Legal Services Bill [HL]

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Part 7 — Further provisions relating to the Board and the OLC
87

165
Procedure for making orders under section 164
(1)
The Lord Chancellor may make an order under section 164(2) only on the
recommendation of an interested body.
(2)
An interested body must, if requested to do so by the Lord Chancellor,
consider whether or not it is appropriate to make a recommendation for such
5
an order.
(3)
An interested body must, before making a recommendation for such an
order—
(a)
publish a draft of the proposed recommendation,
(b)
invite representations regarding the proposed recommendation, and
10
(c)
consider any such representations which are made.
(4)
Where the Lord Chancellor receives a recommendation from an interested
body for an order under section 164(2), the Lord Chancellor must consider
whether to follow the recommendation.
(5)
If the Lord Chancellor decides not to follow the recommendation, the Lord
15
Chancellor must publish a notice to that effect which includes the Lord
Chancellor’s reasons for the decision.
(6)
In this section “interested body” means—
(a)
the OLC,
(b)
the Board, or
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(c)
the Consumer Panel.
166
Operation of voluntary scheme
(1)
A complaint may be determined under the voluntary scheme only if—
(a)
the complainant falls within a class of persons specified in voluntary
scheme rules as qualified to make a complaint,
25
(b)
the complainant wishes to have the complaint dealt with under the
scheme,
(c)
at the time of the act or omission to which the complaint relates, the
respondent was participating in the scheme and voluntary scheme
rules were in force in relation to the legal services in question, and
30
(d)
at the time the complaint is made under the scheme the respondent has
not withdrawn from the scheme in accordance with its provisions.
(2)
A person qualifies for participation in the voluntary scheme if the person falls
within a class of persons specified as qualified in voluntary scheme rules.
(3)
In such circumstances as may be specified in voluntary scheme rules, a
35
complaint may be dealt with under the voluntary scheme even though
subsection (1)(c) would otherwise prevent that.
(4)
Subsection (3) applies only if the respondent participates in the voluntary
scheme on the basis that complaints of that kind are to be dealt with under the
scheme.
40
(5)
Complaints are to be dealt with and determined under the voluntary scheme
on standard terms fixed by the OLC with the consent of the Board.
(6)
The OLC may modify standard terms only with the consent of the Board.

Legal Services Bill [HL]
Part 7 — Further provisions relating to the Board and the OLC
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(7)
Section 204(3) applies to standard terms as it applies to rules made by the OLC.
(8)
The standard terms may in particular make provision—
(a)
requiring the making of payments to the OLC by persons participating
in the scheme of such amounts, at such times and in such
circumstances, as may be determined by the OLC;
5
(b)
as to the award of costs on the determination of a complaint (including
provision for an award of costs in favour of the OLC for the purpose of
providing a contribution to resources deployed in dealing with the
complaint).
(9)
In this section “legal services”, “the voluntary scheme” and “voluntary scheme
10
rules” have the same meaning as in section 164.
Disclosure and use of information
167
Restricted information
(1)
Except as provided by section 168, restricted information must not be
disclosed—
15
(a)
by a restricted person, or
(b)
by any person who receives the information directly or indirectly from
a restricted person.
(2)
In this section and section 168—
“restricted information” means information (other than excluded
20
information) which is obtained by the Board in the exercise of its
functions;
“restricted person” means—
(a)
the Board (including the Board in its capacity as an approved
regulator or a licensing authority),
25
(b)
a person who exercises functions delegated under paragraph 23
of Schedule 1 or section 73 or by virtue of section 64(2)(k).
(3)
For the purposes of subsection (2) “excluded information” means—
(a)
information which is in the form of a summary or collection of
information so framed as not to enable information relating to any
30
particular person to be ascertained from it;
(b)
information which at the time of the disclosure is or has already been
made available to the public from other sources;
(c)
information which was obtained more than 70 years before the date of
the disclosure.
35
168
Disclosure of restricted information
(1)
A restricted person may disclose restricted information to another restricted
person.
(2)
Restricted information may be disclosed for the purposes of enabling or
assisting the Board to exercise its functions (whether as an approved regulator,
40
a licensing authority or otherwise).
(3)
Section 167 also does not preclude the disclosure of restricted information—

Legal Services Bill [HL]
Part 7 — Further provisions relating to the Board and the OLC
89

(a)
where the disclosure is a result of the Board exercising any power to
publish information under this Act;
(b)
for the purposes of enabling or assisting the OLC, ombudsmen or
persons who exercise functions delegated under paragraph 22 of
Schedule 15, to exercise any of its or their functions,
5
(c)
to an approved regulator for the purposes of enabling or assisting the
approved regulator to exercise any of its functions,
(d)
with the consent of the person to whom it relates and (if different) the
person from whom the restricted person obtained it,
(e)
for the purposes of an inquiry with a view to the taking of any criminal
10
proceedings or for the purposes of any such proceedings,
(f)
where the disclosure is required by or by virtue of any provision made
by or under this Act or any other enactment or other rule of law, or
(g)
to such persons (other than approved regulators) who exercise
regulatory functions as may be prescribed by order made by the Lord
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Chancellor, for such purposes as may be so prescribed.
(4)
Subsections (2) and (3) are subject to subsection (5).
(5)
The Lord Chancellor may by order prevent the disclosure of restricted
information by virtue of subsection (2) or (3) in such circumstances, or for such
purposes, as may be prescribed in the order.
20
169
Disclosure of information to the Board
(1)
Information which is held by or on behalf of a permitted person (whether
obtained before or after this section comes into force) may be disclosed to the
Board for the purposes of enabling or assisting the Board to exercise its
functions (whether as an approved regulator, a licensing authority or
25
otherwise).
(2)
A disclosure under this section is not to be taken to breach any restriction on
the disclosure of information (however imposed).
(3)
But nothing in this section authorises the making of a disclosure—
(a)
which contravenes the Data Protection Act 1998 (c. 29), or
30
(b)
which is prohibited by Part 1 of the Regulation of Investigatory Powers
Act 2000 (c. 23).
(4)
This section does not affect a power to disclose which exists apart from this
section.
(5)
The following are permitted persons—
35
(a)
a chief officer of police of a police force in England and Wales;
(b)
a chief constable of a police force in Scotland;
(c)
the Chief Constable of the Police Service of Northern Ireland;
(d)
the Director General of the Serious Organised Crime Agency;
(e)
the Commissioners for Her Majesty’s Revenue and Customs;
40
(f)
the Financial Services Authority.
(6)
The Lord Chancellor may by order designate as permitted persons other
persons who exercise functions which the Lord Chancellor considers are of a
public nature (including a person discharging regulatory functions in relation
to any description of activities).
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Legal Services Bill [HL]
Part 7 — Further provisions relating to the Board and the OLC
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(7)
Information must not be disclosed under this section on behalf of the
Commissioners for Her Majesty’s Revenue and Customs unless the
Commissioners authorise the disclosure.
(8)
The power to authorise a disclosure under subsection (7) may be delegated
(either generally or for a specific purpose) to an officer of Revenue and
5
Customs.
170
Data protection
In section 31 of the Data Protection Act 1998 (c. 29) (regulatory activity), after
subsection (4A) insert—
“(4B)
Personal data processed for the purposes of discharging any function
10
of the Legal Services Board are exempt from the subject information
provisions in any case to the extent to which the application of those
provisions to the data would be likely to prejudice the proper discharge
of the function.”
171
Use of information
15
Information obtained by the Board (whether in its capacity as an approved
regulator or licensing authority or otherwise) may be used by the Board for the
purposes of, or for any purpose connected with or incidental to, the exercise of
its functions.
Payments by Lord Chancellor
20
172
Funding
(1)
The Lord Chancellor may—
(a)
pay to the Board such sums as the Lord Chancellor may determine as
appropriate for the purpose of meeting the expenditure of the Board
incurred under or for the purposes of this Act or any other enactment
25
(including any expenditure incurred by it in its capacity as an approved
regulator or its capacity as a licensing authority), and
(b)
pay to the OLC such sums as the Lord Chancellor may determine as
appropriate for the purposes of meeting the expenditure of the OLC
incurred under or for the purposes of this Act.
30
(2)
The Lord Chancellor may—
(a)
determine the manner in which and times at which the sums
mentioned in subsection (1) are to be paid, and
(b)
impose conditions on the payment of those sums.
The levy
35
173
The levy
(1)
The Board must make rules providing for the imposition of a levy on leviable
bodies for the purpose of raising an amount corresponding to the aggregate
of—
(a)
the leviable Board expenditure,
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Legal Services Bill [HL]
Part 7 — Further provisions relating to the Board and the OLC
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(b)
the leviable OLC expenditure, and
(c)
the leviable Lord Chancellor expenditure.
(2)
A levy imposed under this section is payable to the Board.
(3)
Before making rules under this section, the Board must satisfy itself that the
apportionment of the levy as between different leviable bodies will be in
5
accordance with fair principles.
(4)
The Board may not make rules under this section except with the consent of the
Lord Chancellor.
(5)
“Leviable body” means—
(a)
an approved regulator,
10
(b)
the person designated under section 5(1) of the Compensation Act 2006
(c. 29) (the Regulator in relation to claims management services), or
(c)
any other person prescribed by the Lord Chancellor by order.
(6)
The “leviable Board expenditure” means the difference between—
(a)
the expenditure of the Board incurred under or for the purposes of this
15
Act or any other enactment (including any expenditure incurred in
connection with its establishment and any expenditure incurred by it in
its capacity as an approved regulator or its capacity as a licensing
authority), and
(b)
the aggregate of the amounts which the Board pays into the
20
Consolidated Fund under section 175(1)(a), (c) to (e) and (k) to (m) or
by virtue of regulations under paragraph 7(g) of the Schedule to the
Compensation Act 2006.
(7)
The “leviable OLC expenditure” means the difference between—
(a)
the expenditure of the OLC incurred under or for the purposes of this
25
Act (including any expenditure incurred in connection with its
establishment), and
(b)
the aggregate of the amounts which the OLC pays into the
Consolidated Fund under section 175(1)(g), (h) or (n).
(8)
But subsection (7)(a) does not include such proportion of the expenditure of the
30
OLC incurred under or for the purposes of this Act as may reasonably be
attributed to the exercise of its functions under sections 164 to 166.
(9)
The “leviable Lord Chancellor expenditure” means any expenditure incurred
by the Lord Chancellor in connection with the establishment of the Board or
the OLC (including expenditure incurred under or for the purposes of
35
paragraph 10 of Schedule 22 (Interim Chief Executive of the OLC)).
(10)
But the leviable Lord Chancellor expenditure does not include any
expenditure under section 172 (funding of Board and OLC).
(11)
In subsection (5) the reference to “an approved regulator” does not include the
Board where it is designated as an approved regulator under section 62.
40
174
The levy: supplementary provisions
(1)
In this section—
“leviable body” has the meaning given by section 173;
“the levy” means the levy payable by virtue of that section;

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“the levy rules” means the rules made in accordance with that section.
(2)
The levy is to be payable at such rate and at such times as may be specified in
the levy rules.
(3)
The provision made in the levy rules for determining the amount of the levy
payable in respect of a particular period—
5
(a)
may require account to be taken of estimated as well as actual
expenditure and receipts, and
(b)
must require the Board to obtain the Lord Chancellor’s agreement to
the amount payable in respect of a particular period.
(4)
The levy rules may provide for different parts of the levy to be payable at
10
different rates.
(5)
Any amount which is owed to the Board in accordance with the levy rules may
be recovered as a debt due to the Board.
(6)
The levy rules must require the Board—
(a)
to calculate the amount of the levy payable by each leviable body,
15
(b)
to notify each leviable body of its liability to pay an amount of levy and
the time or times at which it becomes payable.
(7)
Without prejudice to subsections (2) to (6), the levy rules may—
(a)
make provision about the collection and recovery of the levy;
(b)
make provision about the circumstances in which any amount of the
20
levy payable may be waived;
(c)
provide that if the whole or any part of an amount of the levy payable
under the levy rules is not paid by the time when it is required to be
paid under the rules, the unpaid balance from time to time carries
interest at the rate determined by or in accordance with the levy rules.
25
Payments into the Consolidated Fund
175
Amounts payable into the Consolidated Fund
(1)
The following must be paid into the Consolidated Fund—
(a)
any application fee received by the Board;
(b)
any sum received by the Board under sections 37 to 40 (financial
30
penalties and interest);
(c)
amounts paid to the Board under section 49(10) or 50(5) (charges for
providing draft and final policy statements);
(d)
any sums received by the Board in its capacity as an approved regulator
by virtue of rules within section 64(2)(f) (practising fees etc);
35
(e)
any sums received by the Board in its capacity as a licensing authority
by virtue of its licensing rules within paragraph 1, 4, 6, 7 or 21 of
Schedule 11 or by virtue of paragraph 17 or 18 of Schedule 14;
(f)
any sums received by the Board in its capacity as a licensing authority
under sections 95 to 97 (financial penalties and interest);
40
(g)
any charges received by the OLC by virtue of rules under section 136
(charges payable by respondents), together with any interest payable in
accordance with those rules;
(h)
any amount payable to the OLC in accordance with scheme rules
within subsection (3)(i) of section 133 (costs of OLC payable by the
45

Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc
93

complainant or the respondent in relation to a complaint), together
with any interest payable on such an amount under subsection (6) of
that section;
(i)
any amount payable to the OLC by virtue of standard terms within
section 166(8);
5
(j)
any sum received by the Board in accordance with rules under section
173 (the levy);
(k)
amounts paid to the Board under section 162(4)(c) (charges for
providing copies of guidance);
(l)
any amount payable to the Board under arrangements entered under
10
section 163 (voluntary arrangements);
(m)
amounts paid to the Board under subsection (8) of section 205 (charges
for providing copies of rules and draft rules);
(n)
amounts paid to the OLC under that subsection.
(2)
In this section “application fee” means a fee within—
15
(a)
paragraph 3(3)(d) of Schedule 4 (application fees in respect of
designation as approved regulator);
(b)
section 45(3)(b) (application fees in respect of cancellation of
designation as approved regulator);
(c)
paragraph 1(4)(d) of Schedule 10 (application fees in respect of
20
designation as licensing authority);
(d)
section 76(3)(b) (application fees in respect of cancellation of
designation as licensing authority);
(e)
paragraph 3(4)(c) of Schedule 18 (application fees in respect of
designation as qualifying regulator for the purposes of Part 5 of the
25
Immigration and Asylum Act 1999 (c. 33)).
Part 8
Miscellaneous provisions about lawyers etc
Duties of regulated persons
176
Duties of regulated persons
30
(1)
A person who is a regulated person in relation to an approved regulator has a
duty to comply with the regulatory arrangements of the approved regulator as
they apply to that person.
(2)
A person is a regulated person in relation to an approved regulator if the
person—
35
(a)
is authorised by the approved regulator to carry on an activity which is
a reserved legal activity, or
(b)
is not so authorised, but is a manager or employee of a person (other
than an individual) who is so authorised.
(3)
This section applies in relation to the Board in its capacity as a licensing
40
authority and its licensing rules, as it applies in relation to an approved
regulator and its regulatory arrangements.