Legal Services Bill [HL]

House of Lords

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Schedule 17 — Licensed conveyancing
283

(ii)
in any other case to a manager or former
manager of the recognised body.”
     (16)
In paragraph 14 (examination of files)—
(a)
in sub-paragraph (1)—
(i)
omit “or complaint” (in each place),
5
(ii)
omit “or (b)”,
(iii)
after “(a)(ii)” insert “or (aa)(ii)”,
(iv)
after “recognised body” insert “or manager or employee”,
and
(v)
for “body’s possession” substitute “in the possession, or
10
under the control, of the body (or, as the case may be,
manager or employee), and
(b)
in sub-paragraph (2)(b)—
(i)
for “and 12” substitute “to 12A”, and
(ii)
after “body” insert “manager or employee”.
15
     (17)
In paragraph 16 (interest on client’s money)—
(a)
in sub-paragraph (1)—
(i)
after “recognised bodies” insert “or managers or employees
of such bodies,”,
(ii)
after “recognised body” insert “, manager or employee”,
20
(iii)
for “it keeps” substitute “it or he keeps”,
(iv)
for “its clients” substitute “clients of the recognised body”,
and
(v)
after “received by it” insert “or him”, and
(b)
in sub-paragraph (2), for “and any of its clients” substitute “, or any
25
manager or employee of such a body, and any of the clients of the
recognised body”.
Courts and Legal Services Act 1990 (c. 41)
28    (1)
Schedule 8 to the Courts and Legal Services Act 1990 (licensed
conveyancers) is amended as follows.
30
      (2)
In paragraph 17 (inadequate professional services: failure to comply with
direction), after sub-paragraph (2) insert—
    “(3)
In relation to proceedings before the Discipline and Appeals
Committee in respect of such a complaint, the Committee may
make such order as they consider fit as to the payment of costs
35
by—
(a)
the Council;
(b)
the licensed conveyancer against whom the complaint was
made;
(c)
if the person on whose complaint the proceedings were
40
brought was heard (in person, or through a representative)
by the Committee in the course of the proceedings, that
person.”
      (3)
Omit paragraph 19(b) (inadequate professional services: costs).

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 1 — Qualifying regulators
284

Schedule 18
Section 178

Immigration advice and immigration services
Part 1
Qualifying regulators
Designation orders
5
1
In this Part of this Schedule “designation order” means an order made under
section 86A(6) of the Immigration and Asylum Act 1999 (c. 33) (designated
qualifying regulators entitled to authorise persons to provide immigration
advice and immigration services).
Application to become a qualifying regulator
10
2     (1)
This paragraph applies where a body wishes to become a qualifying
regulator for the purposes of Part 5 of the Immigration and Asylum Act
1999.
      (2)
A body may apply to the Board for the Board—
(a)
to designate the body as a qualifying regulator for those purposes,
15
and
(b)
to approve what the applicant proposes as its regulatory
arrangements if a designation order is made (“the proposed
regulatory arrangements”).
      (3)
But a body may make an application under this paragraph only if—
20
(a)
it is an approved regulator (other than the Board), or
(b)
it has made an application under Part 2 of Schedule 4 (designation of
approved regulators).
      (4)
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—
25
(a)
details of the applicant’s proposed regulatory arrangements,
(b)
such explanatory material as the applicant considers is likely to be
needed for the purposes of this Part of this Schedule, and
(c)
the prescribed fee.
      (5)
The prescribed fee is the fee prescribed in, or determined in accordance with,
30
rules made by the Board with the consent of the Secretary of State.
      (6)
An applicant may, at any time, withdraw the application by giving notice to
that effect to the Board.
Consultation and representations
3
Paragraphs 4 to 12 of Schedule 4 (consultation requirements etc in relation
35
to applications for designation as approved regulator) apply in relation to an
application under paragraph 2 as they apply in relation to an application
under paragraph 3 of that Schedule, but as if—
(a)
in paragraphs 6(2), 7(2) and 9(3) of that Schedule the references to
making an order under paragraph 17 in accordance with the
40

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 1 — Qualifying regulators
285

recommendation were references to making a designation order in
respect of the applicant, and
(b)
in paragraph 6(2) of that Schedule the reference to the market for
reserved legal services were a reference to the market for
immigration advice and immigration services.
5
Determination of application
4     (1)
The Board must make rules specifying how it will determine applications
under paragraph 2.
      (2)
Rules under sub-paragraph (1) must, in particular, provide that the Board
may grant an application only if it is satisfied—
10
(a)
that, if a designation order were to be made in relation to the
applicant, the applicant would have appropriate internal
governance arrangements in place at the time the order takes effect,
(b)
that, if such an order were made, the applicant would be competent
to perform the role of designated qualifying regulator (within the
15
meaning of section 86A of the Immigration and Asylum Act 1999
(c. 33)) at that time,
(c)
that the arrangements made by the applicant for authorising persons
to provide immigration advice or immigration services provide that
persons may not be so authorised unless they are individuals who
20
are also authorised by the applicant to carry on activities which are
reserved legal activities,
(d)
that the applicant’s proposed regulatory arrangements make
appropriate provision, and
(e)
that the applicant’s proposed regulatory arrangements comply with
25
the requirements imposed by sections 109 and 142 (requirements
imposed in relation to the 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
30
prejudiced by any of its representative functions, and
(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.
5     (1)
After considering—
35
(a)
the application and accompanying material,
(b)
any other information provided by the applicant,
(c)
any advice duly given and representations duly made by virtue of
paragraph 3, and
(d)
any other information which the Board considers relevant to the
40
application,

the Board must decide whether to grant the application.
      (2)
The Board must give notice of its decision to the applicant (“the decision
notice”).
      (3)
Where the Board decides to refuse the application, the decision notice must
45
specify the reasons for that decision.
      (4)
The Board must publish the decision notice.

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 2 — Amendments of the Immigration and Asylum Act 1999 (c. 33)
286

      (5)
Paragraph 15 of Schedule 4 (period within which decision must be made)
applies in relation to a decision notice under this paragraph as it applies in
relation to a decision notice under paragraph 14 of that Schedule.
Effect of application
6     (1)
Where an application is granted under paragraph 5, the decision notice must
5
specify that the applicant is a qualifying regulator for the purposes of Part 5
of the Immigration and Asylum Act 1999 (c. 33).
      (2)
Where an application is granted under paragraph 5, the proposed
regulatory arrangements are at the same time treated as having been
approved by the Board.
10
      (3)
But if the application was made in reliance upon paragraph 2(3)(b), the
applicant’s status as such a qualifying regulator and the approval of its
proposed regulatory arrangements under sub-paragraph (2) are conditional
upon the Secretary of State making an order under Part 2 of Schedule 4
designating the body as an approved regulator in relation to one or more
15
reserved legal activities.
Loss of qualifying regulator status
7     (1)
Where a qualifying regulator—
(a)
ceases to be an approved regulator, or
(b)
ceases to be a designated qualifying regulator within the meaning of
20
section 86A of the Immigration and Asylum Act 1999 by virtue of an
order under subsection (3) or (4) of that section,

it also ceases to be a qualifying regulator.
      (2)
But sub-paragraph (1) is without prejudice to a body’s ability to make a
further application under paragraph 2.
25
Part 2
Amendments of the Immigration and Asylum Act 1999 (c. 33)
8
The Immigration and Asylum Act 1999 is amended in accordance with this
Part of this Schedule.
9
In section 82(1) (interpretation of Part 5), after the definition of “designated
30
professional body” insert—
““designated qualifying regulator” has the meaning given by
section 86A;”.
10
In section 83 (the Immigration Services Commissioner), after subsection (6)
insert—
35
“(6A)
The duties imposed on the Commissioner by subsections (3) and (5)
apply in relation to persons within section 84(2)(ba) only to the
extent that those duties have effect in relation to the Commissioner’s
functions under section 92 or 92A.”
11    (1)
Section 84 (provision of immigration services) is amended as follows.
40
      (2)
In subsection (2)—

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 2 — Amendments of the Immigration and Asylum Act 1999 (c. 33)
287

(a)
after paragraph (b) insert—
“(ba)
a person authorised to provide immigration advice or
immigration services by a designated qualifying
regulator,”, and
(b)
in paragraph (c)(ii) after “(b)” insert “or (ba)”.
5
      (3)
After subsection (3) insert—
“(3A)
A person’s entitlement to provide immigration advice or
immigration services by virtue of subsection (2)(ba)—
(a)
is subject to any limitation on that person’s authorisation
imposed by the regulatory arrangements of the designated
10
qualifying regulator in question, and
(b)
does not extend to the provision of such advice or services by
the person other than in England and Wales (regardless of
whether the persons to whom they are provided are in
England and Wales or elsewhere).
15
(3B)
In subsection (3A) “regulatory arrangements” has the same meaning
as in the Legal Services Act 2007 (see section 20 of that Act).”
12    (1)
Section 86 (designated professional bodies) is amended as follows.
      (2)
Omit subsections (1)(a), (d) and (e) and (4)(b).
      (3)
In subsection (5)(a) omit “England and Wales or”.
20
      (4)
In subsection (6)—
(a)
omit paragraph (a), and
(b)
in paragraph (b) for “it” substitute “the order”.
      (5)
In subsection (8) after “that a body” insert “(other than a body in England
and Wales)”.
25
13
After section 86 insert—
“86A
Designated qualifying regulators
(1)
“Designated qualifying regulator” means a body which is a
qualifying regulator and is listed in subsection (2).
(2)
The listed bodies are—
30
(a)
the Law Society;
(b)
the Institute of Legal Executives;
(c)
the General Council of the Bar.
(3)
The Secretary of State may by order remove a body from the list in
subsection (2) if the Secretary of State considers that the body has
35
failed to provide effective regulation of relevant authorised persons
in their provision of immigration advice or immigration services.
(4)
If a designated qualifying regulator asks the Secretary of State to
amend subsection (2) so as to remove its name, the Secretary of State
may by order do so.
40
(5)
Where, at a time when a body is listed in subsection (2), the body
ceases to be a qualifying regulator by virtue of paragraph 7(1)(a) of
Schedule 18 to the Legal Services Act 2007 (loss of approved

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 2 — Amendments of the Immigration and Asylum Act 1999 (c. 33)
288

regulator status), the Secretary of State must, by order, remove it
from the list.
(6)
If the Secretary of State considers that a body which—
(a)
is a qualifying regulator,
(b)
is not a designated qualifying regulator, and
5
(c)
is capable of providing effective regulation of relevant
authorised persons in their provision of immigration advice
or immigration services,

ought to be designated, the Secretary of State may, by order, amend
the list in subsection (2) to include the name of that body.
10
(7)
If the Secretary of State is proposing to act under subsection (3) or (6),
the Secretary of State must, before doing so, consult the
Commissioner.
(8)
If the Secretary of State is proposing to act under subsection (3), the
Secretary of State must, before doing so, also —
15
(a)
notify the body concerned of the proposal and give it a
reasonable period within which to make representations, and
(b)
consider any representations duly made.
(9)
An order under subsection (3) or (6) requires the approval of the
Lord Chancellor.
20
(10)
If the Legal Services Board considers that a designated qualifying
regulator is failing to provide effective regulation of relevant
authorised persons in their provision of immigration advice or
immigration services, the Legal Services Board must make a report
to this effect to—
25
(a)
the Secretary of State, and
(b)
the Lord Chancellor.
(11)
In this section—
“qualifying regulator” means a body which is a qualifying
regulator for the purposes of this Part of this Act by virtue of
30
Part 1 of Schedule 18 to the Legal Services Act 2007 (approved
regulators approved by the Legal Services Board in relation
to immigration matters);
“relevant authorised persons”, in relation to a designated
qualifying regulator, means persons who are authorised by
35
the designated qualifying regulator to provide immigration
advice or immigration services.”
14    (1)
Section 90 (orders by disciplinary bodies) is amended as follows.
      (2)
In subsection (2), for paragraph (a) substitute—
“(a)
appearing to the Secretary of State to be established for the
40
purpose of hearing disciplinary charges against—
(i)
members of a designated professional body, or
(ii)
persons regulated by designated qualifying
regulators; and”.
      (3)
In subsection (3) after “body” insert “or designated qualifying regulator”.
45
      (4)
In subsection (5)—

Legal Services Bill [HL]
Schedule 18 — Immigration advice and immigration services
Part 3 — Transitional provision
289

(a)
after “means” insert “—
“(a)
”, and
(b)
after “that body” insert “, or
(b)
a person who is authorised by the designated
qualifying regulator concerned to provide
5
immigration advice or immigration services.”
15
In section 166(4) (orders requiring approval by Parliament), after paragraph
(d) insert—
“(da)
section 86A(3),”.
16    (1)
Schedule 5 (the Immigration Services Commissioner) is amended as follows.
10
      (2)
In paragraph 3 (code of standards)—
(a)
after sub-paragraph (3)(a) insert—
“(aa)
a person who is authorised by a
designated qualifying regulator to
provide immigration advice or
15
immigration services;”,
(b)
in sub-paragraph (3)(b) after “paragraph (a)” insert “or (aa)”,
(c)
after sub-paragraph (6)(a) insert—
“(aa)
each of the designated qualifying
regulators;”, and
20
(d)
omit sub-paragraph (6)(b).
      (3)
In paragraph 4 (extension of scope of the code)—
(a)
omit sub-paragraph (2)(b),
(b)
in sub-paragraph (3)(a) omit “England and Wales or”, and
(c)
omit sub-paragraph (4)(a).
25
      (4)
In paragraph 5 (investigation of complaints)—
(a)
in sub-paragraph (3), for the words from “but” to the end
substitute—

“but not if the complaint is excluded by sub-paragraph
(3A).”,
30
(b)
after that sub-paragraph insert—
   “(3A)
A complaint is excluded if—
(a)
it relates to a person who is excluded from the
application of subsection (1) of section 84 by
subsection (6) of that section, or
35
(b)
it relates to a person within section 84(2)(ba).”
Part 3
Transitional provision
The transitional period
17    (1)
In this Part of this Schedule references to “the transitional period” are to the
40
period which—
(a)
begins with the day appointed for the coming into force of section 13
(entitlement to carry on reserved legal activities), and