Legal Services Bill [HL]

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order
173

      (6)
An applicant may, at any time, withdraw the application by giving notice to
that effect to the Board.
Dismissal of application
2     (1)
The Board may refuse to consider, or to continue its consideration of, an
application.
5
      (2)
The Board must make rules about the procedures and criteria that it will
apply when determining whether to refuse to consider, or to continue its
consideration of, an application under sub-paragraph (1).
      (3)
Where the Board decides to refuse to consider, or to continue its
consideration of, an application it must give the applicant notice of that
10
decision and of its reasons for it.
      (4)
The Board must publish a notice given under sub-paragraph (3).
Board’s duty to seek advice
3     (1)
The Board must give each of the persons listed in sub-paragraph (2)—
(a)
a copy of the application and accompanying material, and
15
(b)
a notice specifying a period within which any advice given under
paragraphs 4 to 6 must be given.
      (2)
Those persons are—
(a)
the OFT,
(b)
the Consumer Panel,
20
(c)
the Lord Chief Justice, and
(d)
such other persons as the Board considers it reasonable to consult
regarding the application.
      (3)
In this Part of this Schedule, in relation to an application, “selected
consultee” means a person within sub-paragraph (2)(d).
25
Advice of Office of Fair Trading
4     (1)
The OFT must give the Board such advice as the OFT thinks fit regarding
whether the application should be granted.
      (2)
In deciding what advice to give, the OFT must, in particular, have regard to
whether making an order under paragraph 15 in accordance with the
30
recommendation applied for would (or would be likely to) prevent, restrict
or distort competition within the market for reserved legal services to any
significant extent.
Advice of the Consumer Panel
5     (1)
The Consumer Panel must give the Board such advice as the Consumer
35
Panel thinks fit regarding whether the application should be granted.
      (2)
In deciding what advice to give, the Consumer Panel must, in particular,
have regard to the likely impact on consumers of the making of an order
under paragraph 15 in accordance with the recommendation applied for.

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order
174

Advice of selected consultees
6
A selected consultee may give the Board such advice as the selected
consultee thinks fit in respect of the application.
Advice of the Lord Chief Justice
7     (1)
The Board must give the Lord Chief Justice—
5
(a)
a copy of any advice duly given under paragraphs 4 to 6, and
(b)
a notice specifying a period within which any advice under this
paragraph must be given.
      (2)
The Lord Chief Justice must then give such advice to the Board as the Lord
Chief Justice thinks fit regarding whether the application should be granted.
10
      (3)
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 paragraph 15 in accordance with the
recommendation applied for.
Information obtained by consultees
15
8
A person (“the consultee”) to whom a copy of the application is given under
paragraph 3(1) may, for the purposes of giving advice under paragraphs 4
to 7, request the applicant or any other person to provide the consultee with
such additional information as may be specified by the consultee.
Representations by applicant
20
9     (1)
The Board must give the applicant a copy of any advice duly given under
paragraphs 4 to 7.
      (2)
The applicant may make to the Board—
(a)
written representations, and
(b)
if the Board authorises it to do so, oral representations,
25

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
30
the advice is given to the applicant, 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—
35
(a)
give the applicant a reasonable opportunity to comment on a draft of
the report, and
(b)
have regard to any comments duly made.

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order
175

Publication of advice and representations etc
10    (1)
The Board must, as soon as practicable after the end of the period within
which representations under paragraph 9 may be made, publish—
(a)
any advice duly given under paragraphs 4 to 7,
(b)
any written representations duly made under paragraph 9 and the
5
report (if any) prepared under that paragraph.
      (2)
Nothing in sub-paragraph (1) operates—
(a)
to prevent a person who gives advice under paragraphs 4 to 7 from
publishing that advice, or
(b)
to prevent a person who makes representations under paragraph 9
10
from publishing those representations.
      (3)
A person (“the publisher”) publishing any such material (whether under
sub-paragraph (1) or otherwise) must, so far as practicable, exclude any
matter which relates to the private affairs of a particular individual the
publication of which, in the opinion of the publisher, would or might
15
seriously and prejudicially affect the interests of that individual.
Rules governing decisions by the Board
11    (1)
The Board must make rules specifying how it will determine applications.
      (2)
Rules under sub-paragraph (1) must, in particular, provide that the Board
may grant an application in relation to a particular reserved legal activity
20
only if it is satisfied—
(a)
that the applicant’s proposed licensing rules in relation to the
activity comply with the requirements of section 83;
(b)
that, if an order were to be made under paragraph 15 designating the
body in relation to the activity, there would be a body with power to
25
hear and determine appeals which, under this Part or the applicant’s
proposed licensing rules, may be made against decisions of the
applicant;
(c)
that, if an order were to be made under paragraph 15 designating the
body in relation to the activity, the applicant would have appropriate
30
internal governance arrangements in place at the time the order takes
effect;
(d)
that, if an order were made under paragraph 15 designating the body
in relation to the activity, the applicant would be competent, and
have sufficient resources, to perform the role of licensing authority in
35
relation to the activity at the time the order takes effect.
      (3)
The rules made for the purposes of sub-paragraph (2)(c) must in particular
require the Board to be satisfied—
(a)
that the exercise of the applicant’s regulatory functions would not be
prejudiced by any of its representative functions, and
40
(b)
that decisions relating to the exercise of its regulatory functions
would so far as reasonably practicable be taken independently from
decisions relating to the exercise of its representative functions.
Determination of applications
12    (1)
After considering—
45
(a)
the application and accompanying material,

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 1 — Designation of approved regulators by order
176

(b)
any other information provided by the applicant,
(c)
any advice duly given under paragraphs 4 to 7,
(d)
any representations duly made under paragraph 9, and
(e)
any other information which the Board considers relevant to the
application,
5

the Board must decide whether to grant the application.
      (2)
Where the application relates to more than one reserved legal activity, the
Board may grant the application in relation to all or any of them.
      (3)
The Board must give notice of its decision to the applicant (“the decision
notice”).
10
      (4)
Where the Board decides to refuse the application (in whole or in part), the
decision notice must specify the reasons for that decision.
      (5)
The Board must publish the decision notice.
13    (1)
Where an application is made under this Part, the Board must give the
decision notice under paragraph 12 within the decision period.
15
      (2)
The “decision period” is the period of 12 months beginning with the day on
which the application is made to the Board.
      (3)
The Board may, before the end of the decision period, issue a notice
extending that period by a period specified in the notice.
      (4)
More than one notice may be issued under sub-paragraph (3), but the
20
decision period must not exceed 16 months.
      (5)
The Board may issue a notice under sub-paragraph (3) only after it has—
(a)
consulted the OFT, the Consumer Panel and the Lord Chief Justice,
and
(b)
obtained the Lord Chancellor’s consent to the extension.
25
      (6)
A notice under sub-paragraph (3) must state the Board’s reasons for
extending the decision period.
      (7)
The Board must publish any notice issued under sub-paragraph (3).
Effect of grant of application
14    (1)
This paragraph applies where an application is granted in relation to a
30
reserved legal activity or activities.
      (2)
The Board must recommend to the Lord Chancellor that an order be made
designating the applicant as a licensing authority in relation to the reserved
legal activity or activities in question.
      (3)
The Board must publish any recommendation made under sub-paragraph
35
(2).
      (4)
The Board must make available to the Lord Chancellor—
(a)
any advice duly given under paragraphs 4 to 7,
(b)
any written representations duly made under paragraph 9 and the
report (if any) prepared under that paragraph, and
40
(c)
any other material considered by the Board for the purpose of
determining the application.

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 2 — Cancellation of designation by order
177

Lord Chancellor’s decision to make an order
15    (1)
Where a recommendation is made to the Lord Chancellor under paragraph
14, the Lord Chancellor may—
(a)
make an order in accordance with the recommendation, or
(b)
refuse to make such an order.
5
      (2)
Where the recommendation relates to more than one reserved legal activity,
the Lord Chancellor may make an order under sub-paragraph (1)(a) in
relation to all or any of them.
      (3)
But if the application, in relation to a particular reserved legal activity, was
made in reliance on paragraph 1(3)(b), the Lord Chancellor must not make
10
an order in relation to that activity unless the Lord Chancellor has made an
order under Part 2 of Schedule 4 designating the body as an approved
regulator in relation to that activity.
      (4)
The Lord Chancellor must—
(a)
decide whether to make an order under this paragraph, and
15
(b)
give notice of that decision (“the decision notice”) to the applicant,

within the period of 90 days beginning with the day on which the
recommendation was made.
      (5)
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
20
reasons for the decision.
      (6)
The Lord Chancellor must publish the decision notice.
Approval of licensing rules
16    (1)
Where an order is made by the Lord Chancellor under paragraph 15, the
applicant’s proposed licensing rules are at the same time treated as having
25
been approved by the Board.
      (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 licensing rules were a reference to
those rules excluding any provision made in respect of any activities
30
excluded from the order.
      (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).
35
Part 2
Cancellation of designation by order
Introductory
17
This Part of this Schedule applies where the Board considers that it may be
appropriate for it to make a recommendation under section 76(5).
40

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 2 — Cancellation of designation by order
178

Notification of the licensing authority
18    (1)
The Board must give the licensing authority a notice (“a warning notice”)
accompanied by a draft of the proposed recommendation.
      (2)
The warning notice must—
(a)
state that the Board proposes to make a recommendation under
5
subsection (5) of section 76 in the form of the accompanying draft,
and
(b)
state the reasons why the Board is satisfied of the matters mentioned
in paragraphs (a) and (b) of that subsection.
      (3)
The Board must publish a copy of the warning notice.
10
      (4)
The licensing authority may make to the Board—
(a)
written representations, and
(b)
if the Board authorises it to do so, oral representations,

about the proposed recommendation.
      (5)
The Board must make rules governing the making of oral and written
15
representations.
      (6)
Representations under this paragraph must be made within—
(a)
the period of 28 days beginning with the day on which the warning
notice is given to the licensing authority, or
(b)
such longer period as the Board may specify in a particular case.
20
      (7)
The Board must consider any representations duly made by the licensing
authority.
      (8)
Where oral representations are duly made, the Board must prepare a report
of those representations.
      (9)
Before preparing that report, the Board must—
25
(a)
give the licensing authority a reasonable opportunity to comment on
a draft of the report, and
(b)
have regard to any comments duly made.
Board’s duty to seek advice
19    (1)
After complying with paragraph 18, the Board must give each of the persons
30
listed in sub-paragraph (2)—
(a)
a copy of the warning notice and the accompanying draft,
(b)
a copy of any written representations duly made by the licensing
authority under paragraph 18 and a copy of the report (if any)
prepared under that paragraph, and
35
(c)
a notice specifying a period within which any advice under
paragraphs 20 to 22 must be given.
      (2)
Those persons are—
(a)
the OFT,
(b)
the Consumer Panel,
40
(c)
the Lord Chief Justice, and
(d)
such other persons as the Board considers it reasonable to consult in
respect of the proposed recommendation.

Legal Services Bill [HL]
Schedule 10 — Designation of approved regulators as licensing authorities
Part 2 — Cancellation of designation by order
179

      (3)
In this Part of this Schedule, in relation to a proposed recommendation,
“selected consultee” means a person within sub-paragraph (2)(d).
Advice of Office of Fair Trading
20    (1)
The OFT must give the Board such advice as it thinks fit regarding whether
the proposed recommendation should be made.
5
      (2)
In deciding what advice to give, the OFT must, in particular, have regard to
whether making an order under section 76 in accordance with the proposed
recommendation would (or would be likely to) prevent, restrict or distort
competition within the market for reserved legal services to any significant
extent.
10
Advice of the Consumer Panel
21    (1)
The Consumer Panel must give the Board such advice as it thinks fit
regarding whether the proposed recommendation should be made.
      (2)
In deciding what advice to give, the Consumer Panel must, in particular,
have regard to the likely impact on consumers of making an order under
15
section 76 in accordance with the proposed recommendation.
Advice of selected consultees
22
A selected consultee may give the Board such advice as the selected
consultee thinks fit in respect of the proposed recommendation.
Advice of the Lord Chief Justice
20
23    (1)
The Board must give the Lord Chief Justice—
(a)
a copy of any advice duly given under paragraphs 20 to 22, and
(b)
a notice specifying a period within which advice under this
paragraph must be given.
      (2)
The Lord Chief Justice must then give such advice as the Lord Chief Justice
25
thinks fit in respect of the proposed recommendation.
      (3)
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
making an order under section 76 in accordance with the proposed
recommendation.
30
Information obtained by consultees
24
A person (“the consultee”) to whom a copy of the warning notice is given
under paragraph 19(1) may, for the purposes of giving advice under
paragraphs 20 to 23, request the licensing authority or any other person to
provide the consultee with such additional information as may be specified
35
by the consultee.
Representations by the approved regulator etc
25    (1)
The Board must—
(a)
give the licensing authority a copy of any advice duly given under
paragraphs 20 to 23, and
40