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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 3 — Exempt persons

124

 

     (10)  

The person is exempt if the person is employed merely to engross the

instrument or application.

     (11)  

The person is exempt if the person is an individual who carries on the

activity otherwise than for, or in expectation of, any fee, gain or reward.

     (12)  

The person is exempt if—

5

(a)   

the person is a person qualified to practise as a solicitor in Scotland

in accordance with section 4 of the Solicitors (Scotland) Act 1980

(c. 46), and

(b)   

the reserved instrument activities fall within paragraph 5(1)(c) of

Schedule 2 (preparation of certain instruments relating to real or

10

personal property or legal proceedings).

Probate activities

4     (1)  

This paragraph applies to determine whether a person is an exempt person

for the purpose of carrying on any activity which constitutes probate

activities (subject to paragraph 7).

15

      (2)  

The person (“E”) is an exempt person if—

(a)   

E is an individual,

(b)   

E provides the probate activities at the direction and under the

supervision of another individual (“P”),

(c)   

when E does so, P and E are connected, and

20

(d)   

P is entitled to carry on the activity, otherwise than by virtue of sub-

paragraph (4).

      (3)  

For the purposes of sub-paragraph (2), P and E are connected if—

(a)   

P is E’s employer,

(b)   

P is a partner in E’s employer,

25

(c)   

P is a fellow employee of E,

(d)   

P is a manager or employee of a body corporate recognised under

section 9 of the Administration of Justice Act 1985 (c. 61) and E is also

such a manager or employee, or

(e)   

the following conditions are satisfied—

30

(i)   

P is a manager or employee of a licensed body,

(ii)   

E is also such a manager or employee, and

(iii)   

the licensed body is authorised by its licence under Part 5 to

carry on the activity.

      (4)  

The person is exempt if the person is an individual who carries on the

35

activity otherwise than for, or in expectation of, any fee, gain or reward.

Notarial activities

5     (1)  

This paragraph applies to determine whether a person is an exempt person

for the purpose of carrying on any activity which constitutes notarial

activities (subject to paragraph 7).

40

      (2)  

The person is exempt if the person is not an authorised person in relation to

that activity under this Act, but is authorised to carry on that activity by or

by virtue of any other enactment.

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 1 — Existing regulators

125

 

      (3)  

The person is exempt if the person is an individual who carries on the

notarial activities otherwise than for or in expectation of a fee, gain or

reward.

Administration of oaths

6     (1)  

This paragraph applies to determine whether a person is an exempt person

5

for the purpose of carrying on any activity which constitutes the

administration of oaths (subject to paragraph 7).

      (2)  

The person is exempt if the person is not an authorised person in relation to

that activity under this Act, but is authorised to carry on that activity by or

by virtue of any other enactment.

10

      (3)  

The person is exempt if the person has a commission under section 1(1) of

the Commissioners for Oaths Act 1889 (c. 10).

European lawyers

7          

A European lawyer (within the meaning of the European Communities

(Services of Lawyers) Order 1978 (S.I. 1978/1910)) is an exempt person for

15

the purposes of carrying on an activity which is a reserved legal activity and

which the European lawyer is entitled to carry on by virtue of that order.

Further exempt persons

8     (1)  

The Secretary of State may, by order, amend this Schedule so as to provide—

(a)   

for persons to be exempt persons in relation to any activity which is

20

a reserved legal activity (including any activity which is a reserved

legal activity by virtue of an order under section 23 (extension of

reserved legal activities)),

(b)   

for persons to cease to be such persons, or

(c)   

for the amendment of any provision made in respect of an exempt

25

person.

      (2)  

The Secretary of State may make an order under sub-paragraph (1) only on

the recommendation of the Board.

Schedule 4

Section 19

 

Approved regulators

30

Part 1

Existing regulators

1     (1)  

Each body listed in the first column of the Table in this paragraph is an

approved regulator.

      (2)  

Each body so listed is an approved regulator in relation to the reserved legal

35

activities listed in relation to it in the second column of the Table.

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 1 — Existing regulators

126

 
 

Approved regulator

Reserved legal activities

 
 

The Law Society

The exercise of a right of audience.

 
  

The conduct of litigation.

 
  

Reserved instrument activities.

 
  

Probate activities.

 

5

  

The administration of oaths.

 
 

The General Council of the Bar

The exercise of a right of audience.

 
  

The conduct of litigation.

 
  

Reserved instrument activities.

 
  

Probate activities.

 

10

  

The administration of oaths.

 
 

The Master of the Faculties

Reserved instrument activities.

 
  

Probate activities.

 
  

Notarial activities.

 
  

The administration of oaths.

 

15

 

The Institute of Legal Executives

The exercise of a right of audience.

 
  

The administration of oaths.

 
 

The Council for Licensed

Reserved instrument activities.

 
 

Conveyancers

The administration of oaths.

 
 

The Chartered Institute of

The exercise of a right of audience.

 

20

 

Patent Attorneys

The conduct of litigation.

 
  

Reserved instrument activities.

 
  

The administration of oaths.

 
 

The Institute of Trade Mark

The exercise of a right of audience.

 
 

Attorneys

The conduct of litigation.

 

25

  

Reserved instrument activities.

 
  

The administration of oaths.

 

2     (1)  

The regulatory arrangements of a listed body, as they have effect

immediately before paragraph 1 comes into force, are to be treated as having

been approved by the Board for the purposes of this Act at the time that

30

paragraph comes into force.

      (2)  

“Listed body” means a body listed in the first column of the Table in

paragraph 1 as that Table has effect at the time that paragraph comes into

force.

      (3)  

Sub-paragraph (1) is without prejudice to the Board’s power to give

35

directions under section 31 (powers to direct an approved regulator to take

steps in certain circumstances, including steps to amend its regulatory

arrangements).

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 2 — Designation of bodies by order

127

 

Part 2

Designation of bodies by order

Application to the Board

3     (1)  

This paragraph applies where a body wishes to authorise persons to carry

on one or more activities which constitute one or more reserved legal

5

activities.

      (2)  

The body may apply to the Board for the Board—

(a)   

to recommend that an order be made by the Secretary of State

designating the body as an approved regulator in relation to the

reserved legal activity or activities in question, and

10

(b)   

to approve what the body proposes as its regulatory arrangements if

such an order is made (“the proposed regulatory arrangements”).

      (3)  

An application under this paragraph must be made in such form and

manner as the Board may specify in rules and must be accompanied by—

(a)   

a statement of the reserved legal activity or activities to which it

15

relates,

(b)   

details of the applicant’s proposed regulatory arrangements,

(c)   

such explanatory material (including material about the applicant’s

constitution and activities) as the applicant considers is likely to be

needed for the purposes of this Part of this Schedule, and

20

(d)   

the prescribed fee.

      (4)  

The prescribed fee is the fee specified in, or determined in accordance with,

rules made by the Board with the consent of the Secretary of State.

      (5)  

The proposed regulatory arrangements must, in particular, include—

(a)   

details of the authority which the applicant proposes to give persons

25

to carry on activities which are reserved legal activities and of the

nature of the persons to whom the authority is to be given,

(b)   

regulations (however they may be described) as to the education and

training which persons must receive, and any other requirements

which must be met by or in respect of them, in order for them to be

30

authorised, and

(c)   

rules (however they may be described) as to the conduct required of

persons in carrying on any activity by virtue of the authority.

      (6)  

An applicant may, at any time, withdraw the application by giving notice to

that effect to the Board.

35

Dismissal of application

4     (1)  

The Board may refuse to consider, or to continue its consideration of, an

application.

      (2)  

The Board must make rules about the procedures and criteria that it will

apply when determining whether to refuse to consider, or to continue its

40

consideration of, an application under sub-paragraph (1).

      (3)  

Where the Board decides to refuse to consider, or to continue its

consideration of, an application it must give the applicant notice of that

decision and of its reasons for it.

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 2 — Designation of bodies by order

128

 

      (4)  

The Board must publish a notice given under sub-paragraph (3).

Board’s duty to seek advice

5     (1)  

The Board must give each of the persons listed in sub-paragraph (2)—

(a)   

a copy of the application and accompanying material, and

(b)   

a notice specifying a period within which any advice given under

5

paragraphs 6 to 8 must be given.

      (2)  

Those persons are—

(a)   

the OFT,

(b)   

the Consumer Panel,

(c)   

the Lord Chief Justice, and

10

(d)   

such other persons as the Board considers it reasonable to consult

regarding the application.

      (3)  

In this Part of this Schedule, in relation to an application, “selected

consultee” means a person within sub-paragraph (2)(d).

Advice of Office of Fair Trading

15

6     (1)  

The OFT must give the Board such advice as the OFT thinks fit regarding

whether the application should be granted.

      (2)  

In deciding what advice to give, the OFT must, in particular, have regard to

whether making an order under paragraph 17 in accordance with the

recommendation applied for would (or would be likely to) prevent, restrict

20

or distort competition within the market for reserved legal services to any

significant extent.

Advice of the Consumer Panel

7     (1)  

The Consumer Panel must give the Board such advice as the Consumer

Panel thinks fit regarding whether the application should be granted.

25

      (2)  

In deciding what advice to give, the Consumer Panel must, in particular,

have regard to the likely impact on consumers of the making of an order

under paragraph 17 in accordance with the recommendation applied for.

Advice of selected consultees

8          

A selected consultee may give the Board such advice as the selected

30

consultee thinks fit in respect of the application.

Advice of the Lord Chief Justice

9     (1)  

The Board must give the Lord Chief Justice—

(a)   

a copy of any advice duly given under paragraphs 6 to 8, and

(b)   

a notice specifying a period within which any advice under this

35

paragraph must be given.

      (2)  

The Lord Chief Justice must then give such advice to the Board as the Lord

Chief Justice thinks fit regarding whether the application should be granted.

      (3)  

In deciding what advice to give, the Lord Chief Justice must, in particular,

have regard to the likely impact on the courts in England and Wales of the

40

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 2 — Designation of bodies by order

129

 

making of an order under paragraph 17 in accordance with the

recommendation applied for.

Information obtained by consultees

10         

A person (“the consultee”) to whom a copy of the application is given under

paragraph 5(1) may, for the purposes of giving advice under paragraphs 6

5

to 9, request the applicant or any other person to provide the consultee with

such additional information as may be specified by the consultee.

Representations by applicant

11    (1)  

The Board must give the applicant a copy of any advice duly given under

paragraphs 6 to 9.

10

      (2)  

The applicant may make to the Board—

(a)   

written representations, and

(b)   

if the Board authorises it to do so, oral representations,

           

about the advice.

      (3)  

The Board must make rules governing the making of oral and written

15

representations.

      (4)  

Representations under this paragraph must be made within—

(a)   

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

the advice is given to the applicant, or

(b)   

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

20

      (5)  

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

those representations.

      (6)  

Before preparing that report, the Board must—

(a)   

give the applicant a reasonable opportunity to comment on a draft of

the report, and

25

(b)   

have regard to any comments duly made.

Publication of advice and representations etc

12    (1)  

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

which representations under paragraph 11 may be made, publish—

(a)   

any advice duly given under paragraphs 6 to 9, and

30

(b)   

any written representations duly made under paragraph 11 and the

report (if any) prepared under that paragraph.

      (2)  

Nothing in sub-paragraph (1) operates—

(a)   

to prevent a person who gives advice under paragraphs 6 to 9 from

publishing that advice, or

35

(b)   

to prevent a person who makes representations under paragraph 11

from publishing those representations.

      (3)  

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

sub-paragraph (1) or otherwise) must, so far as practicable, exclude any

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

40

publication of which, in the opinion of the publisher, would or might

seriously and prejudicially affect the interests of that individual.

 

 

Legal Services Bill [HL]
Schedule 4 — Approved regulators
Part 2 — Designation of bodies by order

130

 

Rules governing decisions by the Board

13    (1)  

The Board must make rules specifying how it will determine applications.

      (2)  

Rules under sub-paragraph (1) must, in particular, provide that the Board

may grant an application in relation to a particular reserved legal activity

only if it is satisfied—

5

(a)   

that, if an order were to be made under paragraph 17 designating the

body in relation to that activity, the applicant would have

appropriate internal governance arrangements in place at the time

the order takes effect,

(b)   

that, if such an order were to be made, the applicant would be

10

competent, and have sufficient resources, to perform the role of

approved regulator in relation to the reserved legal activity at that

time,

(c)   

that the applicant’s proposed regulatory arrangements make

appropriate provision,

15

(d)   

that the applicant’s proposed regulatory arrangements comply with

the requirement imposed by sections 51 and 53 (resolution of

regulatory conflict), and

(e)   

that those arrangements comply with the requirements imposed by

sections 109 and 142 (requirements imposed in relation to the

20

handling of complaints).

      (3)  

The rules made for the purposes of sub-paragraph (2)(a) must in particular

require the Board to be satisfied—

(a)   

that the exercise of the applicant’s regulatory functions would not be

prejudiced by any of its representative functions, and

25

(b)   

that decisions relating to the exercise of its regulatory functions

would so far as reasonably practicable be taken independently from

decisions relating to the exercise of its representative functions.

Determination of applications

14    (1)  

After considering—

30

(a)   

the application and accompanying material,

(b)   

any other information provided by the applicant,

(c)   

any advice duly given under paragraphs 6 to 9,

(d)   

any representations duly made under paragraph 11, and

(e)   

any other information which the Board considers relevant to the

35

application,

           

the Board must decide whether to grant the application.

      (2)  

Where the application relates to more than one reserved legal activity, the

Board may grant the application in relation to all or any of them.

      (3)  

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

40

notice”).

      (4)  

Where the Board decides to refuse the application (in whole or in part), the

decision notice must specify the reasons for that decision.

      (5)  

The Board must publish the decision notice.

 

 

 
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