The
Committee consisted of the following
Members:
Bellingham,
Mr. Henry
(North-West Norfolk)
(Con)
Brake,
Tom
(Carshalton and Wallington)
(LD)
Cohen,
Harry
(Leyton and Wanstead)
(Lab)
Crausby,
Mr. David
(Bolton, North-East)
(Lab)
Curry,
Mr. David
(Skipton and Ripon)
(Con)
Dorrell,
Mr. Stephen
(Charnwood)
(Con)
Flint,
Caroline
(Don Valley)
(Lab)
Griffiths,
Nigel
(Edinburgh, South)
(Lab)
Hall,
Mr. Mike
(Weaver Vale)
(Lab)
Horam,
Mr. John
(Orpington)
(Con)
Howarth,
David
(Cambridge)
(LD)
Jones,
Helen
(Vice-Chamberlain of Her Majesty's
Household)
McGuire,
Mrs. Anne
(Stirling)
(Lab)
Morgan,
Julie
(Cardiff, North)
(Lab)
Prentice,
Bridget
(Parliamentary Under-Secretary of State for
Justice)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Mick Hillyard, Committee
Clerk
attended the
Committee
Fifth
Delegated Legislation
Committee
Tuesday
1 December
2009
[Ann
Winterton in the
Chair]
Draft
Legal Services Act 2007 (Functions of an Approved Regulator) Order
2009
4.30
pm
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): I beg to
move,
That
the Committee has considered the draft Legal Services Act 2007
(Functions of an Approved Regulator) Order
2009.
The
Chairman: With this it will be convenient to consider the
draft Legal Services Act 2007 (Consequential Amendments) Order
2009.
Bridget
Prentice: It is, as always, a pleasure to serve under you,
Lady Winterton.
First, I will
put some context around why the two orders are being taken together.
Members of the Committee who have followed the reform of legal services
regulation will know that it has long been the Governments
intention to see the new regime go live at the beginning of next year.
The sixth commencement order for the 2007 Act, which we intend to bring
into force in January, will see the Legal Services Board assume its
full regulatory powers and approved regulators authorising individuals
and bodies to carry on reserved legal activities. Provisions relating
to the Office for Legal Complaints and alternative business structures
will commence at a later
date.
The
Act contains provisions needed for the new regulatory regime to be
effective, such as the repeal of the current mechanisms for authorising
legal professionals; transitional arrangements for those currently
authorised; and consequential amendments to primary legislation, which
ensures that references in primary legislation to the authorisation of
legal professionals takes account of the new regime. The Act also
provides powers to make subsequent amendments to primary and secondary
legislation to accommodate the changes being brought about by the Act.
The two orders use those powers to amend existing legislation so that
it will be compatible with the changes being commenced in the sixth
commencement order.
I will deal
first with the consequential amendments order, which is made
principally under section 208(2) and (3) of the 2007 Act. Section
208(2) allows the Lord Chancellor to make any supplementary,
incidental, consequential or transitional provision necessary to give
full effect to the Act. Section 208(3) allows him to amend, repeal or
revoke the existing legislation as necessary to give effect to the
Act.
A key element
of the new regulatory regime is the requirement for persons to be
authorised by approved regulators if they are to carry on reserved
legal activities. That will replace a number of existing provisions
that allow persons to carry on legal activities by virtue of their
professional titles or by definitions such as authorised
advocates and legal representatives.
Schedule 21 to
the 2007 Act amends references in primary legislation so that they
refer to the new authorisation regime when it commences early next
year. However, schedule 21 does not include changes needed to secondary
legislation, such as references to authorised advocates
and appropriate officers in the Coroners Rules 1984 and
the definitions of legal representative and
professional legal adviser in the Family Proceedings
Rules 1991. The order amends such references in secondary legislation
to ensure that they refer to the authorisation regime established under
the 2007 Act.
The order
similarly amends references to legal representative in
the Court of Protection Rules 2007 and the Mental Health Review
Tribunal for Wales Rules 2008. As those rules were made after the
session in which the 2007 Act was passed, the amendment could not be
made using section 208 powers and had to be made instead using the
powers in the original enabling Acts for those
rules.
The
order also updates the definition of qualified lawyer,
specifically in relation to compromise agreements. That will ensure
that Fellows of the Institute of Legal
ExecutivesILEXmay continue to advise on compromise
agreements if they become managers of legal disciplinary practices,
which is possible given the changes that we made to the regulation of
solicitors practices by the 2007 Act in March this
year.
The
order also makes minor consequential and technical amendments to
primary and secondary intellectual property legislation, when the
responsibility for the registers of patent attorneys and trade mark
attorneys passes from the Intellectual Property Office to the Chartered
Institute of Patent Attorneys and the Institute of Trade Mark
Attorneys, respectively. For example, the term agent
will be replaced by attorney, and
individual will be replaced by person,
in recognition of the fact that entities, as well as individuals, can
apply for registration.
Finally, the
order amends several outdated uses of the terms
taxation, taxing officer and
taxed in the Charities Act 1993. The Legal Services Act
replaces most outdated references to taxation in primary legislation,
particularly the Solicitors Act 1974, with more modern terminology
about assessment, but no provision was made for the references in the
Charities Act, and it has therefore not been possible to commence
related amendments to other legislation. The order amends the Charities
Act and other related amendments will now be
commenced.
I
know that hon. Members will be keen to know what consultation has taken
place. As the order amends a range of existing legislation, we
consulted other Departments and stakeholders such as the Law Society
and other professional bodies at an early stage and gained their
approval. The Lord Chief Justice, the Judicial Appointments Commission
and the Administrative Justice and Tribunals Council also gave their
approval to the amendments.
The Legal
Services Act 2007 (Functions of an Approved Regulator) Order 2009 is
also necessary as a consequence of the changes that will be introduced
with the sixth commencement order. It amends an inadvertent drafting
error in the 2007 Act, which, if left uncorrected, would result in the
Institute of Trade Mark Attorneys being unable to regulate trade mark
attorney work undertaken outside the UK, when it becomes an approved
regulator
in the next few months. Correcting the error will ensure that the scope
of regulation applying to trade mark attorneys mirrors the scope of
regulation applying to patent
attorneys.
New
section 83A of the Trade Marks Act 1994, inserted by section 184 of the
2007 Act, replicates a drafting discrepancy between two statutory
instruments that govern the registration of patent attorneys and trade
mark attorneys. Unlike the definition in the instrument relating to
patent attorneys, the one relating to trade mark attorney work does not
include the words or elsewhere. The result of that is
that the Institute of Trade Mark Attorneys would not be able to
regulate trade mark attorney work undertaken outside the UK, whereas
the Chartered Institute of Patent Attorneys would be able to regulate
patent work undertaken outside the UK. It was not intended that the
2007 Act should make that distinction, and the order simply corrects
that oversight and ensures parity between the two forms of
work.
The
amendment is made under section 69 of the Legal Services Act 2007,
which provides for the Lord Chancellor, by order, to modify or make
other provision relating to the functions of an approved regulator or
any other body. As required by section 69, the order is being made on
the recommendation of the Legal Services Board. The board is obliged to
consult whenever it recommends a statutory instrument to the Lord
Chancellor under the relevant provisions; a consultation paper
therefore went with the draft order and draft impact assessment to
consumer organisations, regulatory bodies, other professional
representatives and other key stakeholders during the summer. Six
responses were received, which either made no comment on or approved
the proposed amendment.
The orders
are required to reflect the changes introduced by the 2007 Act, and to
ensure consistency of terminology across different pieces of
legislation. It is important that they are made to coincide with the
sixth commencement order, so that references to the new regulatory
regime are consistent on commencement in January. It is also important
to note that the orders do not expand the scope of existing policy, or
extend the categories of person who can carry out reserved legal
activities.
4.39
pm
Mr.
Henry Bellingham (North-West Norfolk) (Con): It is a great
pleasure to serve under your chairmanship, Lady Winterton. I thank the
Minister for her explanation, and declare an interest as a former
barrister, which is set out in the Register of Members
Financial Interests.
The draft
Legal Services Act 2007 (Functions of an Approved Regulator) Order 2009
is very simple, and would amend an inadvertent drafting error in the
original statutory instrument, as the Minister explained. Obviously,
the Institute of Trade Mark Attorneys needs to be able to
regulate work done by its members overseas. We certainly understand and
accept that. However, the original statutory instrument, which affects
trade mark attorneys, was incorrectly drafted, whereas the sister
statutory instrument, which affects patent attorneys, was correctly
drafted. That was not spotted at the time and is a historical matter,
going back a fair while. Both measures were then incorporated in the
Legal Services Act and, again, the mistake was not spotted.
I should be
grateful if the Minister let us know why that was allowed to happen. Of
course we support measures to repair drafting damage, but there were
two opportunities to rectify the problem and it seems that neither was
taken. Can she explain what went wrong and perhaps give us some
indication that if lessons can be learned, they certainly will
be?
The
purpose of the consequential amendments statutory instrument, as the
Minister pointed out, is to amend certain terminology. Obviously, the
essence of the Legal Services Act is to make the whole legal process
more consumer friendly and to put the interests of consumers first. In
respect of taxation of costs, many laymen would not understand what
taxation meant in this context, so changing the word
taxation to assessment makes sense and
we supported that at the time. Schedule 16 to the Legal Services Act
amends the relevant legislation, the Solicitors Act 1974. The statutory
instrument simply extends those changes in terminology to other
legislation that was either in place before or was coming into place at
the time of the Legal Services Act. We certainly support
that.
I
also support the statutory instruments amendment of the
definition of qualified lawyer in secondary
legislation, which removes the requirement to be employed by a
solicitors practice, because that will enable members of ILEX who are
managers of legal disciplinary practices to continue to advise on
compromise agreements. Will the Minister explain a little more about
compromise agreements? I am not clear on whether the issue of
compromise agreements crops up in the Mental Health Review Tribunal for
Wales Rules 2008, the Judicial Appointments Order 2008, the Mental
Health Acts or the Tribunals, Courts and Enforcement Act 2007. Perhaps
she will say more about what those compromise agreements
are.
We
certainly support what the statutory instrument does. This
onenot the first oneflows naturally from the Legal
Services Act, which the Conservatives supported, in principle. We had
some concerns about the detail of the legislation, but none of the
concerns that we had applies to todays statutory instruments.
With those few comments, I hope that the Minister will be able to
answer what I have said, but also bear it in mind that the
Conservatives support the work that she is doing to ensure that the
Legal Services Act will be made as effective as possible, so that we
have an updated legal services
system.
4.43
pm
Tom
Brake (Carshalton and Wallington) (LD): It is a pleasure
to serve under your chairmanship, Lady Winterton.
The Liberal
Democrats have no concerns about the orders. We do have some
reservations about the system that has been put in place by the Legal
Services Act 2007, and I am sure that, had my hon. Friend the Member
for Cambridge been in his place, he would have been able to elaborate
on that at some length. However, that is outside the scope of these
orders. [Interruption.] Indeed, Lady Winterton, I was going to
say that he would, in fact, not have been able to elaborate on it at
length, because you would not have allowed that as it would have been
outside the scope of the orders. We have no problems with the orders
that the Minister has presented to us today and we understand the
reasons why the changes need to be made.
4.44
pm
Bridget
Prentice: First, let me thank both Opposition spokesmen
for their support, not only for the orders, but for the Legal Services
Act in general, albeit with the reservations that the Liberal Democrats
have about some areas of it. The reason why the mistake was made in the
first place, as the hon. Member for North-West Norfolk rightly said,
was that the error went back further than that Act. Previous Acts had
the error in them and it just kept being duplicated as further
legislation was made. It was the sharp eyes of present parliamentary
counsel
Mr.
Bellingham: Or
yours.
Bridget
Prentice: I would love to take the credit, but I think
that would be going a tad too far. It was because of the sharp eyes of
parliamentary counsel and officials that it was noticed. Hopefully,
from now on, everything will be in its right place.
The hon.
Member for North-West Norfolk asked about compromise agreements. If I
may, I will write to him about that to set out in more detail how they
work. As great as it is to receive information at the last minute, I do
not think that what I have received is sufficient for his question, so
I would be grateful if he and the Committee would allow me to write to
them about that
aspect.
Mr.
Bellingham: Thank
you.
Question
put and agreed
to.
Draft
Legal Services Act 2007 (Consequential Amendments) Order
2009
Resolved,
That
the Committee has considered the draft Legal Services Act 2007
(Consequential Amendments) Order 2009.(Bridget
Prentice.)
4.46
pm
Committee
rose.