House of Commons portcullis
House of Commons
Session 2006 - 07
Internet Publications
Other Bills before Parliament

Legal Services Bill [HL]


Legal Services Bill [HL]
Part 3 — Reserved legal activities

7

 

15      

Carrying on of a reserved legal activity: employers and employees etc

(1)   

This section applies for the interpretation of references in this Act to a person

carrying on an activity which is a reserved legal activity.

(2)   

References to a person carrying on an activity which is a reserved legal activity

include a person (“E”) who—

5

(a)   

is an employee of a person (“P”), and

(b)   

carries on the activity in E’s capacity as such an employee.

(3)   

For the purposes of subsection (2), it is irrelevant whether P is entitled to carry

on the activity.

(4)   

P does not carry on an activity (“the relevant activity”) which is a reserved legal

10

activity by virtue of E carrying it on in E’s capacity as an employee of P, unless

the provision of relevant services to the public or a section of the public (with

or without a view to profit) is part of P’s business.

(5)   

Relevant services are services which consist of or include the carrying on of the

relevant activity by employees of P in their capacity as employees of P.

15

(6)   

The Lord Chancellor may by order make provision about—

(a)   

what does or does not constitute a section of the public;

(b)   

the circumstances in which the provision of relevant services to the

public or a section of the public does or does not form part of P’s

business.

20

(7)   

The Lord Chancellor may make an order under subsection (6) only on the

recommendation of the Board.

(8)   

If P is a body, references to an employee of P include references to a manager

of P.

16      

Offence to carry on reserved legal activity through person not entitled

25

(1)   

Where subsection (2) applies it is an offence for a person (“P”) to carry on an

activity (“the relevant activity”) which is a reserved legal activity, despite P

being entitled to carry on the relevant activity.

(2)   

This subsection applies if—

(a)   

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

30

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

(b)   

in carrying on the relevant activity, E commits an offence under section

14.

(3)   

If P is a body, references in subsection (2) to an employee of P include

references to a manager of P.

35

(4)   

In proceedings for an offence under subsection (1), it is a defence for the

accused to show that the accused took all reasonable precautions and exercised

all due diligence to avoid committing the offence.

(5)   

A person who is guilty of an offence under subsection (1) is liable—

(a)   

on summary conviction, to imprisonment for a term not exceeding 12

40

months or a fine not exceeding the statutory maximum (or both), and

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

2 years or a fine (or both).

 
 

Legal Services Bill [HL]
Part 3 — Reserved legal activities

8

 

(6)   

A person who is guilty of an offence under subsection (1) by reason of an act

done in the purported exercise of a right of audience, or a right to conduct

litigation, in relation to any proceedings or contemplated proceedings is also

guilty of contempt of the court concerned and may be punished accordingly.

(7)   

In relation to an offence under subsection (1) committed before the

5

commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the

reference in subsection (5)(a) to 12 months is to be read as a reference to 6

months.

17      

Offence to pretend to be entitled

(1)   

It is an offence for a person—

10

(a)   

wilfully to pretend to be entitled to carry on any activity which is a

reserved legal activity when that person is not so entitled, or

(b)   

with the intention of implying falsely that that person is so entitled, to

take or use any name, title or description.

(2)   

A person who is guilty of an offence under subsection (1) is liable—

15

(a)   

on summary conviction, to imprisonment for a term not exceeding 12

months or a fine not exceeding the statutory maximum (or both), and

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

2 years or a fine (or both).

(3)   

In relation to an offence under subsection (1) committed before the

20

commencement of section 154(1) of the Criminal Justice Act 2003, the reference

in subsection (2)(a) to 12 months is to be read as a reference to 6 months.

Interpretation

18      

Authorised persons

(1)   

For the purposes of this Act “authorised person”, in relation to an activity (“the

25

relevant activity”) which is a reserved legal activity, means —

(a)   

a person who is authorised to carry on the relevant activity by a

relevant approved regulator in relation to the relevant activity (other

than by virtue of a licence under Part 5), or

(b)   

a licensable body which, by virtue of such a licence, is authorised to

30

carry on the relevant activity by a licensing authority in relation to the

reserved legal activity.

(2)   

A licensable body may not be authorised to carry on the relevant activity as

mentioned in subsection (1)(a).

(3)   

But where a body (“A”) which is authorised as mentioned in subsection (1)(a)

35

becomes a licensable body, the body is deemed by virtue of this subsection to

continue to be so authorised from that time until the earliest of the following

events—

(a)   

the end of the period of 90 days beginning with the day on which that

time falls;

40

(b)   

the time from which the relevant approved regulator determines this

subsection is to cease to apply to A;

(c)   

the time when A ceases to be a licensable body.

 
 

Legal Services Bill [HL]
Part 3 — Reserved legal activities

9

 

(4)   

Subsection (2) is subject to Part 2 of Schedule 5 (by virtue of which licensable

bodies may be deemed to be authorised as mentioned in subsection (1)(a) in

relation to certain activities during a transitional period).

(5)   

A person other than a licensable body may not be authorised to carry on the

relevant activity as mentioned in subsection (1)(b).

5

(6)   

But where a body (“L”) which is authorised as mentioned in subsection (1)(b)

ceases to be a licensable body, the body is deemed by virtue of this subsection

to continue to be so authorised from that time until the earliest of the following

events—

(a)   

the end of the period of 90 days beginning with the day on which that

10

time falls;

(b)   

the time from which the relevant licensing authority determines this

subsection is to cease to apply to L;

(c)   

the time when L becomes a licensable body.

19      

Exempt persons

15

In this Act, “exempt person”, in relation to an activity (“the relevant activity”)

which is a reserved legal activity, means a person who is, by virtue of Schedule

3, an exempt person for the purposes of carrying on the relevant activity.

20      

Approved regulators and relevant approved regulators

(1)   

In this Act, the following expressions have the meaning given by this section—

20

“approved regulator”;

“relevant approved regulator”.

(2)   

“Approved regulator” means—

(a)   

a body which is designated as an approved regulator by Part 1 of

Schedule 4 or under Part 2 of that Schedule (or both) and whose

25

regulatory arrangements are approved for the purposes of this Act, and

(b)   

if an order under section 62(1)(a) has effect, the Board.

(3)   

An approved regulator is a “relevant approved regulator” in relation to an

activity which is a reserved legal activity if—

(a)   

the approved regulator is designated by Part 1, or under Part 2, of

30

Schedule 4 in relation to that reserved legal activity, or

(b)   

if the approved regulator is the Board, it is designated in relation to that

reserved legal activity by an order under section 62(1)(a).

(4)   

An approved regulator is a “relevant approved regulator” in relation to a

person if the person is authorised by the approved regulator to carry on an

35

activity which is a reserved legal activity.

(5)   

Schedule 4 makes provision with respect to approved regulators other than the

Board.

   

In that Schedule—

(a)   

Part 1 designates certain bodies as approved regulators in relation to

40

certain reserved legal activities,

(b)   

Part 2 makes provision for bodies to be designated by order as

approved regulators in relation to one or more reserved legal activities,

and

 
 

Legal Services Bill [HL]
Part 3 — Reserved legal activities

10

 

(c)   

Part 3 makes provision relating to the approval of changes to an

approved regulator’s regulatory arrangements.

(6)   

An approved regulator may authorise persons to carry on any activity which

is a reserved legal activity in respect of which it is a relevant approved

regulator.

5

21      

Regulatory arrangements

(1)   

In this Act references to the “regulatory arrangements” of a body are to—

(a)   

its arrangements for authorising persons to carry on reserved legal

activities,

(b)   

its arrangements (if any) for authorising persons to provide

10

immigration advice or immigration services,

(c)   

its practice rules,

(d)   

its conduct rules,

(e)   

its disciplinary arrangements in relation to regulated persons

(including its discipline rules),

15

(f)   

its qualification regulations,

(g)   

its indemnification arrangements,

(h)   

its compensation arrangements,

(i)   

any of its other rules or regulations (however they may be described),

and any other arrangements, which apply to or in relation to regulated

20

persons, other than those made for the purposes of any function the

body has to represent or promote the interests of persons regulated by

it, and

(j)   

its licensing rules (if any), so far as not within paragraphs (a) to (i),

   

(whether or not those arrangements, rules or regulations are contained in, or

25

made under, an enactment).

(2)   

In this Act—

“compensation arrangements”, in relation to a body, means arrangements

to provide for grants or other payments for the purposes of relieving or

mitigating losses or hardship suffered by persons in consequence of—

30

(a)   

negligence or fraud or other dishonesty on the part of any

persons whom the body has authorised to carry on activities

which constitute a reserved legal activity, or of employees of

theirs, in connection with their activities as such authorised

persons, and

35

(b)   

failure, on the part of regulated persons, to account for money

received by them in connection with their activities as such

regulated persons;

“conduct rules”, in relation to a body, means any rules or regulations

(however they may be described) as to the conduct required of

40

regulated persons;

“discipline rules”, in relation to a body, means any rules or regulations

(however they may be described) as to the disciplining of regulated

persons;

“indemnification arrangements”, in relation to a body, means

45

arrangements for the purpose of ensuring the indemnification of those

who are or were regulated persons against losses arising from claims in

relation to any description of civil liability incurred by them, or by

 
 

Legal Services Bill [HL]
Part 3 — Reserved legal activities

11

 

employees or former employees of theirs, in connection with their

activities as such regulated persons;

“practice rules”, in relation to a body, means any rules or regulations

(however they may be described) which govern the practice of

regulated persons;

5

“qualification regulations”, in relation to a body, means—

(a)   

any rules or regulations relating to—

(i)   

the education and training which persons must receive,

or

(ii)   

any other requirements which must be met by or in

10

respect of them,

   

in order for them to be authorised by the body to carry on an

activity which is a reserved legal activity,

(b)   

any rules or regulations relating to—

(i)   

the education and training which persons must receive,

15

or

(ii)   

any other requirements which must be met by or in

respect of them,

   

in order for them to be authorised by the body to provide

immigration advice or immigration services, and

20

(c)   

any other rules or regulations relating to the education and

training which regulated persons must receive or any other

requirements which must be met by or in respect of them,

(however they may be described).

(3)   

In this section “regulated persons”, in relation to a body, means any class of

25

persons which consists of or includes—

(a)   

persons who are authorised by the body to carry on an activity which

is a reserved legal activity;

(b)   

persons who are not so authorised, but are employees of a person (other

than an individual) who is so authorised.

30

(4)   

In relation to an authorised person other than an individual, references in

subsection (2) and (3) to employees of the person include managers of the

person.

Continuity of existing rights and transitional protection

22      

Continuity of existing rights to carry on reserved legal activities

35

Schedule 5 makes provision for the continuity of existing rights and for certain

persons to be deemed, during a transitional period, to be authorised by

approved regulators to carry on certain activities.

23      

Transitional protection for non-commercial bodies

(1)   

During the transitional period, a body within subsection (2) is entitled to carry

40

on any activity which is a reserved legal activity.

(2)   

The bodies are—

(a)   

a not for profit body,

(b)   

a community interest company, or

 
 

Legal Services Bill [HL]
Part 3 — Reserved legal activities

12

 

(c)   

a trade union.

(3)   

The transitional period is the period which—

(a)   

begins with the day appointed for the coming into force of section 13,

and

(b)   

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

5

purposes of this paragraph.

(4)   

Different days may be appointed under subsection (3)(b) for different

purposes.

(5)   

An order may be made under subsection (3)(b) only on the recommendation of

the Board.

10

Alteration of reserved legal activities

24      

Extension of the reserved legal activities

(1)   

The Lord Chancellor may, by order, amend section 12 or Schedule 2 (reserved

legal activities) so as to add any legal activity to the activities which are

reserved legal activities for the purposes of this Act.

15

(2)   

An order under subsection (1) may only be made on the recommendation of

the Board.

(3)   

Schedule 6 makes provision about the making of recommendations for the

purposes of this section.

(4)   

Where a recommendation is made in relation to an activity, the Lord

20

Chancellor must—

(a)   

consider the report containing the recommendation given to the Lord

Chancellor under paragraph 16(3)(a) of that Schedule,

(b)   

decide whether or not to make an order under this section in respect of

the activity, and

25

(c)   

publish a notice of that decision,

   

within the period of 90 days beginning with the day on which the report was

given to the Lord Chancellor.

(5)   

Where the Lord Chancellor decides not to make an order under this section in

respect of an activity, the notice under subsection (4)(c) must state the reasons

30

for that decision.

25      

Provisional designation as approved regulators and licensing authorities

(1)   

The Lord Chancellor may, by order, make provision—

(a)   

enabling applications to be made, considered and determined under

Part 2 of Schedule 4 or Part 1 of Schedule 10 in relation to a provisional

35

reserved activity, as if the activity were a reserved legal activity;

(b)   

enabling provisional designation orders to be made by the Lord

Chancellor in respect of a provisional reserved activity, as if the activity

were a reserved legal activity.

(2)   

An order under subsection (1) may, in particular, provide that Part 2 of

40

Schedule 4 or Part 1 of Schedule 10 is to apply, in relation to such cases as may

be specified by the order, with such modifications as may be so specified.

 
 

Legal Services Bill [HL]
Part 4 — Regulation of approved regulators

13

 

(3)   

The Lord Chancellor may also, by order, make provision—

(a)   

for the purpose of enabling applications for authorisation to carry on an

activity which is a provisional reserved activity to be made to and

considered and determined by—

(i)   

a body in respect of which a provisional designation order is

5

made, or

(ii)   

the Board in its capacity as a licensing authority;

(b)   

for the purpose of enabling persons to be deemed to be authorised to

carry on an activity which is a new reserved legal activity by a relevant

approved regulator in relation to the activity, or by the Board in its

10

capacity as a licensing authority, for a period specified in the order.

(4)   

For this purpose—

“provisional reserved activity” means an activity in respect of which a

provisional report under paragraph 10 of Schedule 6 states that the

Board is minded to make a recommendation for the purposes of section

15

24;

“provisional designation order” means an order made by the Lord

Chancellor under Part 2 of Schedule 4 or Part 1 of Schedule 10 which is

conditional upon the Lord Chancellor making an order under section

24 in respect of the provisional reserved activity, pursuant to a

20

recommendation made by the Board following the provisional report;

“new reserved legal activity” means a legal activity which has become a

reserved legal activity by virtue of an order under section 24.

26      

Recommendations that activities should cease to be reserved legal activities

(1)   

The Board may recommend that an activity should cease to be a reserved legal

25

activity.

(2)   

Schedule 6 makes provision about the making of recommendations for the

purposes of this section.

(3)   

The Lord Chancellor must consider any recommendation made by the Board

for the purposes of this section (but nothing in section 209 (minor and

30

consequential provision etc) authorises the Lord Chancellor to give effect to

such a recommendation).

(4)   

Where the Lord Chancellor disagrees with a recommendation (or any part of

it), the Lord Chancellor must publish a notice to that effect which must include

the Lord Chancellor’s reasons for disagreeing.

35

Part 4

Regulation of approved regulators

Introductory

27      

Regulatory and representative functions of approved regulators

(1)   

In this Act references to the “regulatory functions” of an approved regulator

40

are to any functions the approved regulator has—

(a)   

under or in relation to its regulatory arrangements, or

(b)   

in connection with the making or alteration of those arrangements.

 
 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2007
Revised 18 May 2007