Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

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79
Cancellation of designation: powers of entry etc
(1)
This section applies where an approved regulator (“the former authority”) has
its designation in relation to one or more reserved legal activities cancelled by
by virtue of section 75 or an order under section 76.
(2)
The Board may request the former authority to provide assistance to the new
5
authority and the Board, for the purpose of continuing regulation.
(3)
On an application by a person appointed by the Board to act on its behalf, a
judge of the High Court, Circuit judge or justice of the peace may issue a
warrant authorising that person to—
(a)
enter and search the premises of the former authority, and
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(b)
take possession of any written or electronic records found on the
premises.
(4)
A person so authorised may, for the purpose of continuing regulation, take
copies of written or electronic records found on a search carried out by virtue
of the warrant.
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(5)
The judge or justice of the peace may not issue the warrant unless satisfied that
its issue is necessary or desirable for the purpose of continuing regulation.
(6)
The Lord Chancellor must make regulations—
(a)
specifying further matters which a judge or justice of the peace must be
satisfied of, or matters which a judge or justice of the peace must have
20
regard to, before issuing a warrant, and
(b)
regulating the exercise of a power conferred by a warrant issued under
subsection (3) or by subsection (4) (whether by restricting the
circumstances in which a power may be exercised, by specifying
conditions to be complied with in the exercise of a power, or otherwise).
25
(7)
Regulations under subsection (6)(b) must in particular make provision as to
circumstances in which written or electronic records of which a person has
taken possession by virtue of a warrant issued under subsection (3) may be
copied or must be returned.
(8)
But the Lord Chancellor may not make regulations under subsection (6)
30
unless—
(a)
they are made in accordance with a recommendation made by the
Board, or
(b)
the Lord Chancellor has consulted the Board about the making of the
regulations.
35
(9)
The Board must make rules as to the persons it may appoint for the purposes
of subsection (3).
(10)
For the purposes of this section—
“authorised by the former authority”, “protected activity” and “new
authority” have the same meaning as for the purposes of section 77;
40
“the purpose of continuing regulation” means the purpose of enabling
bodies authorised by the former authority to continue to be authorised
and regulated in relation to the protected activity.

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Appeals
80
Functions of appellate bodies
(1)
The Lord Chancellor may by order—
(a)
establish a body to hear and determine appeals from decisions, made
by a person specified in the order in the person’s capacity as a licensing
5
authority, which are appealable under this Part or licensing rules made
by the person;
(b)
modify, or make any other provision relating to, the functions of a body
within subsection (2) or any other body, for the purpose of enabling the
body to hear and determine appeals from such decisions.
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(2)
The bodies mentioned in subsection (1)(b) are—
(a)
the Solicitors Disciplinary Tribunal;
(b)
the Discipline and Appeals Committee established by the Council of
Licensed Conveyancers under section 25 of the Administration of
Justice Act 1985 (c. 61).
15
(3)
The Lord Chancellor may make an order under subsection (1) only if—
(a)
the Board has made a recommendation in accordance with section 81,
(b)
a draft order was annexed to the recommendation, and
(c)
the order is in the same form as, or not materially different from, that
draft order.
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(4)
An order under this section may—
(a)
make provision as to the payment of fees, and award of costs, in
relation to such appeals;
(b)
modify provisions made by or under any enactment (including this Act
or any Act passed after this Act), prerogative instrument or other
25
instrument or document.
(5)
Any provision made by an order under this section may be expressed to be
conditional upon the person specified in the order being designated by an
order under Part 1 of Schedule 10 as a licensing authority in relation to one or
more reserved legal activities.
30
(6)
The powers to make an order conferred by this section are without prejudice
to any powers (statutory or non-statutory) which a body may have apart from
this section.
81
Procedural requirements relating to recommendations under section 80
(1)
A recommendation may be made under section 80 only with the consent of—
35
(a)
the person from whose decisions the appeals are to be made, and
(b)
where the recommendation is for an order under section 80(1)(b), the
body to which appeals are to be made.
(2)
Before making a recommendation under that section, the Board must publish
a draft of—
40
(a)
the proposed recommendation, and
(b)
the proposed draft order.
(3)
The draft must be accompanied by a notice which states that representations
about the proposals may be made to the Board within a specified period.

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(4)
Before making any recommendation, the Board must have regard to any
representations duly made.
(5)
If the draft order to be annexed to the recommendation differs from the draft
published under subsection (2)(b) in a way which is, in the opinion of the
Board, material, the Board must, before making the recommendation, publish
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the draft order along with a statement detailing the changes made and the
reasons for those changes.
Policy statement
82
Licensing authority policy statement
(1)
Each licensing authority must prepare and issue a statement of policy as to
10
how, in exercising its functions under this Part, it will comply with the
requirements of section 28 (or, in the case of the Board, section 3) (duties to
promote regulatory objectives etc).
(2)
A licensing authority may issue a statement under subsection (1) only with the
approval of the Board (acting otherwise than in its capacity as a licensing
15
authority or as an approved regulator).
(3)
A licensing authority may, with the approval of the Board (acting otherwise
than in its capacity as a licensing authority or as an approved regulator), alter
or replace a statement issued under this section.
(4)
If it does so, it must issue the altered or replacement statement.
20
(5)
In exercising its functions under this Part, a licensing authority must have
regard to the statement issued by it under this section.
(6)
A licensing authority must publish a statement issued by it under this section.
Licensing rules
83
Licensing rules
25
(1)
The Board (acting in its capacity as a licensing authority)—
(a)
must make suitable licensing rules before the end of the period of 12
months beginning with the day on which a licensable body first
becomes entitled to make an application to it for a licence by virtue of a
decision of the Board (acting otherwise than in its capacity as a
30
licensing authority or as an approved regulator) under Schedule 12;
(b)
may make or modify its licensing rules only with the approval of the
Board (acting otherwise than in its capacity as a licensing authority or
as an approved regulator).
(2)
In subsection (1)(a), “suitable licensing rules” means licensing rules which
35
constitute suitable regulatory arrangements (within the meaning of Schedule
12) in respect of licensable bodies entitled by virtue of a decision under that
Schedule to make an application to the Board for a licence.
(3)
Licensing rules made by an approved regulator have effect only at a time when
the approved regulator is a licensing authority (subject to any provision made
40
by an order under section 25).

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(4)
Licensing rules of a licensing authority are rules as to—
(a)
the licensing by the authority of licensable bodies, and
(b)
the regulation by the licensing authority of licensable bodies licensed
by it, and their managers and employees.
(5)
Licensing rules of a licensing authority must contain—
5
(a)
appropriate qualification regulations in respect of licensable bodies to
which the licensing authority proposes to issue licences under this Part,
(b)
appropriate arrangements (including conduct rules, discipline rules
and practice rules) under which the licensing authority will be able to
regulate the conduct of bodies licensed by it, and their managers and
10
employees,
(c)
appropriate indemnification arrangements,
(d)
appropriate compensation arrangements,
(e)
the provision required by sections 52 and 54 (resolution of regulatory
conflict) (including those provisions as applied by section 103),
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(f)
the provision required by sections 112 and 145 (requirements imposed
in relation to the handling of complaints), and
(g)
any other provision required to be contained in licensing rules by this
Act.
(6)
Without prejudice to the generality of subsection (4), licensing rules of a
20
licensing authority may contain any provision authorised by this Act.
(7)
Schedule 11 makes further provision as to the contents of licensing rules.
(8)
Subsections (5) to (7) are subject to—
(a)
section 105 (which exempts trade unions from certain provisions), and
(b)
section 106 (which provides for the modification of licensing rules in
25
their application to bodies to which that section applies).
(9)
Licensing rules may not apply to bodies to which section 106 applies in a way
which is different from the way they apply to other bodies, except by virtue of
an order under that section.
Licensing
30
84
Application for licence
(1)
A licensing authority other than the Board must determine any application for
a licence which is made to it.
(2)
The Board (acting in its capacity as a licensing authority) may determine an
application for a licence which is made to it only if the applicant is entitled to
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make the application by virtue of a decision of the Board (acting otherwise than
in its capacity as a licensing authority) under Schedule 12.
(3)
A licensing authority may not grant an application for a licence unless it is
satisfied that if the licence is granted the applicant will comply with its
licensing rules.
40
(4)
If the licensing authority grants an application for a licence, it must issue the
licence as soon as reasonably practicable.
(5)
The licence has effect from the date on which it is issued.

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(6)
References in this section to an application for a licence are to an application for
a licence which is—
(a)
made to a licensing authority by a licensable body, in accordance with
the authority’s licensing rules, and
(b)
accompanied by the required application fee (if any).
5
85
Terms of licence
(1)
A licence issued under section 84 must specify—
(a)
the activities which are reserved legal activities and which the licensed
body is authorised to carry on by virtue of the licence, and
(b)
any conditions subject to which the licence is granted.
10
(2)
If an order under section 106 has been made in relation to the licensed body,
the licence must also specify the terms of the order.
(3)
In the case of a licensing authority other than the Board, the licence may
authorise the licensed body to carry on activities which are reserved legal
activities only if the licensing authority is designated in relation to the reserved
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legal activities in question.
(4)
A licence must be granted subject to the condition that—
(a)
any obligation which may from time to time be imposed on the licensed
body or a person within subsection (5) by or under the licensing
authority’s licensing rules is complied with, and
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(b)
any other obligations imposed on the licensed body or a person within
that subsection by or under this or any other enactment (whether
passed before or after this Act) are complied with.
(5)
The persons mentioned in subsection (4) are the managers and employees of a
licensed body, and non-authorised persons having an interest or an indirect
25
interest, or holding a material interest, in the licensed body (in their capacity as
such).
(6)
A licence may be granted subject to such other conditions as the licensing
authority considers appropriate.
(7)
Those conditions may include conditions as to the non-reserved activities
30
which the licensed body may or may not carry on.
(8)
In this Part references to the terms of the licence are to the matters listed in
subsections (1) and (2).
86
Modification of licence
(1)
A licensing authority may modify the terms of a licence granted by it—
35
(a)
if the licensed body applies to the licensing authority, in accordance
with its licensing rules, for it to do so;
(b)
in such other circumstances as may be specified in its licensing rules.
(2)
If a licensed body is a body to which section 106 applies, the licensing authority
may modify the terms of its licence in accordance with sections 106 and 107.
40
(3)
A licensing authority modifies the terms of a licensed body’s licence by giving
the licensed body notice in writing of the modifications; and the modifications

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have effect from the time the licensing authority gives the licensed body the
notice or such later time as may be specified in the notice.
(4)
The licensing authority’s power under this section is subject to—
(a)
section 85(3) and (4), and
(b)
licensing rules made under paragraph 6 of Schedule 11.
5
87
Registers of licensed bodies
(1)
Each licensing authority must keep a register containing the names and places
of business of all bodies which hold or have held licences granted by the
licensing authority.
(2)
Where any licence held by a body is for the time being suspended, the licensing
10
authority shall cause that fact to be noted in the register in the entry for that
body.
(3)
A licensing authority must provide facilities for making the information
contained in the entries in its register available for inspection by any person
during office hours and without payment.
15
(4)
The Board may make rules about—
(a)
the register to be kept by the Board under this section, and
(b)
the register to be kept under this section by each licensing authority
designated under Part 1 of Schedule 10.
(5)
Rules under subsection (4) may in particular prescribe any further information
20
which must be contained in an entry in the register in relation to a licensed
body or former licensed body.
88
Evidence of status
(1)
A certificate signed by an officer of a licensing authority appointed for the
purpose and stating one of the matters within subsection (2) is, unless the
25
contrary is proved, evidence of the facts stated in the certificate.
(2)
The matters are that any person does or does not, or did or did not at any time,
hold a licence granted by the licensing authority under this Part.
(3)
A certificate purporting to be so signed is to be taken to have been so signed
unless the contrary is proved.
30
Ownership of licensed bodies
89
Ownership of licensed bodies
Schedule 13 makes provision about the holding of certain interests in licensed
bodies by non-authorised persons.
Regulation of licensed bodies
35
90
Duties of non-authorised persons
A non-authorised person who is an employee or manager of a licensed body,
or has an interest or an indirect interest, or holds a material interest, in a

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licensed body, must not do anything which causes or substantially contributes
to a breach by—
(a)
the licensed body, or
(b)
an employee or manager of the licensed body who is an authorised
person in relation to an activity which is a reserved legal activity,
5
of the duties imposed on them by section 176.
91
Duties of Head of Legal Practice
(1)
The Head of Legal Practice of a licensed body must—
(a)
take all reasonable steps to ensure compliance with the terms of the
licensed body’s licence, and
10
(b)
as soon as reasonably practicable, report to the licensing authority any
failure to comply with the terms of the licence.
(2)
Subsection (1) does not apply to the terms of the licence so far as they require
compliance with licensing rules made under paragraph 20 of Schedule 11
(accounts) (as to which see section 92).
15
(3)
The Head of Legal Practice of a licensed body must—
(a)
take all reasonable steps to ensure that the licensed body, and any of its
employees or managers who are authorised persons in relation to an
activity which is a reserved legal activity, comply with the duties
imposed by section 176, and
20
(b)
as soon as reasonably practicable, report to the licensing authority such
failures by those persons to comply with those duties as may be
specified in licensing rules.
(4)
The Head of Legal Practice of a licensed body must—
(a)
take all reasonable steps to ensure that non-authorised persons subject
25
to the duty imposed by section 90 in relation to the licensed body
comply with that duty, and
(b)
as soon as reasonably practicable, report to the licensing authority any
failure by a non-authorised person to comply with that duty.
92
Duties of Head of Finance and Administration
30
(1)
The Head of Finance and Administration of a licensed body must take all
reasonable steps to ensure compliance with licensing rules made under
paragraph 20 of Schedule 11 (accounts).
(2)
The Head of Finance and Administration must report any breach of those rules
to the licensing authority as soon as reasonably practicable.
35
93
Information
(1)
The relevant licensing authority in relation to a licensed body may by notice
require a person within subsection (2)—
(a)
to provide information, or information of a description, specified in the
notice, or
40
(b)
produce documents, or documents of a description, specified in the
notice,

for the purpose of enabling the licensing authority to ascertain whether the
terms of the licensed body’s licence are being, or have been, complied with.