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Legal Services Bill [HL]


Legal Services Bill [HL]
Schedule 2 — The reserved legal activities

126

 

place insert—

“The Legal Services Board.”

      (2)  

In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification

Act 1975 (c. 25) (bodies of which all members are disqualified) at the

appropriate place insert—

5

“The Legal Services Board.”

Freedom of information

31         

In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (c. 36) (other

public bodies and offices which are public authorities) at the appropriate

place insert—

10

“The Legal Services Board.”

Public records

32         

In Schedule 1 to the Public Records Act 1958 (c. 51) (definition of public

records) at the appropriate place in Part 2 of the Table at the end of

paragraph 3 insert—

15

“The Legal Services Board.”

Exemption from liability in damages

33    (1)  

This paragraph applies to—

(a)   

the Board,

(b)   

a member of the Board,

20

(c)   

a member of the Board’s staff appointed under paragraph 14,

(d)   

a person to whom the Board (in its capacity as an approved

regulator) delegates any of its functions by virtue of provision made

under section 64(2)(k), and

(e)   

a person to whom the Board (in its capacity as a licensing authority)

25

delegates any of its functions by virtue of section 73(3)(a).

      (2)  

A person to whom this paragraph applies is not liable in damages for

anything done or omitted in the exercise or purported exercise of the

functions of the Board conferred by or by virtue of this or any other

enactment.

30

      (3)  

But sub-paragraph (1) does not apply—

(a)   

if it is shown that the act or omission was in bad faith, or

(b)   

so as to prevent an award of damages made in respect of an act or

omission on the ground that the act or omission was unlawful as a

result of section 6(1) of the Human Rights Act 1998 (c. 42).

35

Schedule 2

Section 12

 

The reserved legal activities

Introduction

1          

This Schedule makes provision about the reserved legal activities.

 

 

Legal Services Bill [HL]
Schedule 2 — The reserved legal activities

127

 

2          

In this Schedule “the appointed day” means the day appointed for the

coming into force of section 13 (entitlement to carry on reserved legal

activities).

Rights of audience

3     (1)  

A “right of audience” means the right to appear before and address a court,

5

including the right to call and examine witnesses.

      (2)  

But a “right of audience” does not include a right to appear before or address

a court, or to call or examine witnesses, in relation to any particular court or

in relation to particular proceedings, if immediately before the appointed

day no restriction was placed on the persons entitled to exercise that right.

10

Conduct of litigation

4     (1)  

The “conduct of litigation” means—

(a)   

the issuing of proceedings before any court in England and Wales,

(b)   

the commencement, prosecution and defence of such proceedings,

and

15

(c)   

the performance of any ancillary functions in relation to such

proceedings (such as entering appearances to actions).

      (2)  

But the “conduct of litigation” does not include any activity within

paragraphs (a) to (c) of sub-paragraph (1), in relation to any particular court

or in relation to any particular proceedings, if immediately before the

20

appointed day no restriction was placed on the persons entitled to carry on

that activity.

Reserved instrument activities

5     (1)  

“Reserved instrument activities” means—

(a)   

preparing any instrument of transfer or charge for the purposes of

25

the Land Registration Act 2002 (c. 9);

(b)   

making an application or lodging a document for registration under

that Act;

(c)   

preparing any other instrument relating to real or personal estate for

the purposes of the law of England and Wales or instrument relating

30

to court proceedings in England and Wales.

      (2)  

But “reserved instrument activities” does not include the preparation of an

instrument relating to any particular court proceedings if, immediately

before the appointed day, no restriction was placed on the persons entitled

to carry on that activity.

35

      (3)  

In this paragraph “instrument” includes a contract for the sale or other

disposition of land (except a contract to grant a short lease), but does not

include—

(a)   

a will or other testamentary instrument,

(b)   

an agreement not intended to be executed as a deed, other than a

40

contract that is included by virtue of the preceding provisions of this

sub-paragraph,

(c)   

a letter or power of attorney, or

(d)   

a transfer of stock containing no trust or limitation of the transfer.

 

 

Legal Services Bill [HL]
Schedule 3 — Exempt persons

128

 

      (4)  

In this paragraph a “short lease” means a lease such as is referred to in

section 54(2) of the Law of Property Act 1925 (c. 20) (short leases).

Probate activities

6     (1)  

“Probate activities” means preparing any probate papers for the purposes of

the law of England and Wales or in relation to any proceedings in England

5

and Wales.

      (2)  

In this paragraph “probate papers” means papers on which to found or

oppose—

(a)   

a grant of probate, or

(b)   

a grant of letters of administration.

10

Notarial activities

7     (1)  

“Notarial activities” means activities which, immediately before the

appointed day, were customarily carried on by virtue of enrolment as a

notary in accordance with section 1 of the Public Notaries Act 1801 (c. 79).

      (2)  

Sub-paragraph (1) does not include activities carried on—

15

(a)   

by virtue of section 22 or 23 of the Solicitors Act 1974 (c. 47) (reserved

instrument activities and probate activities), or

(b)   

by virtue of section 113 of the Courts and Legal Services Act 1990

(c. 41)(administration of oaths).

Administration of oaths

20

8          

The “administration of oaths” means the exercise of the powers conferred on

a commissioner for oaths by—

(a)   

the Commissioners for Oaths Act 1889 (c. 10);

(b)   

the Commissioners for Oaths Act 1891 (c. 50);

(c)   

section 24 of the Stamp Duties Management Act 1891 (c. 38).

25

Schedule 3

Section 19

 

Exempt persons

Rights of audience

1     (1)  

This paragraph applies to determine whether a person is an exempt person

for the purpose of exercising a right of audience before a court in relation to

30

any proceedings (subject to paragraph 7).

      (2)  

The person is exempt if the person—

(a)   

is not an authorised person in relation to that activity, but

(b)   

has a right of audience granted by that court in relation to those

proceedings.

35

      (3)  

The person is exempt if the person—

(a)   

is not an authorised person in relation to that activity, but

(b)   

has a right of audience before that court in relation to those

proceedings granted by or under any enactment.

 

 

Legal Services Bill [HL]
Schedule 3 — Exempt persons

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      (4)  

The person is exempt if the person is the Attorney General or the Solicitor

General and—

(a)   

the name of the person is on the roll kept by the Law Society under

section 6 of the Solicitors Act 1974 (c. 47), or

(b)   

the person has been called to the Bar by an Inn of Court.

5

      (5)  

The person is exempt if the person is the Advocate General for Scotland and

is admitted—

(a)   

as a solicitor in Scotland under section 6 of the Solicitors (Scotland)

Act 1980 (c. 46), or

(b)   

to practise as an advocate before the courts of Scotland.

10

      (6)  

The person is exempt if the person—

(a)   

is a party to those proceedings, and

(b)   

would have a right of audience, in the person’s capacity as such a

party, if this Act had not been passed.

      (7)  

The person is exempt if—

15

(a)   

the person is an individual whose work includes assisting in the

conduct of litigation,

(b)   

the person is assisting in the conduct of litigation—

(i)   

under instructions given (either generally or in relation to the

proceedings) by an individual to whom sub-paragraph (8)

20

applies, and

(ii)   

under the supervision of that individual, and

(c)   

the proceedings are being heard in chambers in the High Court or a

county court and are not reserved family proceedings.

      (8)  

This sub-paragraph applies to—

25

(a)   

any authorised person in relation to an activity which constitutes the

conduct of litigation;

(b)   

any person who by virtue of section 193 is not required to be entitled

to carry on such an activity.

      (9)  

The person is an exempt person in relation to the exercise of a right of

30

audience in proceedings on an appeal from the Comptroller-General of

Patents, Designs and Trade Marks to the Patents Court under the Patents Act

1977 (c. 37), if the person is a solicitor of the Court of Judicature of Northern

Ireland.

     (10)  

For the purposes of this paragraph—

35

“family proceedings” has the same meaning as in the Matrimonial and

Family Proceedings Act 1984 (c. 42) and also includes any other

proceedings which are family proceedings for the purposes of the

Children Act 1989 (c. 41);

“reserved family proceedings” means such category of family

40

proceedings as the Lord Chancellor may, after consulting the

President of the Law Society and with the concurrence of the

President of the Family Division, by order prescribe;

           

and any order made under section 27(9) of the Courts and Legal Services Act

1990 (c. 41) before the day appointed for the coming into force of this

45

paragraph is to have effect on and after that day as if it were an order made

under this sub-paragraph.

 

 

Legal Services Bill [HL]
Schedule 3 — Exempt persons

130

 

Conduct of litigation

2     (1)  

This paragraph applies to determine whether a person is an exempt person

for the purpose of carrying on any activity which constitutes the conduct of

litigation in relation to any proceedings (subject to paragraph 7).

      (2)  

The person is exempt if the person—

5

(a)   

is not an authorised person in relation to that activity, but

(b)   

has a right to conduct litigation granted by a court in relation to those

proceedings.

      (3)  

The person is exempt if the person—

(a)   

is not an authorised person in relation to that activity, but

10

(b)   

has a right to conduct litigation in relation to those proceedings

granted by or under any enactment.

      (4)  

The person is exempt if the person—

(a)   

is a party to those proceedings, and

(b)   

would have a right to conduct the litigation, in the person’s capacity

15

as such a party, if this Act had not been passed.

      (5)  

The person is an exempt person in relation to any activity which is carried

on in or in connection with proceedings on an appeal from the Comptroller-

General of Patents, Designs and Trade Marks to the Patents Court under the

Patents Act 1977 (c. 37), if the person is a solicitor of the Court of Judicature

20

of Northern Ireland.

Reserved instrument activities

3     (1)  

This paragraph applies to determine whether a person is an exempt person

for the purpose of carrying on any activity which constitutes reserved

instrument activities (subject to paragraph 7).

25

      (2)  

The person is exempt if the person prepares the instruments or applications

in the course of the person’s duty as a public officer.

      (3)  

The person (“E”) is exempt if—

(a)   

E is an individual,

(b)   

E carries on the activity at the direction and under the supervision of

30

another individual (“P”),

(c)   

when E does so, P and E are connected, and

(d)   

P is entitled to carry on the activity, otherwise than by virtue of sub-

paragraph (10).

      (4)  

For the purposes of sub-paragraph (3), P and E are connected if—

35

(a)   

P is E’s employer,

(b)   

P is a fellow employee of E,

(c)   

P is a manager or employee of a body which is an authorised person

in relation to the activity, and E is also a manager or employee of that

body.

40

      (5)  

If the person is an accredited person, the person is exempt to the extent that

the activity consists of the preparation of any instrument—

 

 

Legal Services Bill [HL]
Schedule 3 — Exempt persons

131

 

(a)   

which creates, or which the person believes on reasonable grounds

will create, a farm business tenancy (within the meaning of the

Agricultural Tenancies Act 1995 (c. 8)), or

(b)   

which relates to an existing tenancy which is, or which the person

believes on reasonable grounds to be, such a tenancy.

5

      (6)  

In sub-paragraph (5) “accredited person” means a person who is—

(a)   

a Fellow of the Central Association of Agricultural Valuers, or

(b)   

a Member or Fellow of the Royal Institution of Chartered Surveyors.

      (7)  

The person is exempt to the extent that the activity carried on by the person

is also a reserved legal activity within sub-paragraph (8) and the person is—

10

(a)   

authorised to carry on that activity (other than under Part 5) by a

relevant approved regulator in relation to the activity,

(b)   

authorised to carry on that activity by a licence under Part 5, or

(c)   

an exempt person in relation to that activity by virtue of paragraph 1

or 2 of this Schedule.

15

      (8)  

The activities are—

(a)   

the exercise of a right of audience;

(b)   

the conduct of litigation.

      (9)  

The person is exempt if the person is employed merely to engross the

instrument or application.

20

     (10)  

The person is exempt if the person is an individual who carries on the

activity otherwise than for, or in expectation of, any fee, gain or reward.

     (11)  

The person is exempt if—

(a)   

the person is a person qualified to practise as a solicitor in Scotland

in accordance with section 4 of the Solicitors (Scotland) Act 1980

25

(c. 46), and

(b)   

the reserved instrument activities fall within paragraph 5(1)(c) of

Schedule 2 (preparation of certain instruments relating to real or

personal property or legal proceedings).

Probate activities

30

4     (1)  

This paragraph applies to determine whether a person is an exempt person

for the purpose of carrying on any activity which constitutes probate

activities (subject to paragraph 7).

      (2)  

The person (“E”) is an exempt person if—

(a)   

E is an individual,

35

(b)   

E provides the probate activities at the direction and under the

supervision of another individual (“P”),

(c)   

when E does so, P and E are connected, and

(d)   

P is entitled to carry on the activity, otherwise than by virtue of sub-

paragraph (4).

40

      (3)  

For the purposes of sub-paragraph (2), P and E are connected if—

(a)   

P is E’s employer,

(b)   

P is a fellow employee of E,

 

 

Legal Services Bill [HL]
Schedule 3 — Exempt persons

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(c)   

P is a manager or employee of a body which is an authorised person

in relation to the activity, and E is also a manager or employee of that

body.

      (4)  

The person is exempt if the person is an individual who carries on the

activity otherwise than for, or in expectation of, any fee, gain or reward.

5

Notarial activities

5     (1)  

This paragraph applies to determine whether a person is an exempt person

for the purpose of carrying on any activity which constitutes notarial

activities (subject to paragraph 7).

      (2)  

The person is exempt if the person is not an authorised person in relation to

10

that activity under this Act, but is authorised to carry on that activity by or

by virtue of any other enactment.

      (3)  

The person is exempt if section 14 of the Public Notaries Act 1801 (c. 79)

applies to the person, and—

(a)   

where that section applies by virtue of the person holding or

15

exercising an office or appointment, the person carries on the activity

for ecclesiastical purposes;

(b)   

where that section applies by virtue of the person performing a

public duty or service under government, the person carries on the

activity in the course of performing that duty or service.

20

      (4)  

The person is exempt if the person is an individual who carries on the

notarial activities otherwise than for or in expectation of a fee, gain or

reward.

Administration of oaths

6     (1)  

This paragraph applies to determine whether a person is an exempt person

25

for the purpose of carrying on any activity which constitutes the

administration of oaths (subject to paragraph 7).

      (2)  

The person is exempt if the person is not an authorised person in relation to

that activity under this Act, but is authorised to carry on that activity by or

by virtue of any other enactment.

30

      (3)  

The person is exempt if the person has a commission under section 1(1) of

the Commissioners for Oaths Act 1889 (c. 10).

European lawyers

7          

A European lawyer (within the meaning of the European Communities

(Services of Lawyers) Order 1978 (S.I. 1978/1910)) is an exempt person for

35

the purposes of carrying on an activity which is a reserved legal activity and

which the European lawyer is entitled to carry on by virtue of that order.

Employers etc acting through exempt person

8     (1)  

This paragraph applies where—

(a)   

a person (“P”) carries on an activity (“the relevant activity”) which is

40

a reserved legal activity,

 

 

 
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