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Section 20

SCHEDULE 4E+WApproved regulators

This schedule has no associated Explanatory Notes

Part 1E+WExisting regulators

1(1)Each body listed in the first column of the Table in this paragraph is an approved regulator.E+W

(2)Each body so listed is an approved regulator in relation to the reserved legal activities listed in relation to it in the second column of the Table.

Table

Approved regulatorReserved legal activities
The Law Society

The exercise of a right of audience.

The conduct of litigation.

Reserved instrument activities.

Probate activities.

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.

The administration of oaths.

The Master of the Faculties

Reserved instrument activities.

Probate activities.

Notarial activities.

The administration of oaths.

The Institute of Legal Executives

The exercise of a right of audience.

The administration of oaths.

The Council for Licensed Conveyancers

Reserved instrument activities.

The administration of oaths.

[F1Probate activities.]

The Chartered Institute of Patent Attorneys

The exercise of a right of audience.

The conduct of litigation.

Reserved instrument activities.

The administration of oaths.

The Institute of Trade Mark Attorneys

The exercise of a right of audience.

The conduct of litigation.

Reserved instrument activities.

The administration of oaths.

The Association of Law Costs Draftsmen

The exercise of a right of audience.

The conduct of litigation.

The administration of oaths.

[F2The Institute of Chartered Accountants of ScotlandProbate activities.]
[F3The Association of Chartered Certified AccountantsProbate activities.]
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Amendments (Textual)

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Amendments (Textual)

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 paragraph comes into force.E+W

(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 directions under section 32 (powers to direct an approved regulator to take steps in certain circumstances, including steps to amend its regulatory arrangements).

Part 2E+WDesignation of bodies by order

Application to the BoardE+W

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 activities.E+W

(2)The body may apply to the Board for the Board—

(a)to recommend that an order be made by the Lord Chancellor designating the body as an approved regulator in relation to the reserved legal activity or activities in question, and

(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 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

(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 Lord Chancellor.

(5)The proposed regulatory arrangements must, in particular, include—

(a)details of the authority which the applicant proposes to give persons 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 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.

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Commencement Information

I1Sch. 4 para. 3 wholly in force at 1.1.2010; Sch. 4 para. 3 not in force at Royal Assent see s. 211; Sch. 4 para. 3(1)(3)(4) in force at 1.1.2009 by S.I. 2008/3149, art. 2(b)(ii); Sch. 4 para. 3 in force otherwise at 1.1.2010 by S.I. 2009/3250, art. 2(b)(ii) (with art. 9)

Dismissal of applicationE+W

4(1)The Board may refuse to consider, or to continue its consideration of, an application.E+W

(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 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.

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

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Commencement Information

I2Sch. 4 para. 4 wholly in force at 1.1.2010; Sch. 4 para. not in force at Royal Assent see s. 211; Sch. 4 para. 3(1)(3)(4) in force at 1.1.2009 by S.I. 2008/3149, art. 2(b)(ii); Sch. 4 para. 4 in force otherwise at 1.1.2010 by S.I. 2009/3250 {art. 2(b)(ii)} (with art. 9)

Board's duty to seek adviceE+W

5(1)The Board must give each of the persons listed in sub-paragraph (2)—E+W

(a)a copy of the application and accompanying material, and

(b)a notice specifying a period within which any advice given under paragraphs 6 to 8 must be given.

(2)Those persons are—

(a)the [F4 CMA],

(b)the Consumer Panel,

(c)the Lord Chief Justice, and

(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).

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Amendments (Textual)

Advice of [F5Competition and Markets Authority]E+W

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Amendments (Textual)

6(1)The [F6CMA ] must give the Board such advice as the [F6CMA ] thinks fit regarding whether the application should be granted.E+W

(2)In deciding what advice to give, the [F6CMA ] 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 or distort competition within the market for reserved legal services to any significant extent.

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Amendments (Textual)

F6Word in Sch. 4 para. 6(1) (2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 117(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Advice of the Consumer PanelE+W

7(1)The Consumer Panel must give the Board such advice as the Consumer Panel thinks fit regarding whether the application should be granted.E+W

(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 consulteesE+W

8A selected consultee may give the Board such advice as the selected consultee thinks fit in respect of the application.E+W

Advice of the Lord Chief JusticeE+W

9(1)The Board must give the Lord Chief Justice—E+W

(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 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 making of an order under paragraph 17 in accordance with the recommendation applied for.

Information obtained by consulteesE+W

10A 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 to 9, request the applicant or any other person to provide the consultee with such additional information as may be specified by the consultee.E+W

Representations by applicantE+W

11(1)The Board must give the applicant a copy of any advice duly given under paragraphs 6 to 9.E+W

(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 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.

(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

(b)have regard to any comments duly made.

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Commencement Information

I3Sch. 4 para. 11 wholly in force at 1.1.2010; Sch. 4 para. 11 not in force at Royal Assent see s. 211; Sch. 4 para. 11(3) in force at 1.1.2009 by S.I. 2008/3149, art. 2(b)(ii); Sch. 4 para. 11 in force otherwise at 1.1.2010 by S.I. 2009/3250, art. 2(b)(ii) (with art. 9)

Publication of advice and representations etcE+W

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—E+W

(a)any advice duly given under paragraphs 6 to 9, and

(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

(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 publication of which, in the opinion of the publisher, would or might seriously and prejudicially affect the interests of that individual.

Rules governing decisions by the BoardE+W

13(1)The Board must make rules specifying how it will determine applications.E+W

(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—

(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 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,

(d)that the applicant's proposed regulatory arrangements comply with the requirement imposed by sections 52 and 54 (resolution of regulatory conflict), and

(e)that those arrangements comply with the requirements imposed by sections 112 and 145 (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 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.

Determination of applicationsE+W

14(1)After considering—E+W

(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 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 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.

15(1)Where an application is made under this Part, the Board must give the decision notice under paragraph 14 within the decision period.E+W

(2)The “decision period” is the period of 12 months beginning with the day on which the application is made to the Board.

(3)The Board may, before the end of the decision period, issue a notice extending that period by a period specified in the notice.

(4)More than one notice may be issued under sub-paragraph (3), but the decision period must not exceed 16 months.

(5)The Board may issue a notice under sub-paragraph (3) only after it has consulted—

(a)the [F7CMA],

(b)the Consumer Panel, and

(c)the Lord Chief Justice.

(6)A notice under sub-paragraph (3) must state the Board's reasons for extending the decision period.

(7)The Board must publish any notice issued under sub-paragraph (3).

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Amendments (Textual)

Effect of grant of applicationE+W

16(1)This paragraph applies where an application is granted in relation to a reserved legal activity or activities.E+W

(2)The Board must recommend to the Lord Chancellor that an order be made designating the applicant as an approved regulator in relation to the reserved legal activity or activities in question.

(3)The Board must publish any recommendation made under sub-paragraph (2).

(4)The Board must make available to the Lord Chancellor—

(a)any advice duly given under paragraphs 6 to 9,

(b)any written representations duly made under paragraph 11 and the report (if any) prepared under that paragraph, and

(c)any other material considered by the Board for the purpose of determining the application.

Lord Chancellor's decision to make an orderE+W

17(1)Where a recommendation is made to the Lord Chancellor under paragraph 16, the Lord Chancellor may—E+W

(a)make an order in accordance with the recommendation, or

(b)refuse to make such an order.

(2)Where the recommendation relates to more than one reserved legal activity, the Lord Chancellor may make an order under sub-paragraph (1)(a) in relation to all or any of them.

(3)The Lord Chancellor must—

(a)decide whether to make an order under this paragraph, and

(b)give notice of that decision (“the decision notice”) to the applicant,

within the period of 90 days beginning with the day on which the recommendation was made.

(4)If the Lord Chancellor decides not to make an order in accordance with the whole or part of the recommendation, the decision notice must state the reasons for the decision.

(5)The Lord Chancellor must publish the decision notice.

Approval of regulatory arrangementsE+W

18(1)Where an order is made by the Lord Chancellor under paragraph 17, the applicant's proposed regulatory arrangements are at the same time treated as having been approved by the Board.E+W

(2)But where the order relates to one or more (but not all) of the reserved legal activities to which the application related, sub-paragraph (1) has effect as if the reference to the applicant's proposed regulatory arrangements were a reference to those arrangements excluding any provision made in respect of any activities excluded from the order.

(3)Sub-paragraph (1) is without prejudice to the Board's power to give directions under section 32 (powers to direct an approved regulator to take steps in certain circumstances, including steps to amend its regulatory arrangements).

Part 3E+WAlteration of approved regulator's regulatory arrangements

Requirement for approvalE+W

19(1)If an alteration is made of the regulatory arrangements of an approved regulator, the alteration does not have effect unless it is approved for the purposes of this Act.E+W

(2)An alteration is approved for the purposes of this Act if—

(a)it is approved by virtue of paragraph 18 (approval of proposed regulatory arrangements on designation by order as approved regulator),

(b)it is approved by the Board under this Part of this Schedule,

(c)it is an exempt alteration,

(d)it is an alteration made in compliance with a direction under section 32,

(e)it is approved by virtue of paragraph 16 of Schedule 10 (approval of licensing rules on designation by order as licensing authority), or

(f)it is approved by virtue of paragraph 7 of Schedule 18 (approval of proposed regulatory arrangements when granting “qualifying regulator” status for the purposes of Part 5 of the Immigration and Asylum Act 1999 (c. 33)).

(3)An exempt alteration is an alteration which the Board has directed is to be treated as exempt for the purposes of this paragraph.

(4)A direction under sub-paragraph (3) may be specific or general and must be published by the Board.

(5)In this Part of this Schedule, references to an “alteration” of regulatory arrangements include an addition to, or the revocation of any part of, the arrangements.

(6)If a question arises whether approval is required by virtue of this Part of this Schedule, it is for the Board to decide.

(7)Nothing in this Part of this Schedule applies in relation to any alteration of the regulatory arrangements of the Board in its capacity as an approved regulator (or of its licensing rules).

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Commencement Information

I4Sch. 4 para. 19 partly in force; Sch. 4 para. 19 not in force at Royal Assent see s. 211; Sch. 4 para. 19(1)(2)(a)-(e)(3)-(7) in force at 1.1.2010 by S.I. 2009/3250, art. 2(b)(ii) (with art. 9)

I5Sch. 4 para. 19(2)(f) in force at 1.4.2011 by S.I. 2011/720, art. 2(b)

Application to BoardE+W

20(1)An application by an approved regulator for the Board to approve an alteration or alterations of its regulatory arrangements must be made in such form and manner as the Board may specify in rules.E+W

(2)The application must be accompanied by—

(a)details of such of the approved regulator's regulatory arrangements as are relevant to the application,

(b)details of the alteration or alterations, and

(c)such explanatory material as the approved regulator considers is likely to be needed for the purposes of this Part of this Schedule.

Initial determinationE+W

21(1)Where the Board has received an application under paragraph 20 it may—E+W

(a)grant the application and give the approved regulator a notice to that effect, or

(b)give the approved regulator a notice stating that the Board is considering whether to refuse the application (a “warning notice”).

(2)The Board must publish any notice given by it under sub-paragraph (1)(a) or (b).

(3)If the Board does not give the approved regulator a notice under sub-paragraph (1)(a) or (b) within the initial decision period, the application is deemed to have been granted by the Board.

(4)The “initial decision period” means the period of 28 days beginning with the day on which the application was received by the Board.

(5)The Board may extend the initial decision period—

(a)with the consent of the approved regulator, or

(b)by giving an extension notice to the approved regulator,

before the end of that period (or if it has previously been extended under this sub-paragraph, that period as so extended).

(6)An extension notice—

(a)must specify the period of the extension, and

(b)must state the Board's reasons for extending the initial decision period.

(7)The period specified in the notice under sub-paragraph (6)(a) must end no later than the end of the period of 90 days beginning with the date on which the application was made under paragraph 20.

AdviceE+W

22(1)Where the Board has given the approved regulator a warning notice, the Board may invite such persons as it considers appropriate to give the Board advice regarding whether the application should be granted.E+W

(2)A person (“the consultee”) to whom an invitation is given under sub-paragraph (1) may, for the purposes of giving advice to the Board under this paragraph, request the approved regulator or any other person to provide the consultee with such additional information as may be specified by the consultee.

Representations by applicantE+W

23(1)The Board must give the approved regulator a copy of any advice obtained under paragraph 22.E+W

(2)The approved regulator 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 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 approved regulator, or

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

(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 approved regulator a reasonable opportunity to comment on a draft of the report, and

(b)have regard to any comments duly made.

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Commencement Information

I6Sch. 4 para. 23 wholly in force at 1.1.2010; Sch. 4 para. 23 not in force at Royal Assent see s. 211; Sch. 4 para. 23(3) in force at 1.1.2009 by S.I. 2008/3149, art. 2(b)(ii); Sch. 4 para. 23 in force otherwise at 1.1.2010 by S.I. 2009/3250, art. 2(b)(ii) (with art. 9)

Publication of advice and representations etcE+W

24(1)The Board must, as soon as practicable after the end of the period within which representations under paragraph 23 may be made, publish—E+W

(a)any advice given under paragraph 22, and

(b)any written representations duly made under paragraph 23 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 paragraph 22 from publishing that advice, or

(b)to prevent a person who makes representations under paragraph 23 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 publication of which, in the opinion of the publisher, would or might seriously and prejudicially affect the interests of that individual.

Decision by the BoardE+W

25(1)After considering—E+W

(a)the application and any accompanying material,

(b)any other information provided by the approved regulator,

(c)any advice obtained under paragraph 22,

(d)any representations duly made under paragraph 23, and

(e)any other information which the Board considers relevant to the application,

the Board must decide whether to grant the application.

(2)The Board may grant the application in whole or in part.

(3)The Board may refuse the application only if it is satisfied that—

(a)granting the application would be prejudicial to the regulatory objectives,

(b)granting the application would be contrary to any provision made by or by virtue of this Act or any other enactment or would result in any of the designation requirements ceasing to be satisfied in relation to the approved regulator,

(c)granting the application would be contrary to the public interest,

(d)the alteration would enable the approved regulator to authorise persons to carry on activities which are reserved legal activities in relation to which it is not a relevant approved regulator,

(e)the alteration would enable the approved regulator to license persons under Part 5 to carry on activities which are reserved legal activities in relation to which it is not a licensing authority, or

(f)the alteration has been or is likely to be made otherwise than in accordance with the procedures (whether statutory or otherwise) which apply in relation to the making of the alteration.

(4)For the purposes of sub-paragraph (3)(b) the designation requirements are—

(a)a requirement that the approved regulator has appropriate internal governance arrangements in place,

(b)a requirement that the applicant is competent, and has sufficient resources to perform the role of approved regulator in relation to the reserved legal activities in respect of which it is designated, and

(c)the requirements of paragraph 13(2)(c) to (e).

(5)Sub-paragraph (3) applies in relation to any part of an application as if references to the application were to the part.

(6)The Board must give notice of its decision (“the decision notice”) to the approved regulator.

(7)Where the Board decides to refuse the application (in whole or in part), the decision notice must specify the reasons for that decision.

(8)The Board must publish the decision notice.

Failure to decide application during decision periodE+W

26(1)This paragraph applies where the Board gives an approved regulator a warning notice under paragraph 21 in respect of the approved regulator's application.E+W

(2)If the Board does not give the approved regulator notice of its decision under paragraph 25 within the decision period, the application is deemed to have been granted by the Board at the end of that period.

(3)Subject to sub-paragraphs (4) and (5), “the decision period” means the period of 12 months beginning with the day on which the approved regulator received the warning notice.

(4)The Board may, on one or more occasions, give the approved regulator a notice (an “extension notice”) extending the decision period.

(5)But—

(a)an extension notice may only be given before the time when the decision period would end, but for the extension notice, and

(b)the total decision period must not exceed 18 months.

(6)The Board must publish any extension notice given by it.

Effect of grant of applicationE+W

27(1)Where an application is granted under paragraph 21(1)(a) or (3), 25(1) or 26(2), the alteration or alterations of the regulatory arrangements to which the application relates are approved.E+W

(2)Where a part of an application is granted under paragraph 25(1), the alteration or alterations of the regulatory arrangements to which the part relates are approved.

(3)Sub-paragraphs (1) and (2) are without prejudice to the Board's power to give directions under section 32 (power to direct an approved regulator to take steps in certain circumstances, including steps to amend its regulatory arrangements).

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