House of Commons portcullis
House of Commons
Session 2009 - 10
Publications on the internet
Public Bill Committee Debates



The Committee consisted of the following Members:

Chairman: Ann Winterton
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 Government’s 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 Executives—ILEX—may 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 instrument’s 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 one—not the first one—flows 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 today’s 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.
 
Contents

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index


©Parliamentary copyright 2009
Prepared 2 December 2009