Legal Services Bill [HL]

House of Commons

Session 2006 - 07
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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,
15
(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.
20
      (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
5
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
20
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
30
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
20
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.
35
      (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).

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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.
35
      (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—

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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;

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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);
20
“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.
45