved regulator’s regulatory arrangements

142

 

Advice

22    (1)  

Where the Board has given the approved regulator a warning notice, the

Board may invite such persons as it considers appropriate to give the Board

advice regarding whether the application should be granted.

      (2)  

A person (“the consultee”) to whom an invitation is given under sub-

5

paragraph (1) may, for the purposes of giving advice to the Board under this

paragraph, request the approved regulator or any other person to provide

the consultee with such additional information as may be specified by the

consultee.

Representations by applicant

10

23    (1)  

The Board must give the approved regulator a copy of any advice obtained

under paragraph 22.

      (2)  

The approved regulator may make to the Board—

(a)   

written representations, and

(b)   

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

15

           

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—

(a)   

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

20

the advice is given to the approved regulator, 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.

      (6)  

Before preparing that report, the Board must—

25

(a)   

give the approved regulator 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

24    (1)  

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

30

which representations under paragraph 23 may be made, publish—

(a)   

any advice given under paragraph 22, and

(b)   

any written representations duly made under paragraph 23 and the

report (if any) prepared under that paragraph.

      (2)  

Nothing in sub-paragraph (1) operates—

35

(a)   

to prevent a person who gives advice under paragraph 22 from

publishing that advice, or

(b)   

to prevent a person who makes representations under paragraph 23

from publishing those representations.

      (3)  

A person (“the publisher”) publishing any such material (whether under

40

sub-paragraph (1) or otherwise) must, so far as practicable, exclude any

matter which relates to the private affairs of a particular individual the

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 3 — Alteration of approved regulator’s regulatory arrangements

143

 

publication of which, in the opinion of the publisher, would or might

seriously and prejudicially affect the interests of that individual.

Decision by the Board

25    (1)  

After considering—

(a)   

the application and any accompanying material,

5

(b)   

any other information provided by the approved regulator,

(c)   

any advice obtained under paragraph 22,

(d)   

any representations duly made under paragraph 23, and

(e)   

any other information which the Board considers relevant to the

application,

10

           

the Board must decide whether to grant the application.

      (2)  

The Board may grant the application in whole or in part.

      (3)  

The Board may refuse the application only if it is satisfied that—

(a)   

granting the application would be prejudicial to the regulatory

objectives,

15

(b)   

granting the application would be contrary to any provision made by

or by virtue of this Act or any other enactment or would result in any

of the designation requirements ceasing to be satisfied in relation to

the approved regulator,

(c)   

granting the application would be contrary to the public interest,

20

(d)   

the alteration would enable the approved regulator to authorise

persons to carry on activities which are reserved legal activities in

relation to which it is not a relevant approved regulator,

(e)   

the alteration would enable the approved regulator to license

persons under Part 5 to carry on activities which are reserved legal

25

activities in relation to which it is not a licensing authority, or

(f)   

the alteration has been or is likely to be made otherwise than in

accordance with the procedures (whether statutory or otherwise)

which apply in relation to the making of the alteration.

      (4)  

For the purposes of sub-paragraph (3)(b) the designation requirements are—

30

(a)   

a requirement that the approved regulator has appropriate internal

governance arrangements in place,

(b)   

a requirement that the applicant is competent, and has sufficient

resources to perform the role of approved regulator in relation to the

reserved legal activities in respect of which it is designated, and

35

(c)   

the requirements of paragraph 13(2)(c) to (e).

      (5)  

Sub-paragraph (3) applies in relation to any part of an application as if

references to the application were to the part.

      (6)  

The Board must give notice of its decision (“the decision notice”) to the

approved regulator.

40

      (7)  

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

decision notice must specify the reasons for that decision.

      (8)  

The Board must publish the decision notice.

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 1 — Continuity of rights

144

 

Failure to decide application during decision period

26    (1)  

This paragraph applies where the Board gives an approved regulator a

warning notice under paragraph 21 in respect of the approved regulator’s

application.

      (2)  

If the Board does not give the approved regulator notice of its decision under

5

paragraph 25 within the decision period, the application is deemed to have

been granted by the Board at the end of that period.

      (3)  

Subject to sub-paragraphs (4) and (5), “the decision period” means the

period of 12 months beginning with the day on which the approved

regulator received the warning notice.

10

      (4)  

The Board may, on one or more occasions, give the approved regulator a

notice (an “extension notice”) extending the decision period.

      (5)  

But—

(a)   

an extension notice may only be given before the time when the

decision period would end, but for the extension notice, and

15

(b)   

the total decision period must not exceed 18 months.

      (6)  

The Board must publish any extension notice given by it.

Effect of grant of application

27    (1)  

Where an application is granted under paragraph 21(1)(a) or (3), 25(1) or

26(2), the alteration or alterations of the regulatory arrangements to which

20

the application relates are approved.

      (2)  

Where a part of an application is granted under paragraph 25(1), the

alteration or alterations of the regulatory arrangements to which the part

relates are approved.

      (3)  

Sub-paragraphs (1) and (2) are without prejudice to the Board’s power to

25

give directions under section 32 (power to direct an approved regulator to

take steps in certain circumstances, including steps to amend its regulatory

arrangements).

Schedule 5

Section 22

 

Authorised persons

30

Part 1

Continuity of rights

Rights of audience and conduct of litigation

1     (1)  

For the purposes of section 18 (authorised persons), in the case of a person

who is authorised by a listed body—

35

(a)   

to exercise a right of audience before a court in relation to any

proceedings, or

(b)   

to conduct litigation in relation to any proceedings,

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

145

 

           

it is irrelevant whether the person’s authorisation was granted before or on

or after the appointed day.

      (2)  

The “listed bodies” are—

(a)   

The Law Society,

(b)   

The General Council of the Bar,

5

(c)   

The Chartered Institute of Patent Attorneys,

(d)   

The Institute of Trade Mark Attorneys,

(e)   

The Association of Law Costs Draftsmen, and

(f)   

for the purposes of sub-paragraph (1)(a) only, The Institute of Legal

Executives.

10

      (3)  

For the purposes of sub-paragraph (1), any authority conferred by section 31

of the Courts and Legal Services Act 1990 (c. 41) (barristers and solicitors

deemed to have rights of audience and rights to conduct litigation) is to be

disregarded (see paragraphs 4 and 7 below).

Conveyancing services

15

2     (1)  

For the purposes of section 18, in the case of a licensed conveyancer who is

authorised to carry on an activity which is a reserved instrument activity by

a conveyancing licence, it is irrelevant whether the licence was granted

before or on or after the appointed day.

      (2)  

For the purposes of this paragraph “conveyancing licence” means a licence

20

to practise as a licensed conveyancer granted under Part 2 of the

Administration of Justice Act 1985 (c. 61).

Part 2

Rights during transitional period

The transitional period

25

3     (1)  

In this Part of this Schedule references to “the transitional period” are to the

period which—

(a)   

begins with the appointed day (within the meaning given by

paragraph 19), and

(b)   

ends with the day appointed by the Lord Chancellor by order for the

30

purposes of this paragraph.

      (2)  

Different days may be appointed under sub-paragraph (1)(b) for different

purposes.

      (3)  

An order may be made under sub-paragraph (1)(b) only on the

recommendation of the Board.

35

Barristers etc

4     (1)  

During the transitional period, every barrister is deemed to be authorised by

the General Council of the Bar to carry on the activities in sub-paragraph (2).

      (2)  

Those activities are—

(a)   

the exercise of a right of audience before every court in relation to all

40

proceedings;

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

146

 

(b)   

reserved instrument activities;

(c)   

probate activities;

(d)   

the administration of oaths.

      (3)  

The authority conferred on a barrister by this paragraph is exercisable in

accordance with, and subject to, the regulatory arrangements of the General

5

Council of the Bar.

      (4)  

A person is not authorised under sub-paragraph (1) unless the person has in

force a certificate issued by the General Council of the Bar authorising the

person to practise as a barrister.

5     (1)  

During the transitional period, every registered European lawyer registered

10

with the Inns of Court and the General Council of the Bar is deemed to be

authorised by the General Council of the Bar to carry on activities which—

(a)   

are within paragraph 4(2), and

(b)   

the registered European lawyer is entitled to carry on under his

home professional title by virtue of the European regulations.

15

      (2)  

The authority conferred on a registered European lawyer by virtue of this

paragraph is exercisable in accordance with, and subject to, the regulatory

arrangements of the General Council of the Bar (as they apply to the

registered European lawyer by virtue of the European regulations).

      (3)  

In this paragraph—

20

“European regulations” means the European Communities (Lawyer’s

Practice) Regulations 2000 (S.I. 2000/1119);

“home professional title” and “registered European lawyer” have the

same meaning as in the European regulations.

6          

During the transitional period members of the Bar not in actual practice are

25

to continue to have the rights conferred by section 102A(2) of the Patents Act

1977 (c. 37) (right of audience, etc in proceedings on appeal from the

comptroller).

Solicitors etc

7     (1)  

During the transitional period—

30

(a)   

every qualified solicitor,

(b)   

every legal partnership, and

(c)   

every body recognised under section 9 of the Administration of

Justice Act 1985 (c. 61) (incorporated practices) (“a recognised

body”),

35

           

is deemed to be authorised by the Law Society to carry on the activities in

sub-paragraph (2).

      (2)  

Those activities are—

(a)   

the exercise of a right of audience before every court in relation to all

proceedings;

40

(b)   

the conduct of litigation in relation to every court and all

proceedings;

(c)   

reserved instrument activities;

(d)   

probate activities;

(e)   

the administration of oaths.

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