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Legal Services Bill [HL]


Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc

101

 

(6)   

In section 280 (privilege for communications with patent agents), in subsection

(3), at the end of paragraph (b) insert—

“(ba)   

an unincorporated body (other than a partnership) entitled to

describe itself as a patent attorney, or”.

186     

Immigration advisers and immigration service providers

5

(1)   

Schedule 18 makes provision relating to Part 5 of the Immigration and Asylum

Act 1999 (c. 33) (immigration advisers and immigration service providers).

(2)   

In that Schedule—

(a)   

Part 1 makes provision for approved regulators to become qualifying

regulators for the purposes of Part 5 of the Immigration and Asylum

10

Act 1999,

(b)   

Part 2 contains amendments of that Act (which amongst other things

enable persons authorised by qualifying regulators to provide

immigration advice and immigration services in England and Wales),

and

15

(c)   

Part 3 makes provision for certain persons to be treated, during a

transitional period, as authorised by qualifying regulators to provide

such advice and services.

187     

Claims management services

Schedule 19 contains amendments of Part 2 of the Compensation Act 2006 (c.

20

29) (claims management services).

Advocates and litigators

188     

Duties of advocates and litigators

(1)   

This section applies to a person who—

(a)   

exercises before any court a right of audience, or

25

(b)   

conducts litigation in relation to proceedings in any court,

   

by virtue of being an authorised person in relation to the activity in question.

(2)   

A person to whom this section applies has a duty to the court in question to act

with independence in the interests of justice.

(3)   

That duty, and the duty to comply with relevant conduct rules imposed on the

30

person by section 176(1), override any obligations which the person may have

(otherwise than under the criminal law) if they are inconsistent with them.

(4)   

“Relevant conduct rules” are the conduct rules of the relevant authorising body

which relate to the exercise of a right of audience or the conduct of litigation.

(5)   

The relevant authorising body is—

35

(a)   

the approved regulator by which the person is authorised to exercise

the right of audience or conduct the litigation, or

(b)   

where the person is authorised to exercise the right of audience or

conduct the litigation by the Board in its capacity as a licensing

authority, the Board.

40

 
 

Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc

102

 

189     

Employed advocates

(1)   

This section applies where an authorised person in relation to the exercise of a

right of audience is employed as a Crown Prosecutor or in any other

description of employment.

(2)   

Qualification regulations or conduct rules of the approved regulator by whom

5

the person is authorised to carry on that activity which relate to the right of

audience do not have effect in relation to the person if—

(a)   

they—

(i)   

limit the courts before which, or proceedings in which, that

activity may be carried on by persons who are employed, or

10

(ii)   

limit the circumstances in which that activity may be carried on

by persons who are employed by requiring such persons to be

accompanied by some other person when carrying on that

activity, and

(b)   

they do not impose the same limitation on persons who are authorised

15

persons in relation to the activity in question but are not employed.

Legal professional privilege

190     

Legal professional privilege

(1)   

Subsection (2) applies where an individual (“P”) who is not a barrister or

solicitor—

20

(a)   

provides advocacy services as an authorised person in relation to the

exercise of rights of audience,

(b)   

provides litigation services as an authorised person in relation to the

conduct of litigation,

(c)   

provides conveyancing services as an authorised person in relation to

25

reserved instrument activities, or

(d)   

provides probate services as an authorised person in relation to probate

activities.

(2)   

Any communication, document, material or information relating to the

provision of the services in question is privileged from disclosure in like

30

manner as if P had at all material times been acting as P’s client’s solicitor.

(3)   

Subsection (4) applies where—

(a)   

a licensed body provides services to a client, and

(b)   

the individual (“E”) through whom the body provides those services—

(i)   

is a relevant lawyer, or

35

(ii)   

acts at the direction and under the supervision of a relevant

lawyer (“the supervisor”).

(4)   

Any communication, document, material or information relating to the

provision of the services in question is privileged from disclosure only if, and

to the extent that, it would have been privileged from disclosure if—

40

(a)   

the services had been provided by E or, if E is not a relevant lawyer, by

the supervisor, and

(b)   

at all material times the client had been the client of E or, if E is not a

relevant lawyer, of the supervisor.

(5)   

“Relevant lawyer” means an individual who is—

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Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc

103

 

(a)   

a solicitor;

(b)   

a barrister;

(c)   

a solicitor in Scotland;

(d)   

an advocate in Scotland;

(e)   

a solicitor of the Court of Judicature of Northern Ireland;

5

(f)   

a member of the Bar of Northern Ireland;

(g)   

a registered foreign lawyer (within the meaning of section 89 of the

Courts and Legal Services Act 1990 (c. 41));

(h)   

an individual not within paragraphs (a) to (g) who is an authorised

person in relation to an activity which is a reserved legal activity; or

10

(i)   

a European lawyer (within the meaning of the European Communities

(Services of Lawyers) Order 1978 (S.I. 1978/1910)).

(6)   

In this section—

“advocacy services” means any services which it would be reasonable to

expect a person who is exercising, or contemplating exercising, a right

15

of audience in relation to any proceedings, or contemplated

proceedings, to provide;

“litigation services” means any services which it would be reasonable to

expect a person who is exercising, or contemplating exercising, a right

to conduct litigation in relation to any proceedings, or contemplated

20

proceedings, to provide;

“conveyancing services” means the preparation of transfers, conveyances,

contracts and other documents in connection with, and other services

ancillary to, the disposition or acquisition of estates or interests in land;

“probate services” means the preparation of any papers on which to

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found or oppose a grant of probate or a grant of letters of

administration and the administration of the estate of a deceased

person.

(7)   

This section is without prejudice to any other enactment or rule of law by

virtue of which a communication, a document, material or information is

30

privileged from disclosure.

Employees of housing management bodies

191     

Rights of audience etc of employees of housing management bodies

After section 60 of the County Courts Act 1984 (c. 28) insert—

“60A    

Rights of audience etc of employees of housing management bodies

35

(1)   

An employee of a housing management body who is authorised by that

body for the purposes of this section has—

(a)   

a right of audience in relation to any proceedings to which this

section applies, and

(b)   

a right to conduct litigation in relation to any such proceedings.

40

(2)   

This section applies to relevant housing proceedings in a county court

before a district judge which are brought—

(a)   

in the name of a local housing authority, and

 
 

Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc

104

 

(b)   

by the housing management body in the exercise of functions of

that local housing authority delegated to that body under a

housing management agreement.

(3)   

“Relevant housing proceedings” are—

(a)   

proceedings under section 82A of the Housing Act 1985

5

(demotion because of anti-social behaviour);

(b)   

proceedings for possession of a dwelling-house subject to a

secure tenancy, where possession is sought on ground 2 in Part

1 of Schedule 2 to that Act (anti-social behaviour);

(c)   

proceedings for possession of a dwelling-house subject to a

10

demoted tenancy;

(d)   

proceedings for a suspension order under section 121A of the

Housing Act 1985 (suspension of right to buy);

(e)   

proceedings under section 153A, 153B or 153D of the Housing

Act 1996 (injunctions against anti-social behaviour);

15

(f)   

proceedings for the attachment of a power of arrest to an

injunction by virtue of section 91(2) of the Anti-social Behaviour

Act 2003 or section 27(2) of the Police and Justice Act 2006

(proceedings under section 222 of the Local Government Act

1972: power of arrest attached to injunction);

20

(g)   

at a hearing at which a decision is made in relation to

proceedings within paragraphs (a) to (f), proceedings for

permission to appeal against that decision;

(h)   

such other proceedings as the Lord Chancellor may prescribe

by order.

25

(4)   

An authorisation for the purposes of this section must be in writing.

(5)   

The power to make an order under subsection (3)(h) is exercisable by

statutory instrument subject to annulment by resolution of either

House of Parliament.

(6)   

In subsection (3)(e) the reference to section 153A of the Housing Act

30

1996 is a reference to that section—

(a)   

as inserted by section 13 of the Anti-social Behaviour Act 2003,

or

(b)   

as substituted by section 26 of the Police and Justice Act 2006.

(7)   

In this section—

35

“dwelling-house” has the same meaning as in Part 4 of the

Housing Act 1985;

“housing management agreement” means an agreement under

section 27 of the Housing Act 1985 (including an agreement to

which section 27B(2) or (3) of that Act applies);

40

“housing management body” means a person who exercises

management functions of a local housing authority by virtue of

a housing management agreement;

“local housing authority” has the same meaning as in section 27 of

the Housing Act 1985;

45

“right of audience” means the right to appear before and address

a court, including the right to call and examine witnesses;

“right to conduct litigation” means the right—

 
 

Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc

105

 

(a)   

to issue proceedings before any court in England and

Wales,

(b)   

to commence, prosecute and defend such proceedings,

and

(c)   

to perform any ancillary functions in relation to such

5

proceedings (such as entering appearances to actions);

“secure tenancy” has the same meaning as in Part 4 of the Housing

Act 1985.”

Savings

192     

Powers of court in respect of rights of audience and conduct of litigation

10

(1)   

Nothing in this Act affects the power of any court in any proceedings to refuse

to hear a person (for reasons which apply to that person as an individual) who

would otherwise have a right of audience before the court in relation to those

proceedings.

(2)   

Where a court refuses to hear a person as mentioned in subsection (1), it must

15

give its reasons for refusing.

(3)   

Where—

(a)   

immediately before the commencement of section 13 (entitlement to

carry on reserved legal activities), or

(b)   

by virtue of any provision made by or under an enactment passed

20

subsequently,

   

a court does not permit the appearance of advocates, or permits the appearance

of advocates only with leave, no person may exercise a right of audience before

the court, in relation to any proceedings, solely by virtue of being entitled to do

so under this Act.

25

(4)   

But a court may not limit the right to appear before the court in any

proceedings to only some of those who are entitled to exercise that right by

virtue of this Act.

(5)   

A court may not limit the right to conduct litigation in relation to proceedings

before the court to only some of those who are entitled to exercise that right by

30

virtue of this Act.

(6)   

In this section “advocate”, in relation to any proceedings, means a person

exercising a right of audience as a representative of, or on behalf of, any party

to the proceedings.

193     

Solicitors to public departments and the City of London

35

(1)   

Nothing in this Act is to prejudice or affect any rights or privileges of—

(a)   

the Treasury Solicitor,

(b)   

the solicitor to any other public department,

(c)   

the solicitor to the Church Commissioners, or

(d)   

the solicitor to the Duchy of Cornwall.

40

(2)   

Nothing in this Act requires a person to whom subsection (1) applies, or any

clerk or officer appointed to act for such a person, to be entitled to carry on an

activity which is a reserved legal activity in any case where, by virtue of section

88(1) of the Solicitors Act 1974 (c. 47), it would not have been necessary for that

 
 

Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc

106

 

person to be admitted and enrolled and to hold a practising certificate under

that Act if this Act had not been passed.

(3)   

Nothing in this Act is to prejudice or affect any rights or privileges which

immediately before the commencement of this Act attached to the office of

Solicitor of the City of London.

5

(4)   

Nothing in section 17 (offence to pretend to be entitled) applies to a person to

whom subsection (1) applies, or any clerk or officer appointed to act for such a

person, or to the Solicitor of the City of London.

(5)   

A person who—

(a)   

exercises before any court a right of audience, or

10

(b)   

conducts litigation in relation to proceedings in any court,

   

by virtue of this section has a duty to the court in question to act with

independence in the interests of justice.

(6)   

That duty overrides any obligations which the person may have (otherwise

than under the criminal law) if it is inconsistent with them.

15

Pro bono representation

194     

Payments in respect of pro bono representation

(1)   

This section applies to proceedings in a civil court in which—

(a)   

a party to the proceedings (“P”) is or was represented by a legal

representative (“R”), and

20

(b)   

R’s representation of P is or was provided free of charge, in whole or in

part.

(2)   

This section applies to such proceedings even if P is or was also represented by

a legal representative not acting free of charge.

(3)   

The court may order any person to make a payment to the prescribed charity

25

in respect of R’s representation of P (or, if only part of R’s representation of P

was provided free of charge, in respect of that part).

(4)   

In considering whether to make such an order and the terms of such an order,

the court must have regard to—

(a)   

whether, had R’s representation of P not been provided free of charge,

30

it would have ordered the person to make a payment to P in respect of

the costs payable to R by P in respect of that representation, and

(b)   

if it would, what the terms of the order would have been.

(5)   

The court may not make an order under subsection (3) against a person

represented in the proceedings if the person’s representation was at all times

35

within subsection (6).

(6)   

Representation is within this subsection if it is—

(a)   

provided by a legal representative acting free of charge, or

(b)   

funded by the Legal Services Commission as part of the Community

Legal Service.

40

(7)   

Rules of court may make further provision as to the making of orders under

subsection (3), and may in particular—

 
 

Legal Services Bill [HL]
Part 8 — Miscellaneous provisions about lawyers etc

107

 

(a)   

provide that such orders may not be made in civil proceedings of a

description specified in the rules;

(b)   

make provision about the procedure to be followed in relation to such

orders;

(c)   

specify matters (in addition to those mentioned in subsection (4)) to

5

which the court must have regard in deciding whether to make such an

order, and the terms of any order.

(8)   

“The prescribed charity” means the charity prescribed by order made by the

Lord Chancellor.

(9)   

An order under subsection (8) may only prescribe a charity which—

10

(a)   

is registered in accordance with section 3A of the Charities Act 1993

(c. 10), and

(b)   

provides financial support to persons who provide, or organise or

facilitate the provision of, legal advice or assistance (by way of

representation or otherwise) which is free of charge.

15

(10)   

In this section—

“legal representative”, in relation to a party to proceedings, means a

person exercising a right of audience or conducting litigation on the

party’s behalf;

“civil court” means the civil division of the Court of Appeal, the High

20

Court, or any county court;

“free of charge” means otherwise than for or in expectation of fee, gain or

reward.

(11)   

The court may not make an order under subsection (3) in respect of

representation if (or to the extent that) it is provided before this section comes

25

into force.

Scotland

195     

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

(1)   

The Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) (“the 2007 Act”)

applies to—

30

(a)   

any element of a complaint relating to,

(b)   

the provision by a practitioner of,

the advice, services and activities mentioned in subsection (2) as it applies to

any other advice, services and activities provided by a practitioner.

(2)   

The advice, services and activities are—

35

(a)   

activities carried out by virtue of a group licence issued under section

22(1)(b) of the Consumer Credit Act 1974 (c. 39);

(b)   

activities of an insolvency practitioner within the meaning of Part 13 of

the Insolvency Act 1986 (c. 45);

(c)   

activities mentioned in paragraph (a) of paragraph 5(1) of Schedule 3 to

40

the Financial Services Act 1986 (c. 60);

(d)   

immigration advice or immigration services;

(e)   

regulated activity within the meaning of section 22 of the Financial

Services and Markets Act 2000 (c. 8), other than activity falling within

paragraph (f) below, in respect of which the Financial Services

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