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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

146

 

Schedule 5

Section 22

 

Authorised persons

Part 1

Continuity of rights

Rights of audience and conduct of litigation

5

1     (1)  

For the purposes of section 18 (authorised persons), in the case of a person

who is authorised by a listed body—

(a)   

to exercise a right of audience before a court in relation to any

proceedings, or

(b)   

to conduct litigation in relation to any proceedings,

10

           

it is irrelevant whether the person’s authorisation was granted before or on

or after the appointed day.

      (2)  

The “listed bodies” are—

(a)   

The Law Society,

(b)   

The General Council of the Bar,

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(c)   

The Chartered Institute of Patent Attorneys,

(d)   

The Institute of Trade Mark Attorneys,

(e)   

The Association of Law Costs Draftsmen, and

(f)   

for the purposes of sub-paragraph (1)(a) only, The Institute of Legal

Executives.

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      (3)  

For the purposes of sub-paragraph (1), any authority conferred by section 31

of the Courts and Legal Services Act 1990 (c. 41) (barristers and solicitors

deemed to have rights of audience and rights to conduct litigation) is to be

disregarded (see paragraphs 4 and 7 below).

Conveyancing services

25

2     (1)  

For the purposes of section 18, in the case of a licensed conveyancer who is

authorised to carry on an activity which is a reserved instrument activity by

a conveyancing licence, it is irrelevant whether the licence was granted

before or on or after the appointed day.

      (2)  

For the purposes of this paragraph “conveyancing licence” means a licence

30

to practise as a licensed conveyancer granted under Part 2 of the

Administration of Justice Act 1985 (c. 61).

Part 2

Rights during transitional period

The transitional period

35

3     (1)  

In this Part of this Schedule references to “the transitional period” are to the

period which—

(a)   

begins with the appointed day (within the meaning given by

paragraph 19), and

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

147

 

(b)   

ends with the day appointed by the Lord Chancellor by order for the

purposes of this paragraph.

      (2)  

Different days may be appointed under sub-paragraph (1)(b) for different

purposes.

      (3)  

An order may be made under sub-paragraph (1)(b) only on the

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recommendation of the Board.

Barristers etc

4     (1)  

During the transitional period, every barrister is deemed to be authorised by

the General Council of the Bar to carry on the activities in sub-paragraph (2).

      (2)  

Those activities are—

10

(a)   

the exercise of a right of audience before every court in relation to all

proceedings;

(b)   

reserved instrument activities;

(c)   

probate activities;

(d)   

the administration of oaths.

15

      (3)  

The authority conferred on a barrister by this paragraph is exercisable in

accordance with, and subject to, the regulatory arrangements of the General

Council of the Bar.

      (4)  

A person is not authorised under sub-paragraph (1) unless the person has in

force a certificate issued by the General Council of the Bar authorising the

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person to practise as a barrister.

5     (1)  

During the transitional period, every registered European lawyer registered

with the Inns of Court and the General Council of the Bar is deemed to be

authorised by the General Council of the Bar to carry on activities which—

(a)   

are within paragraph 4(2), and

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(b)   

the registered European lawyer is entitled to carry on under his

home professional title by virtue of the European regulations.

      (2)  

The authority conferred on a registered European lawyer by virtue of this

paragraph is exercisable in accordance with, and subject to, the regulatory

arrangements of the General Council of the Bar (as they apply to the

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registered European lawyer by virtue of the European regulations).

      (3)  

In this paragraph—

“European regulations” means the European Communities (Lawyer’s

Practice) Regulations 2000 (S.I. 2000/1119);

“home professional title” and “registered European lawyer” have the

35

same meaning as in the European regulations.

6          

During the transitional period members of the Bar not in actual practice are

to continue to have the rights conferred by section 102A(2) of the Patents Act

1977 (c. 37) (right of audience, etc in proceedings on appeal from the

comptroller).

40

Solicitors etc

7     (1)  

During the transitional period—

(a)   

every qualified solicitor,

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

148

 

(b)   

every legal partnership, and

(c)   

every body recognised under section 9 of the Administration of

Justice Act 1985 (c. 61) (incorporated practices) (“a recognised

body”),

           

is deemed to be authorised by the Law Society to carry on the activities in

5

sub-paragraph (2).

      (2)  

Those activities are—

(a)   

the exercise of a right of audience before every court in relation to all

proceedings;

(b)   

the conduct of litigation in relation to every court and all

10

proceedings;

(c)   

reserved instrument activities;

(d)   

probate activities;

(e)   

the administration of oaths.

      (3)  

The authority conferred on a qualified solicitor, legal partnership or

15

recognised body by this paragraph is exercisable in accordance with, and

subject to, the regulatory arrangements of the Law Society.

      (4)  

In this paragraph—

“legal partnership” means a partnership in which a qualified solicitor,

a registered European Lawyer or a body recognised under section 9

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of the Administration of Justice Act 1985 is permitted to practise by

virtue of rules made under that section or section 31 of the Solicitors

Act 1974 (c. 47);

“qualified solicitor” means a person who is qualified under section 1 of

the Solicitors Act 1974 to act as a solicitor;

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“registered European lawyer” means a registered European lawyer

within the meaning of the European Communities (Lawyer’s

Practice) Regulations 2000 (S.I. 2000/1119) who is registered with the

Law Society.

8     (1)  

During the transitional period, every registered European lawyer registered

30

with the Law Society is deemed to be authorised by the Law Society to carry

on activities which—

(a)   

are within paragraph 7(2), and

(b)   

the registered European lawyer is entitled to carry on under his

home professional title by virtue of the European regulations.

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      (2)  

The authority conferred on a registered European lawyer by virtue of this

paragraph is exercisable in accordance with, and subject to, the regulatory

arrangements of the Law Society (as they apply to the registered European

lawyer by virtue of the European regulations).

      (3)  

In this paragraph—

40

“European regulations” means the European Communities (Lawyer’s

Practice) Regulations 2000 (S.I. 2000/1119);

“home professional title” and “registered European lawyer” have the

same meaning as in the European regulations.

9     (1)  

During the transitional period, solicitors are to continue to have the rights

45

conferred on them by subsection (1) of section 102A of the Patents Act 1977

(c. 37) (rights of audience, etc in proceedings on appeal from the

comptroller).

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

149

 

      (2)  

During that period, registered European lawyers are to continue to have the

rights conferred on them by that subsection by virtue of the European

regulations.

      (3)  

In this paragraph “European regulations” and “registered European lawyer”

have the same meaning as in paragraph 8.

5

Legal Executives

10    (1)  

During the transitional period, a person authorised by the Institute of Legal

Executives to practise as a member of the profession of legal executives is

deemed to be authorised by that Institute to administer oaths.

      (2)  

The authority conferred by sub-paragraph (1) is exercisable in accordance

10

with and subject to the regulatory arrangements of the Institute of Legal

Executives.

      (3)  

A person is not authorised under sub-paragraph (1) unless the person has in

force a certificate issued by the Institute of Legal Executives authorising the

person to practise as a legal executive.

15

Licensed conveyancers

11    (1)  

During the transitional period every individual who holds a conveyancing

licence is deemed to be authorised by the Council for Licensed

Conveyancers to administer oaths.

      (2)  

The authority conferred by sub-paragraph (1) is exercisable in accordance

20

with and subject to the regulatory arrangements of the Council.

      (3)  

During that period, every conveyancing partnership and every body

recognised under section 32 of the Administration of Justice Act 1985 (c. 61)

(bodies corporate entitled to provide conveyancing services) is deemed to be

authorised by the Council—

25

(a)   

to carry on conveyancing services, and

(b)   

to administer oaths.

      (4)  

The authority conferred by sub-paragraph (3) is exercisable in accordance

with and subject to—

(a)   

in the case of a body recognised under section 32 of the

30

Administration of Justice Act 1985, any condition subject to which its

recognition has effect, and

(b)   

the regulatory arrangements of the Council.

      (5)  

In this section “conveyancing partnership” means a partnership at least

some of the members of which are licensed conveyancers.

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      (6)  

For the purposes of this paragraph a conveyancing licence is to be treated as

not in force during any period when it is suspended.

Notaries public

12    (1)  

During the transitional period, every duly certificated notary is deemed to

be authorised by the Master of the Faculties to carry on the activities in sub-

40

paragraph (2).

      (2)  

Those activities are—

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

150

 

(a)   

reserved instrument activities;

(b)   

probate activities;

(c)   

notarial activities;

(d)   

the administration of oaths.

      (3)  

The authority conferred by sub-paragraph (1) is exercisable in accordance

5

with and subject to the regulatory arrangements of the Master of the

Faculties.

      (4)  

In this paragraph “duly certificated notary” means a notary who either—

(a)   

has in force a practising certificate as a solicitor issued under the

Solicitors Act 1974 (c. 47), and is duly entered in the Court of

10

Faculties of the Archbishop of Canterbury in accordance with rules

made by the Master of the Faculties, or

(b)   

has in force a practising certificate as a public notary issued by the

said Court of Faculties in accordance with rules so made.

13    (1)  

During the transitional period, a person (“P”) is an exempt person in relation

15

to the carrying on of an activity (“the relevant activity”) which is a notarial

activity if—

(a)   

P carries on the relevant activity by virtue of an employee of P (“E”)

carrying it on in E’s capacity as such an employee, and

(b)   

E is an authorised person in relation to the relevant activity.

20

      (2)  

If P is a body, in this paragraph references to an employee of P include

references to a manager of P.

Patent attorneys

14    (1)  

During the transitional period, every registered patent attorney is deemed

to be authorised by the Chartered Institute of Patent Attorneys to carry on

25

reserved instrument activities.

      (2)  

During that period, every authorised patent attorney is deemed to be

authorised by the Chartered Institute of Patent Attorneys to administer

oaths.

      (3)  

During that period, every patent attorney body is deemed to be authorised

30

by the Chartered Institute of Patent Attorneys to carry on the activities in

sub-paragraph (4).

      (4)  

Those activities are any activities which are reserved legal activities within

sub-paragraph (5) and which—

(a)   

if the body is a partnership, any partner who is a registered patent

35

attorney is authorised to carry on;

(b)   

if the body is a body corporate, any director who is a registered

patent attorney is authorised to carry on.

      (5)  

Those activities are—

(a)   

the exercise of a right of audience;

40

(b)   

the conduct of litigation;

(c)   

reserved instrument activities;

(d)   

the administration of oaths.

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

151

 

      (6)  

The authority conferred by any of sub-paragraphs (1) to (3) is exercisable in

accordance with and subject to the regulatory arrangements of the

Chartered Institute of Patent Attorneys.

      (7)  

In this paragraph—

“authorised patent attorney” means a registered patent attorney who is

5

authorised by the Chartered Institute of Patent Attorneys to carry on

one or both of the following activities—

(a)   

the exercise of a right of audience;

(b)   

the conduct of litigation;

“patent attorney body” means—

10

(a)   

a partnership all the partners of which are registered patent

attorneys,

(b)   

a body corporate all the directors of which are registered

patent attorneys,

(c)   

a partnership or body corporate which satisfies the

15

conditions prescribed under section 279 of the Copyright,

Designs and Patents Act 1988 (c. 48), or

(d)   

a body corporate to which section 276(4) of that Act applies;

“registered patent attorney” has the meaning given by section 275(2) of

that Act;

20

           

and, in the case of a patent attorney body to which section 276(4) of that Act

applies, the reference in sub-paragraph (4)(b) to a director includes a

reference to the manager (within the meaning of section 276(4) of that Act)

of the company.

15    (1)  

During the transitional period registered patent attorneys are to continue to

25

have the rights conferred by section 102A(2) of the Patents Act 1977 (c. 37)

and section 292 of the Copyright, Designs and Patents Act 1988.

      (2)  

In this paragraph “registered patent attorney” has the same meaning as in

paragraph 14.

Trade mark attorneys

30

16    (1)  

During the transitional period, every registered trade mark attorney is

deemed to be authorised by the Institute of Trade Mark Attorneys to carry

on reserved instrument activities.

      (2)  

During that period, every authorised trade mark attorney is deemed to be

authorised by the Institute of Trade Mark Attorneys to administer oaths.

35

      (3)  

During that period, every trade mark attorney body is deemed to be

authorised by the Institute of Trade Mark Attorneys to carry on the activities

in sub-paragraph (4).

      (4)  

Those activities are any activities which are reserved legal activities within

sub-paragraph (5) and which—

40

(a)   

if the body is a partnership, any partner who is a registered trade

mark attorney is authorised to carry on, or

(b)   

if the body is a body corporate, any director who is a registered trade

mark attorney is authorised to carry on.

      (5)  

Those activities are—

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(a)   

the exercise of a right of audience;

 

 

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period

152

 

(b)   

the conduct of litigation;

(c)   

reserved instrument activities;

(d)   

the administration of oaths.

      (6)  

The authority conferred by any of sub-paragraphs (1) to (3) is exercisable in

accordance with and subject to the regulatory arrangements of the Institute

5

of Trade Mark Attorneys.

      (7)  

In this paragraph—

“authorised trade mark attorney” means a registered trade mark

attorney who is authorised by the Institute of Trade Mark Attorneys

to carry on one or both of the following activities—

10

(a)   

the exercise of a right of audience;

(b)   

the conduct of litigation;

“trade mark attorney body” means—

(a)   

a partnership all the partners of which are registered trade

mark attorneys,

15

(b)   

a body corporate all the directors of which are registered

trade mark attorneys, or

(c)   

a partnership or body corporate which satisfies the

conditions prescribed under section 85 of the Trade Marks

Act 1994 (c. 26);

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“registered trade mark attorney” has the same meaning as in the Trade

Marks Act 1994.

Law costs draftsmen

17    (1)  

During the transitional period, every authorised member of the Association

of Law Costs Draftsmen is deemed to be authorised by that Association to

25

administer oaths.

      (2)  

In this paragraph, “authorised member of the Association of Law Costs

Draftsmen” means a member of that Association who has been authorised

by that Association to carry on one or both of the following activities—

(a)   

the exercise of a right of audience;

30

(b)   

the conduct of litigation.

      (3)  

The authority conferred by sub-paragraph (1) is exercisable in accordance

with and subject to the regulatory arrangements of the Association of Law

Costs Draftsmen.

18    (1)  

During the transitional period, a person (“P”) is an exempt person in relation

35

to the carrying on of an activity (“the relevant activity”) which is a reserved

legal activity within sub-paragraph (2), if—

(a)   

P carries on the relevant activity by virtue of an employee of P (“E”)

carrying it on in E’s capacity as such an employee, and

(b)   

E is an authorised member of the Association of Law Costs

40

Draftsmen (within the meaning of paragraph 17(2) of this Schedule).

      (2)  

The reserved legal activities mentioned in sub-paragraph (1) are—

(a)   

the exercise of a right of audience;

(b)   

the conduct of litigation;

(c)   

the administration of oaths.

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