Legal Services Bill [HL] - continued          House of Commons

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     Clause 182: Unqualified person not to pretend to be a barrister

430.     This clause makes it an offence for any person who is not a barrister (as defined in clause 208) to pretend to be a barrister, and sets out the penalties that may be imposed on such persons for doing so.

Clause 183: Licensed conveyancers

431.     This clause introduces Schedule 17 which makes a number of amendments to provisions relating to licensed conveyancers, conveyancing services, and the CLC, which will be an approved regulator and is listed in part 1 of Schedule 4. Schedule 17 amends the Administration of Justice Act 1985 and the Courts and Legal Services Act 1990.

432.     Paragraphs 1 to 7 deal with the issuing of conveyancing licences. Paragraph 2 amends the definition of conveyancing services to ensure that it includes all the activities contained in the definition of "reserved instrument activities" in the Act. The CLC is an approved regulator under the Bill in relation to reserved instrument activities. Paragraph 4 amends section 15 of the Administration of Justice Act 1985 so as to allow the CLC a discretion as to the duration of a conveyancing licence. Paragraph 4 further amends section 15 of the Administration of Justice Act 1985 so as to allow the CLC 42 days in which to determine applications for licences (the present period is 21 days).

433.     Paragraphs 5 to 8 deal with the imposition of conditions on a licence. Conditions can, for example, be imposed where the Council has required an accountants report to be delivered within a specified time-frame and this has not been done. Provision is made enabling the CLC to impose an additional fee in certain cases to recover the additional costs in dealing with certain applications. In addition amendments made here allow for a condition to be put on a licence as a result of an order made by the Investigating Committee under their new powers. Paragraph 7 amends section 17 of the Administration of Justice Act 1985 by prescribing additional circumstances in which the Council may direct that a licensed conveyancer's licence shall have effect subject to conditions.

434.     Paragraph 8 inserts a new section into the Administration of Justice Act 1985 to allow the CLC to remove or vary conditions on a licensed conveyancer's licence.

435.     Paragraph 9 amends section 18 of the Administration of Justice Act 1985, in order to provide for the immediate suspension of a licensed conveyancer's licence in instances where the Council exercises certain powers of intervention in respect of a licensed conveyancer's practice in certain defined circumstances.

436.     Paragraphs 12 and 13 operate to amend the provisions that provide for the CLC's current disciplinary arrangements. The effect of these paragraphs is to allow the Investigating Committee, which currently has only an investigatory role, to make a determination on minor infractions of the Council's rules and to fine a licensed conveyancer an amount to be specified in the Council's rules (not to exceed the sum of £1,000). Paragraph 32 makes similar amendments to the equivalent provisions relating to recognised bodies.

437.     Paragraphs 12(7); 13, 1(4); 16; 17; 32(5), (6) ,(7), (9), and (10); and 35(7) amend the Administration of Justice Act 1985 and the Courts and Legal Services Act 1990, in order to enable the Investigating Committee and the Discipline and Appeals Committee to make orders for the payment of costs. The order may relate to all or part of the costs. A successful party would not be entitled to costs as of right: the award will be at the discretion of the committees.

438.     Paragraph 15(3) amends section 26 of the Administration of Justice Act 1985 which makes provision regarding the fining power of the CLC. Presently, the CLC may fine a licensed conveyancer no more than £3,000. The amendment to section 26 will allow the CLC to make rules setting its own limit (subject to the approval of the Board). At paragraph 32(6) of Schedule 17 to the Bill, an amendment is made to the equivalent provision relating to recognised bodies (paragraph 4 of Schedule 6 to the 1985 Act). Paragraphs 13 and 15 allow the Investigating Committee and the Discipline and Appeals Committee respectively to make orders for costs in relation to proceedings before them.

439.     Paragraphs 20 to 21 make amendments to the CLC's powers that are similar to the amendments to the Law Society's powers under section 9 and new section 9A of the Administration of Justice Act 1985. These paragraphs amend section 32 of the 1985 Act and add new section 32A to allow the CLC may "recognise" and regulate new forms of bodies, including partnerships and unincorporated bodies, and including bodies that carry out not just conveyancing services but also other legal services carried out by "authorised persons" under the Legal Services Act 2007. These amendments also allow the CLC to make rules applicable to managers and employees of the bodies that it recognises, and make consequential changes to a number of related provisions in Schedule 6 (see Paragraph 26 of the Schedule). Amendments to Schedule 6 also give the Discipline and Appeals Committee additional order-making powers to reflect the fact that managers and employees may be found in breach of rules applicable to them.

440.     Paragraph 22 amends section 33 to the Administration of Justice Act 1985 to ensure that the legal professional privilege of clients of recognised bodies that are actually "licensable bodies" (and that will therefore need to be licensed under Part 5 of the Act), is governed by the same provision as that for other licensed bodies: clause 191 of the Bill.

441.     Paragraph 23 inserts a new section 33A into the Administration of Justice Act 1985 to confer on the CLC to the power to make arrangements for authorising licensed conveyancers to administer oaths. Under the Bill, the CLC is an approved regulator in relation to authorising persons to administer oaths (see Part 1 of Schedule 4).

442.     Paragraph 25 amends section 35 of the Administration of Justice Act 1985, which relates to the offence of pretending to be a recognised body, to cover the different forms of entity which may now be recognised bodies.

443.     Paragraph 29 amends Schedule 3 of the Administration of Justice Act 1985 to allow CLC members to be appointed as opposed to "elected or nominated". Paragraph 30 amends paragraph 1 of Schedule 4 to the 1985 Act so as to remove the requirement that the rules made by the CLC regarding the procedure and practice of the Discipline and Appeals Committee shall not come into force until approved by the Lord Chancellor.

444.     Paragraph 31 amends Schedule 5 of the Administration of Justice Act 1985, which provides the CLC with intervention powers, to achieve similar outcomes for the CLC as those made to the Law Society's intervention powers by virtue of amendments to Schedule 1 of the 1974 Act and Schedule 2 of the 1985 Act.

445.     Paragraph 32, amongst other things, amends paragraph 14 of Schedule 6 to the Administration of Justice Act 1985 to allow the CLC to require the production of information to a person appointed by the Investigating Committee for the purpose of investigating an allegation of failing to comply with rules a licensed conveyancer must adhere to.

446.     Part 2 of Schedule 17 amends the Courts and Legal Services Act 1990 to allow the Council for Licensed Conveyancers to apply to become an approved regulator of reserved legal activities such as probate activities or the exercise of a right of audience.

447.     It also brings the Courts and Legal Services Act 1990 into line with the Administration of Justice Act 1985 as amended and the Bill by updating the Council's powers in respect of, for example, the new disciplinary powers conferred on the Investigating Committee and the Discipline and Appeals Committee under sections 24A and 26 of the 1985 Act.

     Clause 184: Commissioners for oaths

448.     This clause provides that legislative references to "commissioners for oaths" include persons authorised under the Bill to conduct the reserved legal activity of administering oaths. It also confers upon such persons the right to use the title "Commissioner for Oaths."

449.     It further sets out the circumstances in which an authorised person's right to administer oaths is proscribed, makes certain requirements relating to the way in which the oath or affidavit is taken and proved. The clause also sets out the mechanism by which the fees charged by authorised persons for the administration of oaths and taking of affidavits may be determined by the Lord Chancellor.

     Clause 185: Trade mark attorneys

     Clause 186: Patent attorneys

450.     These clauses provide for amendments to the Trade Marks Act 1994 and the Copyright, Designs and Patents Act 1998. These amendments transfer the Secretary of State's functions in respect of the registers of trade mark attorneys and patent attorneys to the Institute of Trade Mark Attorneys (ITMA) and the Chartered Institute of Patent Agents (CIPA) respectively, and allow for both bodies to make regulations in respect of the registration of trade mark attorneys and patent agents. These regulations may provide for the payment of registration fees and the removal of names from the register. The Secretary of State may make an order, subject to the negative resolution procedure, transferring responsibility for the register to a new person. For example, should ITMA and CIPA merge, their responsibilities in respect of the registers could be transferred to the merged body.

451.     These amendments confer statutory powers on ITMA and CIPA. They allow ITMA to make regulations governing the carrying on of trade mark attorney work by registered trade mark attorneys and CIPA to make regulations governing the carrying on of registered patent attorney work by registered patent attorneys. This represents a significant expansion of CIPA and ITMA's powers. All regulations made under these new provisions will be subject to the Board's oversight whether or not they are "regulatory arrangements" as defined by clause 21.

     Clause 187: Immigration advisers and immigration service providers

452.     This clause introduces Schedule 18, which amends the Immigration and Asylum Act 1999. Under the 1999 Act, two categories of person may provide immigration services: persons registered with Immigration Services Commissioner, and persons authorised by a designated professional body. The amendments to the 1999 Act effected by Schedule 18 introduce a third category of person may provide immigration services: persons authorised by a designated qualifying regulator. The Law Society, the Institute of Legal Executives and the General Council of the Bar will all become designated qualifying regulators when the provision made in Schedule 18 takes effect. At present, these bodies are designated professional bodies. For other bodies, becoming a designated qualifying regulator is a two-step process: first the Board must grant the body's application to become a "qualifying regulator" under Part 1 of Schedule 18, then the Secretary of State must make an order under section 86A(6) of the 1999 Act making it a "designated qualifying regulator". Designated professional bodies are subject to the oversight of the Immigration Services Commissioner, whereas designated qualifying regulators will be subject to the oversight of the Board. Where the Board is of the view that a designated qualifying regulator is failing to regulate the provision of immigration services effectively, the Board may report its view to the Lord Chancellor and to the Secretary of State. The Secretary of State will have the power to remove a body's status as a designated qualifying regulator, and a body will also cease to have that status if it ceases to be an approved regulator under the Bill. The intention of the provision under paragraph 1(4)(d) is for fees to cover the reasonable costs associated with the application, etc., to which they relate.

453.     Part 1 of Schedule 18 sets out the procedure by which a body may apply to the Board to become a "qualifying regulator". Only "qualifying regulators" may become designated qualifying regulators. Part 2 of the Schedule sets out the amendments to Part 5 of the 1999 Act that are required in order to establish the new framework. Part 3 of the Schedule makes transitional provision protecting persons presently authorised to provide immigration services by those designated professional bodies that will become designated qualifying regulators under the new framework.

     Clause 188: Claims management services

454.     Schedule 19 makes amendment to Part 2 of the Compensation Act 2006. The amendments provide for regulatory oversight functions of the Claims Management regulator to transfer from the Secretary of State to the Board. This includes ensuring that a regulator can only be designated by the Secretary of State on the recommendation of the Board, and that any regulations made by the Secretary of State are on the recommendation, or in consultation with, the Board. Clause 162 provides for complaints handling to come under the jurisdiction of the Office for Legal Complaints (OLC).

     Clause 189: Duties of advocates and litigators

455.     This clause reproduces the effect of sections 27(2A) and 28(2A) of the Courts and Legal Services Act 1990, which are repealed by the Bill. Authorised persons who exercise rights of audience or rights to conduct litigation have a duty to the court to act with independence in the interests of justice, and a duty to comply with conduct rules applicable to them. These duties override any other obligations that the persons may have (otherwise than under the criminal law) if they are inconsistent with them.

     Clause 190: Employed advocates

456.     This clause replicates section 31A of the Courts and Legal Services Act 1990 which is repealed by the Bill. It ensures that qualification regulations and conduct rules which apply to the exercise of a right of audience by a person employed as a Crown Prosecutor or in any other employment are not more restrictive than the regulations and rules applying to other persons exercising that right.

Clause 191: Legal professional privilege

457.     This clause states that legal professional privilege applies to any communication made to or by an individual who is not a barrister or solicitor at any time when the individual is providing advocacy services, litigation services, conveyancing services or probate services in the individual's capacity as an authorised person. Such a communication is to be treated as if it were a communication made by a solicitor for the purposes of disclosure. This clause reproduces the effect of section 63 of the Courts and Legal Services Act 1990.

458.     Subsections (3) to (5) provide that communications made by a licensed body in legal proceedings will be privileged to the same extent that they would be privileged had they been made by a "relevant lawyer", provided that the communications in question are made through, or under the supervision of, a "relevant lawyer". "Relevant lawyer" means a barrister, solicitor, or person otherwise entitled to conduct reserved legal activities.

Clause 192: Rights of audience etc of employees of housing management bodies

459.     This clause amends the County Courts Act 1984 by inserting a new section 60A. Section 60A will give a right of audience in certain county court proceedings, and a right to conduct litigation in relation to those proceedings, to employees of a housing management body who have written authorisation from that body. Section 60A will apply to proceedings that are within subsection (3) - for example proceedings for demotion, possession and injunctions on grounds of anti-social behaviour - brought by a housing management body on behalf of the local housing authority by virtue of a housing management agreement under section 27 of the Housing Act 1985.

Clause 193: Powers of court in respect of rights of audience and conduct litigation

460.     This clause preserves the rights of courts to refuse to hear persons who would otherwise have a right of audience before them. It replicates provision to the same effect in sections 27 and 28 of the Courts and Legal Services Act 1990. Those sections are repealed by the Bill.

     Clause 194: Solicitors to public departments and the City of London

461.     This clause provides that nothing in the Bill shall prejudice or affect the rights or privileges of the Treasury Solicitor and certain other office holders. It also provides that such officers and their employees will not be required to be admitted or enrolled, or to hold a practising certificate under the Solicitors Act 1974 in order to conduct a reserved legal activity, if they would have been able to conduct that activity without a practising certificate by virtue of section 88 of the Solicitors Act 1974 had the provision in the Bill not been made. Subsection (4) preserves the rights and privileges enjoyed by the Solicitor of the City of London.

462.     This clause also imposes a duty on persons exercising rights of audience or the right to conduct litigation by virtue of this clause to act with independence in the interests of justice. This duty overrides any obligations which such a person may have (otherwise than under the criminal law) if it is inconsistent with them.

Clause 195: Payments in respect of pro bono representation

463.     This clause enables a court to make an order in civil cases requiring a person to make a payment where a party to the proceedings was represented by a legal representative whose services were provided 'pro bono' (i.e. free of charge). Under the current costs law, an unsuccessful party will not be required to pay any amount in respect of that representation because the services have been provided free of charge and so there are no costs. Under the new scheme, awards will be at the discretion of the court and will be paid directly to a designated charitable body, established to administer and distribute the monies to organisations who conduct pro bono work.

     Clause 196: Application of the Legal Profession and Legal Aid (Scotland) Act 2007

464.     The Legal Profession and Legal Aid (Scotland) Act 2007 establishes a Scottish Legal Complaints Commission, and provides for the Commission's main functions to be to handle consumer complaints about the service provided by legal practitioners and to oversee the handling of conduct complaints by the legal professional bodies in Scotland. This clause extends the remit of that body to areas which are reserved to the UK Parliament.

465.     Regulation of the legal profession in Scotland is devolved by the Scotland Act 1998 (Schedule 5, head C3), but there are a few areas where the Scottish legal professional bodies are the regulatory body or co-regulatory body in terms of a UK statute, the subject matter of which is reserved. The areas in question are consumer credit, insolvency, immigration and financial services.

466.     To ensure that the Legal Profession and Legal Aid (Scotland) Act 2007 fell within devolved competence, it was necessary to exclude these reserved areas from the remit of that Act, which is achieved by section 47 of that Act.

467.     Subsection (1) applies the provisions of the Legal Profession and Legal Aid (Scotland) Act 2007 to (a) any element of a complaint relating to advice, services or activities in the reserved areas specified in subsection 2, and (b) the provision by a practitioner of such advice, services or activities. The advice, services or activities in question fall within areas reserved to the UK Parliament and also the competence of the Scottish Parliament.

468.     Subsection (2) defines such advice, services and activities to be:

  • Consumer credit services: activities carried out by virtue of a group licence under section 22(1)(b) of the Consumer Credit Act 1974. The Law Society of Scotland holds such a licence which is granted by the Office of Fair Trading (OFT). The licence enables members of the Society to provide services in the areas of consumer credit, credit brokerage, debt-adjusting and debt-counselling and debt-collecting.

  • Insolvency services: activities of an insolvency practitioner within the meaning of Part 13 of the Insolvency Act 1986. The Law Society of Scotland is a recognised professional body under the 1986 Act and issues licences to Scottish solicitors who wish to be appointed as insolvency practitioners.

  • Immigration advice or immigration services: the Law Society of Scotland and the Faculty of Advocates are designated professional bodies under the Immigration and Asylum Act 1999. Designation under the Act removes the need for Scottish solicitors and advocates to be individually registered with the Immigration Services Commissioner. The Commissioner has the power to receive complaints against Scottish solicitors giving immigration advice and is required to monitor how any complaints which are passed to the Law Society of Scotland or the Faculty of Advocates are handled (Schedule 5, paragraph 10 of the 1999 Act). The Commissioner is required to review the list of designated professional bodies and report to Scottish Ministers if a designated professional body in Scotland is failing to provide effective regulation of its members.

  • Financial services:

  • Activities mentioned in paragraph 5(1)(a) of Schedule 3 to the Financial Services Act 1986. The Law Society of Scotland was a recognised professional body under the 1986 Act and still retains the function of dealing with complaints against Scottish solicitors in relation to investment business carried on under the 1986 Act. This function of recognised professional bodies was saved, on the repeal of the 1986 Act.

  • Regulated activity within the meaning of section 22 of the Financial Services and Markets Act 2000, other than activities falling within paragraph (f) of subsection (2), in respect of which the Financial Services Authority has by virtue of Part 20 of that Act arranged for its regulatory role to be carried out by the Law Society of Scotland.

  • Exempt regulated activities within the meaning of section 325(2) of the Financial Services and Markets Act 2000. Since 30 November 2001 the Law Society of Scotland has been a designated professional body under the Financial Services and Markets Act 2000 and responsible for the licensing and regulating of solicitor firms which conduct incidental investment business (i.e. investment work which is incidental and complementary to the provision of legal services). The Financial Services Authority has been responsible since that date for the authorisation and direct regulation of solicitor firms in Scotland which wish to conduct mainstream investment business under the 2000 Act.

469.     Subsection (3) provides for references to "complaint" and "practitioner" to have the same meaning as in Part 1 of the 2007 Act. "Complaint" is defined by that Act to include any expression of dissatisfaction. "Practitioner" is defined to cover (a) an advocate; (b) a conveyancing practitioner; (c) an executry practitioner; (d) a firm of solicitors; (e) an incorporated practice; (f) a person exercising a right to conduct litigation or a right of audience acquired by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990; and (g) a solicitor.

470.     Subsection (4) repeals section 47 of the 2007 Act, which will no longer be required once the Legal Services Bill provides full competence for the Scottish Legal Complaints Commission in relation to both reserved and devolved areas.

471.     Subsection (5) introduces Schedule 20 to the Bill which sets out minor and consequential amendments.

Clause 197: Scottish legal services ombudsman: functions

472.     Subsection (1) disapplies the functions of the Scottish Legal Services Ombudsman in relation to advice, services and activities which fall within the reserved areas mentioned in clause 196(2). The 2007 Act will effect the repeal of those functions of the Ombudsman which fall within devolved competence. It provides a power for Scottish Ministers to modify the functions of the Scottish Legal Services Ombudsman by order; and to abolish that office by order when the Ombudsman has no remaining functions. It is envisaged that such an order will be undertaken once the Legal Services Bill has removed the functions of the Ombudsman which fall within the reserved areas.

473.     Subsection (2) makes consequential amendments to the Immigration and Asylum Act 1999. The Office of the Immigration Services Commissioner is to retain its oversight function in relation to the Law Society of Scotland and the Faculty of Advocates which are "designated professional bodies" in terms of section 86(1)(c) of the Immigration and Asylum Act 1999.

474.     Where the Lord Chancellor is proposing to de-designate a professional body in terms of section 86(2) of the 1999 Act, the Lord Chancellor must consult the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland. Subsection (2) amends the reference in section 86(4)(c) of the Immigration and Asylum Act 1999 to require that consultation to be with the Scottish Legal Complaints Commission instead of the Scottish Legal Services Ombudsman.

475.     Where the Lord Chancellor proposes to apply the code of conduct for immigration advisers to members of a designated professional body in Scotland, the Lord Chancellor is required by paragraph 4(2)(c) of Schedule 5 to the 1999 Act to consult the Scottish Legal Services Ombudsman. Subsection 2 substitutes a reference to the Scottish Legal Complaints Commission for the existing reference to the Scottish Legal Services Ombudsman.

 
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Prepared: 18 May 2007