Deregulation Bill

Baroness Hayter of Kentish Town Excerpts

Thursday 5th February 2015 Lords Chamber

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[Baroness Hayter of Kentish Town]

34: After Clause 83, insert the following new Clause—
“Recognised bodies
(1) The Administration of Justice Act 1985 is amended as follows.
(2) In the title of section 32 (provision of conveyancing services by recognised bodies) after “conveyancing” insert “or other”.
(3) In section 32—
(a) in subsection (1)(a) after “conveyancing services bodies” insert “or CLC practitioner services bodies”;(b) in subsection (1)(b)—(i) for “such bodies” substitute “conveyancing services bodies”;(ii) for the words from “to undertake” to the end substitute—“(a) the provision of conveyancing services,(b) the administration of oaths,(c) the exercise of a right of audience,(d) the conduct of litigation,(e) probate activities, or(f) the provision of other relevant legal services;”;(c) after subsection (1)(b) insert—“(bza) prescribing the circumstances in which CLC practitioner services bodies may be recognised by the Council as being suitable bodies to undertake—(i) the administration of oaths,(ii) the exercise of a right of audience,(iii) the conduct of litigation,(iv) probate activities, or(v) the provision of other relevant legal services;”;(d) in subsection (1)(ba) for the words from “carry on” to the end substitute—“(i) reserved instrument activities, where the recognised body is a conveyancing services body,(ii) the administration of oaths,(iii) the exercise of a right of audience,(iv) the conduct of litigation,(v) probate activities, or(vi) other relevant legal services;”;(e) in subsection (3)(e) after “those bodies” insert “(including information about disciplinary measures taken)”;(f) in subsection (3C) after paragraph (a) insert—“(aa) conditions restricting the kinds of CLC practititioner services that may be provided by the body;”; and(g) for subsection (8) substitute—“(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“CLC practitioner services” has the meaning given by section 32B;
“CLC practitioner services body” has the meaning given by section 32B;
“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“conveyancing services body” has the meaning given by section 32A;
“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“relevant legal services”—
(a) in relation to a conveyancing services body, has the meaning given by section 32A; and(b) in relation to a CLC practitioner services body, has the meaning given by section 32B;“reserved instrument activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).”
(4) After section 32A (conveyancing services bodies) insert—
“32B CLC practitioner services bodies
(1) For the purposes of section 32, a “CLC practitioner services body” means a body (corporate or unincorporate) in respect of which—
(a) the management and control condition,(b) the services condition, and(c) the authorised person condition,are satisfied.(2) The management and control condition is satisfied in the case of a partnership if at least one of the partners is a licensed conveyancer or a licensed CLC practitioner.
(3) The management and control condition is satisfied in the case of an unincorporated body (other than a partnership), or a body corporate which is managed by its members, if at least one of those members is a licensed conveyancer or a licensed CLC practitioner.
(4) The management and control condition is satisfied in the case of any other body corporate if at least one director of the body is a licensed conveyancer or a licensed CLC practitioner.
(5) The services condition is satisfied in respect of a body if—
(a) the body is carrying on a business consisting of the provision of—(i) CLC practitioner services; or(ii) CLC practitioner services and other relevant legal services; and(b) the body does not provide conveyancing services.(6) The authorised person condition is satisfied if the licensed conveyancer or licensed CLC practitioner by reference to whom the management and control condition is satisfied, or one of the persons by reference to whom that condition is satisfied, is an authorised person in respect of any of the CLC practitioner services that are provided by the body.
(7) For the purposes of this section—
(a) a reference to CLC practitioner services is a reference to those of the following reserved legal activities in relation to which the Council is designated as an approved regulator—(i) the administration of oaths,(ii) the exercise of a right of audience,(iii) the conduct of litigation, and(iv) probate activities;(b) a reference to designation as an approved regulator is a reference to designation as an approved regulator—(i) by Part 1 of Schedule 4 to the Legal Services Act 2007, by virtue of an order under paragraph 5 of Schedule 22 to that Act; or(ii) under Part 2 of Schedule 4 to that Act;(c) a person has an interest in a body if the person has an interest in the body within the meaning of Part 5 of the Legal Services Act 2007 (see sections 72 and 109 of that Act).(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“authorised person” means an authorised person in relation to an activity which is a reserved legal activity (within the meaning of the Legal Services Act 2007);
“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“relevant legal services”, in relation to a CLC practitioner services body, means—
(a) CLC practitioner services; and(b) where authorised persons are managers or employees of, or have an interest in the body, such services as are provided by individuals practising as such authorised persons (whether or not those services involve the carrying on of reserved legal activities), except for conveyancing services;“reserved legal activity” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).””

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Amendments 34 to 40 are tabled to help the Government, the Legal Services Board and the CLC out of a tiny hole, which is why I anticipate that they will shortly be accepted in principle.

Under the Legal Services Act 2007, the Council for Licensed Conveyancers is an approved regulator for reserved activities, probate and administration of oaths. It was designated a licensing authority for alternative business structures in 2011. However, it has recently been realised that the Administration of Justice Act 1985, which created the CLC and set out its powers, restricts the CLC from achieving its full regulatory ambitions and those of the 2007 Act. In particular, the CLC can regulate only licensed conveyancers. Therefore, potential probate lawyers would first have to qualify as conveyancers for the CLC to be able to regulate them. We know that that was never the intention, so the Ministry of Justice prepared the necessary draft secondary legislation to amend the CLC framework under the Legal Services Act. However, the MoJ then realised that the Legal Services Act did not provide the power to amend the 1985 Act. The change therefore needed primary legislation, hence these amendments.

The first piece of tidying-up would enable the CLC to regulate conveyancing bodies for all reserved legal activities for which it is designated, including enabling it to continue to regulate probate services, which it currently does under the transitional period in the Legal Services Act. The second would allow the CLC to regulate individuals and entities for the provision of legal services without them first having to be regulated for conveyancing. At the moment, the only reserved legal activity other than conveyancing is probate. It would seem a nonsense for someone who wants to do probate first to have to qualify as a licensed conveyancer if they had no intention of ever doing that work.

There are two further changes to simplify the appeals process against determinations by the CLC’s discipline and appeals committee. The first would allow appeals to the First-tier Tribunal instead of the High Court; the second would allow the CLC to appeal against its discipline and appeals committee’s determinations. In these amendments there is also a measure to allow the CLC automatically to suspend—not to revoke—the licences of practitioners, to protect clients and the public while the outcome of investigations and disciplinary action is awaited.

Finally, on the governing council of the CLC, there is presently a requirement that the number of lay members must exceed professional members by exactly one. To avoid any problems that may arise—for example, by the loss of one of the professional members for any reason—it would seem sensible for the lay majority to be expressed as “at least one”, so that the council’s work could continue with a larger lay majority should one of the professional members be unavailable.

The CLC undertook public consultation on all these changes last year. No objections to this were raised by anyone. I know that the changes have the support of the Legal Services Board and the Ministry of Justice. However, they cannot be achieved via Section 69 of the 2007 Act, hence these amendments, which I beg to move.

[Lord Wallace of Saltaire]

My Lords, I congratulate the noble Baroness. On this Bill, she wins first prize for length, technical detail and complexity of amendments, with a gold star for achieving this on two groups of amendments on entirely differently topics. I wondered, as I read through both of them and did my best to understand their complexity and technicality, whether the two groups were pushing in different directions: resisting a loosening of regulations on insolvency practitioners, but promoting a loosening of regulations on conveyancers.

The Government welcome the principles behind the amendment and are in full agreement with the noble Baroness that these restrictions should be removed. The Government also agree that the other measures are sensible and proportionate. However, we have some reservations about the exact terms of the amendment and would very much like to take it away and tweak it in various ways, returning with a government amendment at Third Reading. I therefore commit to coming forward with our own amendments at Third Reading to achieve the aims of the noble Baroness’s amendments. I hope that, with that assurance, she will feel able to withdraw her amendment at this stage.

[Baroness Hayter of Kentish Town]

Provided that the Minister does not expect me to read through the whole of his new amendments in great detail to check that they are correct, I am very happy to accept that we will deal with this at Third Reading, and I beg leave to withdraw the amendment.

Amendment 34 withdrawn.