|
| |
|
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 |
| |
| |
(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 |
| |
| 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 |
| |
| |
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 |
| |
| |
(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). |
| |
|
| |
|
| |
|
(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 |
| |
| |
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. |
| |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(a) | the end of the period of 90 days beginning with the day on which that |
| |
| 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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(a) | the end of the period of 90 days beginning with the day on which that |
| 10 |
| |
(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. |
| |
| 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 |
| |
“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 |
| |
| |
| |
(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, |
| |
| |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
| |
(b) | its arrangements (if any) for authorising persons to provide |
| 10 |
immigration advice or immigration services, |
| |
| |
| |
(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 |
| |
| |
(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). |
| |
| |
“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 |
| |
| 35 |
(b) | failure, on the part of regulated persons, to account for money |
| |
received by them in connection with their activities as such |
| |
| |
“conduct rules”, in relation to a body, means any rules or regulations |
| |
(however they may be described) as to the conduct required of |
| 40 |
| |
“discipline rules”, in relation to a body, means any rules or regulations |
| |
(however they may be described) as to the disciplining of regulated |
| |
| |
“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 |
| |
|
| |
|
| |
|
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 |
| |
| 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, |
| |
| |
(ii) | any other requirements which must be met by or in |
| 10 |
| |
| 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 |
| |
(ii) | any other requirements which must be met by or in |
| |
| |
| 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 |
| |
| |
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. |
| |
| |
(a) | a not for profit body, |
| |
(b) | a community interest company, or |
| |
|
| |
|
| |
|
| |
(3) | The transitional period is the period which— |
| |
(a) | begins with the day appointed for the coming into force of section 13, |
| |
| |
(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 |
| |
| |
(5) | An order may be made under subsection (3)(b) only on the recommendation of |
| |
| 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 |
| |
| |
(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 |
| |
(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 |
| |
| 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 |
| |
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. |
| |
|
| |
|
| |
|
(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 |
| |
(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. |
| |
| |
“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 |
| |
“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 |
| |
(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 |
| |
| |
(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 |
| |
Regulation of approved regulators |
| |
| |
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. |
| |
|
| |
|