Legal Services Bill [HL]

House of Lords

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

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74
Automatic cancellation of designation as licensing authority
(1)
This section applies where a body is designated—
(a)
as an approved regulator in relation to a reserved legal activity (“the
activity”), and
(b)
as a licensing authority in relation to the activity.
5
(2)
If the Secretary of State makes an order under section 44 cancelling the body’s
designation as an approved regulator in relation to the activity, the body’s
designation as a licensing authority in relation to the activity is also cancelled.
(3)
The cancellation takes effect at the same time as cancellation of the body’s
designation as an approved regulator.
10
75
Cancellation of designation as licensing authority by order
(1)
The Secretary of State may by order cancel an approved regulator’s
designation as a licensing authority—
(a)
in relation to all the reserved legal activities in relation to which it is
designated, or
15
(b)
in relation to one or more, but not all, of those reserved legal activities,

with effect from a date specified in the order.
(2)
But the Secretary of State may only make an order under subsection (1) in
accordance with a recommendation made by the Board under subsection (3) or
(5).
20
(3)
The Board must recommend that an order is made cancelling an approved
regulator’s designation as a licensing authority in relation to one or more
reserved legal activities, if—
(a)
the approved regulator applies to the Board for such a
recommendation to be made,
25
(b)
the application is made in such form and manner as may be prescribed
by rules made by the Board, and is accompanied by the prescribed fee,
and
(c)
the approved regulator publishes a notice giving details of the
application in accordance with such requirements as may be specified
30
in rules made by the Board.
(4)
In this section “the prescribed fee”, in relation to an application, means the fee
specified in or determined in accordance with rules made by the Board, with
the consent of the Secretary of State.
(5)
The Board may recommend that an order is made cancelling an approved
35
regulator’s designation as a licensing authority in relation to one or more
reserved legal activities if it is satisfied—
(a)
that an act or omission of the licensing authority (or a series of such acts
or omissions) has had, or is likely to have, an adverse impact on the
regulatory objectives, and
40
(b)
that, in all the circumstances of the case, it is appropriate to cancel the
approved regulator’s designation in relation to the activity or activities
in question.
(6)
The Board may not determine that it is appropriate to cancel an approved
regulator’s designation as a licensing authority in relation to an activity or
45

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activities unless it is satisfied that the matter cannot be adequately addressed
by the Board exercising the powers available to it under sections 30 to 42.
(7)
Part 2 of Schedule 10 makes further provision about the making of
recommendations under subsection (5).
(8)
If the Secretary of State decides not to make an order in response to a
5
recommendation made under subsection (3) or (5), the Secretary of State must
give the Board notice of the decision and the reasons for it.
(9)
The Secretary of State must publish a notice given under subsection (8).
76
Cancellation of designation: further provision
(1)
This section applies where an approved regulator (“the former authority”) has
10
its designation as a licensing authority in relation to one or more reserved legal
activities cancelled—
(a)
by virtue of section 74, or
(b)
by an order under section 75.
(2)
The Secretary of State may by order make—
15
(a)
such modifications of provisions made by or under any enactment
(including this Act or any enactment passed after this Act), prerogative
instrument or other instrument or document, and
(b)
such transitional or consequential provision,

as the Secretary of State considers necessary or expedient in consequence of the
20
cancellation.
(3)
The Secretary of State may, by order, make transfer arrangements.
(4)
“Transfer arrangements” are arrangements in accordance with which each
consenting licensed body is, from the time the cancellation takes effect, treated
as being authorised to carry on each protected activity by virtue of a licence
25
issued under this Part by a licensing authority, in relation to the protected
activity, which consents to the transfer arrangements.
(5)
“Consenting licensed body” means a licensed body authorised by the former
authority which consents to the transfer arrangements.
(6)
The transfer arrangements—
30
(a)
must make such provision as is necessary to ensure that, where a
licensed body is treated under those arrangements as being authorised
to carry on a protected activity by the new authority, that licensed body
is subject to the licensing rules of the new authority;
(b)
may make provision requiring amounts held by the former authority
35
which represent amounts paid to it by way of licensing fees by the
consenting licensed bodies (or a part of the amounts so held) to be paid
to the new authority and treated as if they were amounts paid by those
licensed bodies by way of licensing fees to the new authority.
(7)
Subsection (6)(a) is subject to any transitional provision which may be made by
40
the transfer arrangements, including provision modifying the licensing rules of
the new authority as they apply to the bodies to whom the transfer
arrangements apply.
(8)
The Secretary of State may make an order under this section only if—

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(a)
the Board has made a recommendation in accordance with section 77,
and
(b)
the order is in the same form as, or in a form which is not materially
different from, the draft order annexed to that recommendation.
(9)
For the purposes of this section—
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(a)
a licensed body is “authorised by the former authority” if immediately
before the time the cancellation takes effect the body is, by virtue of a
licence under this Part, authorised by the former authority to carry on
an activity which is a reserved legal activity to which the cancellation
relates, and
10
(b)
in relation to that body—
(i)
the activity which the body is authorised to carry on as
mentioned in paragraph (a) is a “protected activity”, and
(ii)
“the new authority” means the licensing authority by which (in
accordance with transfer arrangements under subsection (4))
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the body is treated as authorised to carry on a protected activity.
(10)
In this section “licensing fee”, in relation to a licensing authority, means a fee
payable by a licensed body under the authority’s licensing rules made in
accordance with paragraph 21 of Schedule 11.
77
The Board’s power to recommend orders made under section 76
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(1)
The Board may recommend to the Secretary of State that the Secretary of State
make an order under section 76 in the form of a draft order prepared by the
Board and annexed to the recommendation.
(2)
Before making a recommendation under this section, the Board must publish a
draft of—
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(a)
the proposed recommendation, and
(b)
the proposed draft order.
(3)
The draft must be accompanied by a notice which states that representations
about the proposals may be made to the Board within a specified period.
(4)
Before making the recommendation, the Board must have regard to any
30
representations duly made.
(5)
If the draft order to be annexed to the recommendation differs from the draft
published under subsection (2)(b) in a way which is, in the opinion of the
Board, material, the Board must, before making the recommendation, publish
the draft order along with a statement detailing the changes made and the
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reasons for those changes.
78
Cancellation of designation: powers of entry etc
(1)
This section applies where an approved regulator (“the former authority”) has
its designation in relation to one or more reserved legal activities cancelled by
by virtue of section 74 or an order under section 75.
40
(2)
The Board may request the former authority to provide assistance to the new
authority and the Board, for the purpose of continuing regulation.

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(3)
On an application by a person appointed by the Board to act on its behalf, a
judge of the High Court, Circuit judge or justice of the peace may issue a
warrant authorising that person to—
(a)
enter and search the premises of the former authority, and
(b)
take possession of any written or electronic records found on the
5
premises.
(4)
A person so authorised may, for the purpose of continuing regulation, take
copies of written or electronic records found on a search carried out by virtue
of the warrant.
(5)
The judge or justice of the peace may not issue the warrant unless satisfied that
10
its issue is necessary or desirable for the purpose of continuing regulation.
(6)
The Secretary of State must make regulations—
(a)
specifying further matters which a judge or justice of the peace must be
satisfied of, or matters which a judge or justice of the peace must have
regard to, before issuing a warrant, and
15
(b)
regulating the exercise of a power conferred by a warrant issued under
subsection (3) or by subsection (4) (whether by restricting the
circumstances in which a power may be exercised, by specifying
conditions to be complied with in the exercise of a power, or otherwise).
(7)
Regulations under subsection (6)(b) must in particular make provision as to
20
circumstances in which written or electronic records of which a person has
taken possession by virtue of a warrant issued under subsection (3) may be
copied or must be returned.
(8)
But the Secretary of State may not make regulations under subsection (6)
unless—
25
(a)
they are made in accordance with a recommendation made by the
Board, or
(b)
the Secretary of State has consulted the Board about the making of the
regulations.
(9)
The Board must make rules as to the persons it may appoint for the purposes
30
of subsection (3).
(10)
For the purposes of this section—
“authorised by the former authority”, “protected activity” and “new
authority” have the same meaning as for the purposes of section 76;
“the purpose of continuing regulation” means the purpose of enabling
35
bodies authorised by the former authority to continue to be authorised
and regulated in relation to the protected activity.
Appeals
79
Functions of appellate bodies
(1)
The Secretary of State may by order—
40
(a)
establish a body to hear and determine appeals from decisions, made
by a person specified in the order in the person’s capacity as a licensing
authority, which are appealable under this Part or licensing rules made
by the person;

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(b)
modify, or make any other provision relating to, the functions of a body
within subsection (2) or any other body, for the purpose of enabling the
body to hear and determine appeals from such decisions.
(2)
The bodies mentioned in subsection (1)(b) are—
(a)
the Solicitors Disciplinary Tribunal;
5
(b)
the Discipline and Appeals Committee established by the Council of
Licensed Conveyancers under section 25 of the Administration of
Justice Act 1985 (c. 61).
(3)
The Secretary of State may make an order under subsection (1) only if—
(a)
the Board has made a recommendation in accordance with section 80,
10
(b)
a draft order was annexed to the recommendation, and
(c)
the order is in the same form as, or not materially different from, that
draft order.
(4)
An order under this section may—
(a)
make provision as to the payment of fees, and award of costs, in
15
relation to such appeals;
(b)
modify provisions made by or under any enactment (including this Act
or any Act passed after this Act), prerogative instrument or other
instrument or document.
(5)
Any provision made by an order under this section may be expressed to be
20
conditional upon the person specified in the order being designated by an
order under Part 1 of Schedule 10 as a licensing authority in relation to one or
more reserved legal activities.
(6)
The powers to make an order conferred by this section are without prejudice
to any powers (statutory or non-statutory) which a body may have apart from
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this section.
80
Procedural requirements relating to recommendations under section 79
(1)
A recommendation may be made under section 79 only with the consent of—
(a)
the person from whose decisions the appeals are to be made, and
(b)
where the recommendation is for an order under section 79(1)(b), the
30
body to which appeals are to be made.
(2)
Before making a recommendation under that section, the Board must publish
a draft of—
(a)
the proposed recommendation, and
(b)
the proposed draft order.
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(3)
The draft must be accompanied by a notice which states that representations
about the proposals may be made to the Board within a specified period.
(4)
Before making any recommendation, the Board must have regard to any
representations duly made.
(5)
If the draft order to be annexed to the recommendation differs from the draft
40
published under subsection (2)(b) in a way which is, in the opinion of the
Board, material, the Board must, before making the recommendation, publish
the draft order along with a statement detailing the changes made and the
reasons for those changes.