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Session 2006 - 07
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Legal Services Bill [HL]


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

180

 

(b)   

publish that advice together with any written representations duly

made by the licensing authority under paragraph 18 and the report

(if any) prepared under that paragraph.

      (2)  

The licensing authority and any body within sub-paragraph (3) may make

to the Board—

5

(a)   

written representations, and

(b)   

if authorised to do so by the Board, oral representations,

           

about the advice.

      (3)  

A body is within this sub-paragraph if it represents licensed bodies

authorised by the licensing authority to carry on activities which are

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reserved legal activities.

      (4)  

The Board may allow any other person to make written or oral

representations about the advice.

      (5)  

The Board may make rules governing the making to the Board of written or

oral representations.

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      (6)  

Representations under this paragraph must be made within—

(a)   

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

representations and advice are published under sub-paragraph

(1)(b), or

(b)   

such longer period as the Board may specify in a particular case.

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      (7)  

Where oral representations are made, the Board must prepare a report of

those representations.

      (8)  

Before preparing that report, the Board must—

(a)   

give each person who made oral representations a reasonable

opportunity to comment on a draft of the report of those

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representations, and

(b)   

have regard to any comments duly made.

      (9)  

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

within which representations under this paragraph may be made, publish

any written representations duly made and the report (if any) prepared

30

under sub-paragraph (7).

Publication of advice etc

26    (1)  

Nothing in paragraph 25 operates—

(a)   

to prevent a person who gives advice under paragraphs 20 to 23 from

publishing that advice, or

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(b)   

to prevent a person who makes representations under paragraph 18

or 25 from publishing those representations.

      (2)  

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

paragraph 25 or otherwise) must, so far as practicable, exclude any matter

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

40

of which, in the opinion of the publisher, would or might seriously and

prejudicially affect the interests of that individual.

Decision by the Board

27    (1)  

After considering—

 

 

Legal Services Bill [HL]
Schedule 11 — Licensing rules
Part 1 — Licensing procedure

181

 

(a)   

any advice duly given under paragraphs 20 to 23,

(b)   

any representations duly made under paragraph 18 or 25, and

(c)   

any other information which the Board considers relevant,

           

the Board must decide whether to make the proposed recommendation.

      (2)  

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

5

licensing authority and to the Lord Chancellor.

      (3)  

If the Board decides to make the proposed recommendation, the decision

notice must—

(a)   

contain the recommendation, and

(b)   

state why the Board is satisfied of the matters mentioned in section

10

76(5)(a) and (b).

      (4)  

The Board must publish the decision notice.

Schedule 11

Section 83

 

Licensing rules

Part 1

15

Licensing procedure

Applications for licences

1     (1)  

Licensing rules must make provision about the form and manner in which

applications for licences are to be made, and the fee (if any) which is to

accompany an application.

20

      (2)  

They may make provision about—

(a)   

the information which applications must contain, and

(b)   

the documents which must accompany applications.

Determination of applications

2     (1)  

Licensing rules must make the following provision about the determination

25

of applications for licences.

      (2)  

Before the end of the decision period the licensing authority must—

(a)   

decide the application,

(b)   

notify the applicant of its decision, and

(c)   

if it decides to refuse the application, set out in the notice the reasons

30

for the refusal.

      (3)  

The decision period is the period of 6 months beginning with the day on

which the application is made to the licensing authority in accordance with

its licensing rules.

      (4)  

The licensing authority may, on one or more occasions, give the applicant a

35

notice (an “extension notice”) extending the decision period by a period

specified in the notice.

      (5)  

But—

 

 

Legal Services Bill [HL]
Schedule 11 — Licensing rules
Part 1 — Licensing procedure

182

 

(a)   

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

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

(b)   

the total decision period must not exceed 9 months.

      (6)  

An extension notice must set out the reasons for the extension.

Review of determination

5

3          

Licensing rules must make provision for review by the licensing authority

of—

(a)   

a decision to refuse an application for a licence;

(b)   

if a licence is granted, the terms of the licence.

Period of licence and renewal

10

4     (1)  

The licensing rules may make provision—

(a)   

limiting the period for which any licence is (subject to the provision

of this Part of this Schedule and of the licensing rules) to remain in

force;

(b)   

about the renewal of licences, including provision about the form

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and manner in which an application for the renewal is to be made,

and the fee (if any) which is to accompany an application.

      (2)  

The licensing rules may make provision about—

(a)   

the information which applications for renewal must contain, and

(b)   

the documents which must accompany applications.

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      (3)  

Licensing rules must provide that a licence issued to a licensed body by the

licensing authority ceases to have effect if the licensed body is issued with a

licence by another licensing authority.

Continuity of licences

5     (1)  

Licensing rules may make provision about the effect, on a licence issued to

25

a partnership or other unincorporated body (“the existing body”), of any

change in the membership of the existing body.

      (2)  

The provision which may be made includes provision for the existing body’s

licence to be transferred where the existing body ceases to exist and another

body succeeds to the whole or substantially the whole of its business.

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Modification of licences

6     (1)  

Licensing rules must make provision about the form and manner in which

applications are to be made for modification of the terms of a licence under

section 86, and the fee (if any) which is to accompany the application.

      (2)  

They may make provision as to the circumstances in which the licensing

35

authority may modify the terms of a licence under section 86 without an

application being made.

      (3)  

They must make provision for review by the licensing authority of—

(a)   

a decision to refuse an application for modification of the terms of a

licence;

40

(b)   

if the licensing authority makes licensing rules under sub-paragraph

(2), a decision under those rules to modify the terms of a licence.

 

 

Legal Services Bill [HL]
Schedule 11 — Licensing rules
Part 2 — Structural requirements

183

 

Modifications under section 106 or 107

7     (1)  

Licensing rules must make provision about the form and manner in which

applications are to be made under section 106 or 107, and the fee (if any)

which is to accompany the application.

      (2)  

They may make provision as to the matters to which the licensing authority

5

must have regard in determining whether to make an order under section

106, or to revoke or modify such an order.

      (3)  

They must make provision for review by the licensing authority of—

(a)   

a decision to refuse an application under those sections;

(b)   

the terms of any order made under section 106 or any decision under

10

section 107.

8     (1)  

Licensing rules must make the following provision in relation to licensed

bodies to which section 106 applies (“special bodies”), and in relation to

which an order under section 106 has been made.

      (2)  

If a special body becomes a special body of a different kind, it must notify

15

the licensing authority of that fact before the end of the relevant period.

      (3)  

If a special body ceases to be a special body, it must notify the licensing

authority of that fact before the end of the relevant period.

      (4)  

The relevant period is the period of 30 days (or such longer period as may be

specified in licensing rules) beginning with the day on which the body first

20

became a special body of a different kind, or ceased to be a special body.

      (5)  

Licensing rules may make provision requiring a special body to provide the

licensing authority with such information relevant to the matters mentioned

in section 106(5) as may be specified in the licensing rules.

Part 2

25

Structural requirements

Management

9     (1)  

Licensing rules must require a licensed body to comply with the following

requirement at all times.

      (2)  

At least one of the licensed body’s managers must be a person (other than a

30

licensed body) who is an authorised person in relation to a licensed activity.

      (3)  

No manager of the licensed body may be a person who under this Part of this

Act is disqualified from acting as a manager of a licensed body.

10    (1)  

Licensing rules may make further provision as to—

(a)   

the managers of licensed bodies, and

35

(b)   

the arrangements for the management by them of the licensed body

and its activities.

      (2)  

They must not require all the managers of a licensed body to be authorised

persons in relation to a reserved legal activity.

 

 

Legal Services Bill [HL]
Schedule 11 — Licensing rules
Part 2 — Structural requirements

184

 

Head of Legal Practice

11    (1)  

Licensing rules must include the following requirements.

      (2)  

A licensed body must at all times have an individual—

(a)   

who is designated as Head of Legal Practice, and

(b)   

whose designation is approved by the licensing authority.

5

      (3)  

A designation of an individual as Head of Legal Practice has effect only

while the individual—

(a)   

consents to the designation,

(b)   

is an authorised person in relation to one or more of the licensed

activities, and

10

(c)   

is not under this Part of this Act disqualified from acting as Head of

Legal Practice of a licensed body.

      (4)  

The licensing authority may approve a person’s designation only if it is

satisfied that the person is a fit and proper person to carry out the duties

imposed by section 91 in relation to that body.

15

      (5)  

The licensing authority may approve a person’s designation in the course of

determining an application for a licence under section 84.

      (6)  

If the licensing authority is satisfied that the person designated as a licensed

body’s Head of Legal Practice has breached a duty imposed by section 91, it

may withdraw its approval of that person’s designation.

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12    (1)  

Licensing rules must make provision—

(a)   

about the procedures and criteria that will be applied by the

licensing authority when determining under paragraph 11(4)

whether an individual is a fit and proper person;

(b)   

for a review by the licensing authority of a determination under that

25

paragraph that an individual is not a fit and proper person;

(c)   

about the procedures and criteria that will be applied by the

licensing authority in determining under paragraph 11(6) whether to

withdraw its approval;

(d)   

for a review by the licensing authority of a determination under that

30

paragraph to withdraw its approval;

(e)   

about the procedure which is to apply where a licensed body ceases

to comply with the requirement imposed by virtue of paragraph

11(2).

      (2)  

Rules made in accordance with sub-paragraph (1)(e) may in particular

35

provide that the requirement imposed by virtue of paragraph 11(2) is

suspended until such time as may be specified by the licensing authority if

the licensed body complies with such other requirements as may be

specified in the rules.

Head of Finance and Administration

40

13    (1)  

Licensing rules must include the following requirements.

      (2)  

A licensed body must at all times have an individual—

(a)   

who is designated as Head of Finance and Administration, and

(b)   

whose designation is approved by the licensing authority.

 

 

Legal Services Bill [HL]
Schedule 11 — Licensing rules
Part 3 — Practice requirements

185

 

      (3)  

A designation of an individual as Head of Finance and Administration has

effect only while the individual—

(a)   

consents to the designation, and

(b)   

is not under this Part of this Act disqualified from acting as Head of

Finance and Administration of a licensed body.

5

      (4)  

The licensing authority may approve a person’s designation only if it is

satisfied that the person is a fit and proper person to carry out the duties

imposed by section 92 in relation to that body.

      (5)  

The licensing authority may approve a person’s designation in the course of

determining an application for a licence under section 84.

10

      (6)  

If the licensing authority is satisfied that the person designated as a licensed

body’s Head of Finance and Administration has breached a duty imposed

by section 92, it may withdraw its approval of that person’s designation.

14    (1)  

Licensing rules must make provision—

(a)   

about the procedures and criteria that will be applied by the

15

licensing authority when determining under paragraph 13(4)

whether an individual is a fit and proper person;

(b)   

for a review by the licensing authority of a determination under that

paragraph that an individual is not a fit and proper person;

(c)   

about the procedures and criteria that will be applied by the

20

licensing authority in determining under paragraph 13(6) whether to

withdraw its approval;

(d)   

for a review by the licensing authority of a determination under that

paragraph to withdraw its approval;

(e)   

about the procedure which is to apply where a licensed body ceases

25

to comply with the requirement imposed by virtue of paragraph

13(2).

      (2)  

The rules made in accordance with sub-paragraph (1)(e) may in particular

provide that the requirement imposed by virtue of sub-paragraph 13(2) is

suspended until such time as may be specified by the licensing authority if

30

the licensed body complies with such other requirements as may be

specified in the rules.

Part 3

Practice requirements

Practising address

35

15    (1)  

Licensing rules must require a licensed body, other than one to which sub-

paragraph (3) applies, at all times to have a practising address in England

and Wales.

      (2)  

For this purpose “practising address”, in relation to a licensed body, means

an address from which the body provides services which consist of or

40

include the carrying on of reserved legal activities.

      (3)  

This sub-paragraph applies to a licensed body—

(a)   

which is a company or limited liability partnership, and

(b)   

the registered office of which is situated in England and Wales (or in

Wales).

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Legal Services Bill [HL]
Schedule 11 — Licensing rules
Part 3 — Practice requirements

186

 

Licensed activities

16         

Licensing rules must provide that a licensed body may carry on a licensed

activity only through a person who is entitled to carry on the activity.

Compliance with regulatory arrangements etc

17    (1)  

Licensing rules must include the following provision.

5

      (2)  

A licensed body must at all times have suitable arrangements in place to

ensure that—

(a)   

it, and its managers and employees, comply with the duties imposed

by section 176, and

(b)   

it, and any person to whom sub-paragraph (3) applies, maintain the

10

professional principles set out in section 1(3).

      (3)  

This sub-paragraph applies to any manager or employee of the licensed

body who is an authorised person in relation to an activity which is a

reserved legal activity.

      (4)  

A licensed body must at all times have suitable arrangements in place to

15

ensure that non-authorised persons subject to the duty imposed by section

90 in relation to the licensed body comply with that duty.

      (5)  

Licensing rules may make provision as to the arrangements which are

suitable for the purposes of rules made under sub-paragraphs (2) and (4).

Disqualified employees

20

18    (1)  

Licensing rules must include the following requirement.

      (2)  

A licensed body may not employ a person who under this Part of this Act is

disqualified from being an employee of a licensed body.

Indemnification arrangements and compensation arrangements

19    (1)  

For the purpose of giving effect to indemnification arrangements and

25

compensation arrangements, licensing rules may—

(a)   

authorise or require the licensing authority to establish and maintain

a fund or funds;

(b)   

authorise or require the licensing authority to take out and maintain

insurance with authorised insurers;

30

(c)   

require licensed bodies or licensed bodies of any specific description

to take out and maintain insurance with authorised insurers.

      (2)  

In this paragraph “authorised insurer” has the same meaning as in section

64.

Accounts

35

20    (1)  

The licensing rules must make provision as to the treatment of money within

sub-paragraph (2), and the keeping of accounts in respect of such money.

      (2)  

The money referred to in sub-paragraph (1) is money (including money held

on trust) which is received, held or dealt with by the licensed body, its

managers and employees for clients or other persons.

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