Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Schedule 2 — The reserved legal activities
127

appropriate place insert—
“The Legal Services Board.”
Freedom of information
28
In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (c. 36) (other
public bodies and offices which are public authorities) at the appropriate
5
place insert—
“The Legal Services Board.”
Public records
29
In Schedule 1 to the Public Records Act 1958 (c. 51) (definition of public
records) at the appropriate place in Part 2 of the Table at the end of
10
paragraph 3 insert—
“The Legal Services Board.”
Exemption from liability in damages
30    (1)
This paragraph applies to—
(a)
the Board,
15
(b)
a member of the Board,
(c)
a member of the Board’s staff appointed under paragraph 12,
(d)
a person to whom the Board (in its capacity as an approved
regulator) delegates any of its functions by virtue of provision made
under section 64(2)(k), and
20
(e)
a person to whom the Board (in its capacity as a licensing authority)
delegates any of its functions by virtue of section 73(3)(a).
      (2)
A person to whom this paragraph applies is not liable in damages for
anything done or omitted in the exercise or purported exercise of the
functions of the Board conferred by or by virtue of this or any other
25
enactment.
      (3)
But sub-paragraph (1) does not apply—
(a)
if it is shown that the act or omission was in bad faith, or
(b)
so as to prevent an award of damages made in respect of an act or
omission on the ground that the act or omission was unlawful as a
30
result of section 6(1) of the Human Rights Act 1998 (c. 42).
Schedule 2
Section 12

The reserved legal activities
Introduction
1
This Schedule makes provision about the reserved legal activities.
35
2
In this Schedule “the appointed day” means the day appointed for the
coming into force of section 13 (entitlement to carry on reserved legal
activities).

Legal Services Bill [HL]
Schedule 2 — The reserved legal activities
128

Rights of audience
3     (1)
A “right of audience” means the right to appear before and address a court,
including the right to call and examine witnesses.
      (2)
But a “right of audience” does not include a right to appear before or address
a court, or to call or examine witnesses, in relation to any particular court or
5
in relation to particular proceedings, if immediately before the appointed
day no restriction was placed on the persons entitled to exercise that right.
Conduct of litigation
4     (1)
The “conduct of litigation” means—
(a)
the issuing of proceedings before any court in England and Wales,
10
(b)
the commencement, prosecution and defence of such proceedings,
and
(c)
the performance of any ancillary functions in relation to such
proceedings (such as entering appearances to actions).
      (2)
But the “conduct of litigation” does not include any activity within
15
paragraphs (a) to (c) of sub-paragraph (1), in relation to any particular court
or in relation to any particular proceedings, if immediately before the
appointed day no restriction was placed on the persons entitled to carry on
that activity.
Reserved instrument activities
20
5     (1)
“Reserved instrument activities” means—
(a)
preparing any instrument of transfer or charge for the purposes of
the Land Registration Act 2002 (c. 9);
(b)
making an application or lodging a document for registration under
that Act;
25
(c)
preparing any other instrument relating to real or personal estate for
the purposes of the law of England and Wales or instrument relating
to court proceedings in England and Wales.
      (2)
But “reserved instrument activities” does not include the preparation of an
instrument relating to any particular court proceedings if, immediately
30
before the appointed day, no restriction was placed on the persons entitled
to carry on that activity.
      (3)
In this paragraph “instrument” includes a contract for the sale or other
disposition of land (except a contract to grant a short lease), but does not
include—
35
(a)
a will or other testamentary instrument,
(b)
an agreement not intended to be executed as a deed, other than a
contract that is included by virtue of the preceding provisions of this
sub-paragraph,
(c)
a letter or power of attorney, or
40
(d)
a transfer of stock containing no trust or limitation of the transfer.
      (4)
In this paragraph a “short lease” means a lease such as is referred to in
section 54(2) of the Law of Property Act 1925 (c. 20) (short leases).

Legal Services Bill [HL]
Schedule 3 — Exempt persons
129

Probate activities
6     (1)
“Probate activities” means preparing any probate papers for the purposes of
the law of England and Wales or in relation to any proceedings in England
and Wales.
      (2)
In this paragraph “probate papers” means papers on which to found or
5
oppose—
(a)
a grant of probate, or
(b)
a grant of letters of administration.
Notarial activities
7     (1)
“Notarial activities” means activities which, immediately before the
10
appointed day, were customarily carried on by virtue of enrolment as a
notary in accordance with section 1 of the Public Notaries Act 1801 (c. 79).
      (2)
Sub-paragraph (1) does not include activities carried on—
(a)
by virtue of section 22 or 23 of the Solicitors Act 1974 (c. 47) (reserved
instrument activities and probate activities), or
15
(b)
by virtue of section 113 of the Courts and Legal Services Act 1990
(c. 41)(administration of oaths).
Administration of oaths
8
The “administration of oaths” means the exercise of the powers conferred on
a commissioner for oaths by—
20
(a)
the Commissioners for Oaths Act 1889 (c. 10);
(b)
the Commissioners for Oaths Act 1891 (c. 50);
(c)
section 24 of the Stamp Duties Management Act 1891 (c. 38).
Schedule 3
Section 19

Exempt persons
25
Rights of audience
1     (1)
This paragraph applies to determine whether a person is an exempt person
for the purpose of exercising a right of audience before a court in relation to
any proceedings (subject to paragraph 7).
      (2)
The person is exempt if the person—
30
(a)
is not an authorised person in relation to that activity, but
(b)
has a right of audience granted by that court in relation to those
proceedings.
      (3)
The person is exempt if the person—
(a)
is not an authorised person in relation to that activity, but
35
(b)
has a right of audience before that court in relation to those
proceedings granted by or under any enactment.
      (4)
The person is exempt if the person is the Attorney General or the Solicitor
General and—

Legal Services Bill [HL]
Schedule 3 — Exempt persons
130

(a)
the name of the person is on the roll kept by the Law Society under
section 6 of the Solicitors Act 1974 (c. 47), or
(b)
the person has been called to the Bar by an Inn of Court.
      (5)
The person is exempt if the person is the Advocate General for Scotland and
is admitted—
5
(a)
as a solicitor in Scotland under section 6 of the Solicitors (Scotland)
Act 1980 (c. 46), or
(b)
to practise as an advocate before the courts of Scotland.
      (6)
The person is exempt if the person—
(a)
is a party to those proceedings, and
10
(b)
would have a right of audience, in the person’s capacity as such a
party, if this Act had not been passed.
      (7)
The person is exempt if—
(a)
the person is an individual employed (whether wholly or in part), or
otherwise engaged, to assist in the conduct of litigation,
15
(b)
the person is assisting in the conduct of litigation—
(i)
under instructions given (either generally or in relation to the
proceedings) by an individual to whom sub-paragraph (8)
applies, and
(ii)
under the supervision of that individual, and
20
(c)
the proceedings are being heard in chambers in the High Court or a
county court and are not reserved family proceedings.
      (8)
This sub-paragraph applies to—
(a)
any authorised person in relation to an activity which constitutes the
conduct of litigation;
25
(b)
any person who by virtue of section 194 is not required to be entitled
to carry on such an activity.
      (9)
The person is an exempt person in relation to the exercise of a right of
audience in proceedings on an appeal from the Comptroller-General of
Patents, Designs and Trade Marks to the Patents Court under the Patents Act
30
1977 (c. 37), if the person is a solicitor of the Court of Judicature of Northern
Ireland.
     (10)
For the purposes of this paragraph—
“family proceedings” has the same meaning as in the Matrimonial and
Family Proceedings Act 1984 (c. 42) and also includes any other
35
proceedings which are family proceedings for the purposes of the
Children Act 1989 (c. 41);
“reserved family proceedings” means such category of family
proceedings as the Lord Chancellor may, after consulting the
President of the Law Society and with the concurrence of the
40
President of the Family Division, by order prescribe;

and any order made under section 27(9) of the Courts and Legal Services Act
1990 (c. 41) before the day appointed for the coming into force of this
paragraph is to have effect on and after that day as if it were an order made
under this sub-paragraph.
45

Legal Services Bill [HL]
Schedule 3 — Exempt persons
131

Conduct of litigation
2     (1)
This paragraph applies to determine whether a person is an exempt person
for the purpose of carrying on any activity which constitutes the conduct of
litigation in relation to any proceedings (subject to paragraph 7).
      (2)
The person is exempt if the person—
5
(a)
is not an authorised person in relation to that activity, but
(b)
has a right to conduct litigation granted by a court in relation to those
proceedings.
      (3)
The person is exempt if the person—
(a)
is not an authorised person in relation to that activity, but
10
(b)
has a right to conduct litigation in relation to those proceedings
granted by or under any enactment.
      (4)
The person is exempt if the person—
(a)
is a party to those proceedings, and
(b)
would have a right to conduct the litigation, in the person’s capacity
15
as such a party, if this Act had not been passed.
      (5)
The person is an exempt person in relation to any activity which is carried
on in or in connection with proceedings on an appeal from the Comptroller-
General of Patents, Designs and Trade Marks to the Patents Court under the
Patents Act 1977 (c. 37), if the person is a solicitor of the Court of Judicature
20
of Northern Ireland.
Reserved instrument activities
3     (1)
This paragraph applies to determine whether a person is an exempt person
for the purpose of carrying on any activity which constitutes reserved
instrument activities (subject to paragraph 7).
25
      (2)
The person is exempt if the person prepares the instruments or applications
in the course of the person’s duty as a public officer.
      (3)
The person (“E”) is exempt if—
(a)
E is an individual,
(b)
E carries on the activity at the direction and under the supervision of
30
another individual (“P”),
(c)
when E does so, P and E are connected, and
(d)
P is entitled to carry on the activity, otherwise than by virtue of sub-
paragraph (10).
      (4)
For the purposes of sub-paragraph (3), P and E are connected if—
35
(a)
P is E’s employer,
(b)
P is a partner in E’s employer,
(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
40
such a manager or employee,
(e)
the following conditions are satisfied—
(i)
P is a manager or employee of a body corporate recognised
under section 32 of the Administration of Justice Act 1985,
(ii)
E is also such a manager or employee, and
45

Legal Services Bill [HL]
Schedule 3 — Exempt persons
132

(iii)
the activity was carried on in the course of the provision of
conveyancing services which the body corporate was not
precluded from undertaking to provide as a recognised body
by any condition subject to which its recognition under that
section had effect, or
5
(f)
the following conditions are satisfied—
(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.
10
      (5)
If the person is an accredited person, the person is exempt to the extent that
the activity consists of the preparation of any instrument—
(a)
which creates, or which the person believes on reasonable grounds
will create, a farm business tenancy (within the meaning of the
Agricultural Tenancies Act 1995 (c. 8)), or
15
(b)
which relates to an existing tenancy which is, or which the person
believes on reasonable grounds to be, such a tenancy.
      (6)
In sub-paragraph (5) “accredited person” means a person who is—
(a)
a Fellow of the Central Association of Agricultural Valuers, or
(b)
a Member or Fellow of the Royal Institution of Chartered Surveyors.
20
      (7)
The person is exempt to the extent that the activity carried on by the person
is also a reserved legal activity within sub-paragraph (8) and the person is—
(a)
authorised to carry on that activity (other than under Part 5) by a
relevant approved regulator in relation to the activity,
(b)
authorised to carry on that activity by a licence under Part 5, or
25
(c)
an exempt person in relation to that activity by virtue of paragraph 1
or 2 of this Schedule.
      (8)
The activities are—
(a)
the exercise of a right of audience;
(b)
the conduct of litigation.
30
      (9)
The person is exempt if the person is employed merely to engross the
instrument or application.
     (10)
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.
     (11)
The person is exempt if—
35
(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
40
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).
45

Legal Services Bill [HL]
Schedule 3 — Exempt persons
133

      (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
5
(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,
10
(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—
15
(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
20
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).
25
      (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.
      (3)
The person is exempt if section 14 of the Public Notaries Act 1801 (c. 79)
applies to the person, and—
30
(a)
where that section applies by virtue of the person holding or
exercising an office or appointment, the person carries on the activity
for ecclesiastical purposes;
(b)
where that section applies by virtue of the person performing a
public duty or service under government, the person carries on the
35
activity in the course of performing that duty or service.
      (4)
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
40
6     (1)
This paragraph applies to determine whether a person is an exempt person
for the purpose of carrying on any activity which constitutes the
administration of oaths (subject to paragraph 7).