Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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Legal Services Bill [HL]

Legal Services Bill [HL]
Schedule 6 — Alteration of reserved legal activities
152

Schedule 6
Sections 24 and 26

Alteration of reserved legal activities
Introductory
1
In this Schedule, in relation to an activity—
“section 24 investigation” means an investigation held with a view to
5
determining whether or not the Board should make a
recommendation in respect of the activity for the purposes of section
24 (recommendations and orders to extend the reserved legal
activities);
“section 26 investigation” means an investigation held with a view to
10
determining whether or not the Board should make a
recommendation in respect of the activity for the purposes of section
26 (recommendations that an activity should cease to be a reserved
legal activity).
Requests for Board to hold a full investigation
15
2     (1)
A person may—
(a)
request the Board to hold a section 24 investigation in respect of an
activity, or
(b)
request the Board to hold a section 26 investigation in respect of an
activity.
20
      (2)
A request under sub-paragraph (1) must be in writing and specify the
activity to which it relates.
      (3)
In the case of a request for a section 24 investigation, the activity in respect
of which the request is made must be a legal activity.
Board’s duty to hold preliminary inquiries in certain cases
25
3     (1)
This paragraph applies where the Board receives a request under paragraph
2, in respect of an activity, from—
(a)
the Lord Chancellor,
(b)
the OFT,
(c)
the Consumer Panel, or
30
(d)
the Lord Chief Justice.
      (2)
The Board must—
(a)
carry out such inquiries as it considers appropriate to enable it to
determine whether it is appropriate to hold a section 24 investigation
or, as the case may be, a section 26 investigation in respect of the
35
activity, and
(b)
make that determination within the preliminary inquiry period.
      (3)
“The preliminary inquiry period” means the period of 3 months beginning
with the day on which the request under paragraph 2 was received by the
Board.
40
      (4)
The Board may, before the end of the preliminary inquiry period in relation
to a request, issue a notice extending that period by a period specified in the
notice.

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Schedule 6 — Alteration of reserved legal activities
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      (5)
More than one notice may be issued under sub-paragraph (4), but the total
preliminary inquiry period must not exceed 4 months.
      (6)
A notice under sub-paragraph (4) must state the Board’s reasons for
extending the preliminary inquiry period.
      (7)
The Board must publish a notice issued under sub-paragraph (4).
5
Board’s power to hold preliminary inquiries in other cases
4     (1)
The Board may—
(a)
where it receives a request under paragraph 2 to which paragraph 3
does not apply, or
(b)
in any other case where it considers it appropriate to do so,
10

carry out such inquiries as it considers appropriate to enable it to determine
whether it is appropriate to hold a section 24 investigation or a section 26
investigation in respect of an activity.
      (2)
In the case of a section 24 investigation, that activity must be a legal activity.
Advice
15
5     (1)
Before determining whether it is appropriate to hold a section 24
investigation or a section 26 investigation in respect of an activity, the Board
may seek the advice of one or both of the following bodies—
(a)
the OFT;
(b)
the Consumer Panel.
20
      (2)
The OFT or the Consumer Panel must, if its advice is sought, give the Board
such advice as it thinks fit, within such reasonable period as the Board may
specify.
      (3)
In deciding what advice to give—
(a)
the OFT must, in particular, consider whether making an order
25
under section 24 or (as the case may be) provision in accordance with
a recommendation under section 26, in respect of the activity would
(or would be likely to) prevent, restrict or distort competition within
the market for reserved legal services to any significant extent, and
(b)
the Consumer Panel must have regard to the likely impact which
30
making that order or (as the case may be) provision would have on
consumers.
      (4)
The OFT or the Consumer Panel may, for the purposes of giving advice
under this paragraph, request any person to provide it with such
information as may be specified by it.
35
6     (1)
Before determining whether it is appropriate to hold a section 24
investigation or a section 26 investigation in respect of an activity the Board
may also seek the advice of the Lord Chief Justice.
      (2)
If the Board has sought advice under paragraph 5, the Board may not seek
advice from the Lord Chief Justice until—
40
(a)
the period for giving advice under paragraph 5 has ended, and
(b)
it has given the Lord Chief Justice a copy of any advice duly given
under that paragraph.
      (3)
If advice is sought under sub-paragraph (1), the Lord Chief Justice—

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Schedule 6 — Alteration of reserved legal activities
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(a)
must give the Board such advice as the Lord Chief Justice thinks fit,
within such reasonable period as may be specified by the Board, and
(b)
may, for the purposes of giving that advice, request any person to
provide the Lord Chief Justice with such information as may be
specified by the Lord Chief Justice.
5
      (4)
In deciding what advice to give, the Lord Chief Justice must, in particular,
have regard to the likely impact on the courts in England and Wales of the
making of an order under section 24 or (as the case may be) provision in
accordance with a recommendation under section 26, in respect of the
activity in question.
10
7     (1)
The Board must consider, and publish, any advice given under paragraph 5
or 6.
      (2)
Nothing in this paragraph operates to prevent a person who gives such
advice from publishing it.
Restrictions on refusing a paragraph 2 request
15
8     (1)
This paragraph applies where—
(a)
a request has been made under paragraph 2, and
(b)
paragraph 3 applies to that request.
      (2)
The Board may refuse the request only if—
(a)
the consultation requirements are satisfied, and
20
(b)
either the consent requirement is satisfied or the request was made
by the Lord Chancellor.
      (3)
The consultation requirements are—
(a)
that the Board has consulted the OFT, the Consumer Panel and the
Lord Chief Justice under paragraphs 5 and 6, and
25
(b)
that—
(i)
the Board has obtained advice from the OFT and the
Consumer Panel or the period within which that advice is
required to be given has expired, and
(ii)
the Board has obtained advice from the Lord Chief Justice or
30
the period within which that advice is required to be given
has expired.
      (4)
The consent requirement is that—
(a)
the Board has given the Lord Chancellor a copy of any advice given
under paragraph 5 or 6, and
35
(b)
the Lord Chancellor has consented to the Board’s refusal of the
request.
Decision to hold investigation
9     (1)
This paragraph applies where the Board has decided, following inquiries
under paragraph 3 or 4, to hold a section 24 investigation or a section 26
40
investigation in respect of an activity.
      (2)
The Board must, as soon as reasonably practicable, give notice of its decision
to—
(a)
the Lord Chancellor,

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Schedule 6 — Alteration of reserved legal activities
155

(b)
the OFT,
(c)
the Consumer Panel, and
(d)
the Lord Chief Justice,

and publish the notice.
      (3)
The notice must—
5
(a)
state the Board’s reasons for its decision to hold the investigation,
and
(b)
contain a description (in general terms) of the procedure set out in
paragraphs 10 to 17 and in rules under this Schedule, including any
relevant time limits.
10
Duty to investigate and produce a provisional report within the investigation period
10    (1)
This paragraph applies where the Board has given notice under paragraph
9(2) of—
(a)
a decision to hold a section 24 investigation, or
(b)
a decision to hold a section 26 investigation,
15

in respect of an activity.
      (2)
The Board must within the investigation period—
(a)
carry out such investigations as it considers appropriate for the
purposes of enabling it to produce a provisional report in respect of
the activity, and
20
(b)
produce and publish such a report.
      (3)
A provisional report is a report stating—
(a)
in a case within sub-paragraph (1)(a), whether or not the Board is
minded to make a recommendation for the purposes of section 24
(recommendation that activity should become a reserved legal
25
activity);
(b)
in a case within sub-paragraph (1)(b), whether or not the Board is
minded to make a recommendation for the purposes of section 26
(recommendation that activity should cease to be a reserved legal
activity).
30
      (4)
A provisional report must also state the Board’s reasons for it being, or not
being, minded to make the recommendation in question.
“The investigation period”
11    (1)
“The investigation period” means the period of 12 months beginning with
the day on which the notice was given under paragraph 9(2).
35
      (2)
The Board may, before the end of the investigation period, issue a notice
extending that period by a period specified in the notice.
      (3)
More than one notice may be issued under sub-paragraph (2) but the total
investigation period must not exceed 16 months.
      (4)
The Board may issue a notice under sub-paragraph (2) only after it has
40
consulted—
(a)
the OFT,
(b)
the Consumer Panel, and
(c)
the Lord Chief Justice.

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      (5)
A notice under sub-paragraph (2) must state the Board’s reasons for
extending the investigation period.
      (6)
The Board must publish any notice issued under sub-paragraph (2).
Supplementary provisions about the investigation
12    (1)
This paragraph applies for the purposes of investigations under paragraph
5
10(2)(a).
      (2)
The Board may make rules governing the making of oral and written
representations, and the giving of oral and written evidence, to the Board.
      (3)
Rules under sub-paragraph (2) may (among other things) include—
(a)
provision about the time and place at which any oral evidence is to
10
be given or oral representations are to be heard;
(b)
provision about the period within which any written evidence is to
be given or written representations are to be made.
      (4)
In relation to each investigation, the Board must determine if, and to what
extent—
15
(a)
oral evidence or representations should be heard, and
(b)
written evidence or representations should be received.
      (5)
The Board must, so far as is reasonably practicable, consider any written or
oral representations duly made under this paragraph.
Consideration of the provisional report
20
13    (1)
The Board may make rules governing the making to the Board of oral and
written representations in respect of provisional reports.
      (2)
Rules under sub-paragraph (1) may (among other things) include—
(a)
provision about the time and place at which any oral representations
are to be heard;
25
(b)
provision about the period within which any written representations
are to be made.
      (3)
The Board must exercise the power conferred by sub-paragraph (1) to make
provision—
(a)
enabling written representations and, so far as is reasonably
30
practicable, oral representations to be made by affected practitioners,
and
(b)
enabling written or oral representations to be made by bodies which
represent affected practitioners.
      (4)
An “affected practitioner” is a person carrying on the activity in respect of
35
which the investigation is being held.
14    (1)
For the purpose of making a decision under paragraph 16(1)(a) or (b), the
Board must, after publication of a provisional report, determine if and to
what extent further evidence should be heard or received.
      (2)
The Board may make rules governing the giving of such evidence.
40
      (3)
Rules under sub-paragraph (2) may (among other things) include—

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(a)
provision about the time and place at which any oral evidence is to
be given;
(b)
provision about the period within which any written evidence is to
be given.
15
The Board must, so far as is reasonably practicable, consider—
5
(a)
any written or oral representations made in accordance with rules to
which paragraph 13(3) applies, and
(b)
any other representations made in accordance with rules under
paragraph 13(1), and any written or oral evidence given in
accordance with rules under paragraph 14(2), which the Board
10
considers relevant.
Duty to prepare final report within the final reporting period
16    (1)
After complying with paragraph 15, the Board must decide—
(a)
in the case of a section 24 investigation, whether or not to make a
recommendation for the purposes of that section, and
15
(b)
in the case of a section 26 investigation, whether or not to make a
recommendation for the purposes of that section.
      (2)
The Board must prepare a report (“the final report”) which sets out—
(a)
its decision and the reasons for it,
(b)
where it decides to make a recommendation for the purposes of
20
section 24 or 26, that recommendation, and
(c)
where it decides to make a recommendation for the purposes of
section 24, a statement of the provision which, in the Board’s
opinion, will need to be made by virtue of section 204(3) or in an
order under section 208 (power to make consequential provision,
25
transitional provision etc) if an order is made under section 24 in
accordance with that recommendation.
      (3)
The Board must—
(a)
give a copy of the final report to the Lord Chancellor, and
(b)
publish that report.
30
      (4)
The Board must comply with the obligations imposed by this paragraph
within the final reporting period.
“The final reporting period”
17    (1)
“The final reporting period” means the period of 3 months beginning with
the date on which the provisional report was published under paragraph
35
10(2).
      (2)
The Board may, before the end of the final reporting period, issue a notice
extending that period by a period specified in the notice.
      (3)
More than one notice may be issued under sub-paragraph (2), but the total
final reporting period must not exceed 5 months.
40
      (4)
The Board may issue a notice under sub-paragraph (2) only after it has
consulted—
(a)
the OFT,
(b)
the Consumer Panel, and

Legal Services Bill [HL]
Schedule 7 — Directions: procedure
158

(c)
the Lord Chief Justice.
      (5)
A notice under sub-paragraph (2) must state the Board’s reasons for
extending the final reporting period.
      (6)
The Board must publish a notice issued under sub-paragraph (2).
Costs
5
18
The Board may pay such costs of a person as the Board considers reasonable
for the purpose of facilitating the giving of oral evidence or the making of
oral representations, by or on behalf of that person, in accordance with rules
made under this Schedule.
Schedule 7
10
Section 33

Directions: procedure
Introductory
1
This Schedule applies where the Board proposes giving a direction to an
approved regulator under section 32.
Notification of the approved regulator
15
2     (1)
The Board must give the approved regulator a notice (“a warning notice”)
accompanied by a copy of the proposed direction.
      (2)
The warning notice must—
(a)
state that the Board proposes to give the approved regulator a
direction in the form of the accompanying draft,
20
(b)
specify why the Board is satisfied as mentioned in section 32(1) and
(2), and
(c)
specify a period within which the approved regulator may make
representations with respect to the proposal.
      (3)
The period specified under sub-paragraph (2)(c)—
25
(a)
must begin with the date on which the warning notice is given to the
approved regulator, and
(b)
must not be less than 14 days.
      (4)
The approved regulator may make to the Board—
(a)
written representations, and
30
(b)
if the Board authorises it to do so, oral representations,

about the proposed direction.
      (5)
The Board must make rules governing the making of oral and written
representations.
      (6)
The Board must consider any representations duly made by the approved
35
regulator.
      (7)
Where oral representations are duly made, the Board must prepare a report
of those representations.