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Legal Services Bill [HL]


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

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10      

Representations by the Consumer Panel

(1)   

The Board must consider any representations made to it by the Consumer

Panel.

(2)   

If the Board disagrees with a view expressed, or proposal made, in the

representations, it must give the Consumer Panel a notice to that effect stating

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its reasons for disagreeing.

(3)   

The Consumer Panel may publish such information as it thinks fit about any

representations made by it to the Board.

(4)   

Where the Consumer Panel publishes information about any representations

made by it, the Board must publish any notice it gives under subsection (2) in

10

respect of those representations.

11      

Advice and research functions of the Consumer Panel

(1)   

The Consumer Panel may, at the request of the Board—

(a)   

carry out research for the Board;

(b)   

give advice to the Board.

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(2)   

The Board must consider any advice given and the results of any research

carried out under this section.

(3)   

The Consumer Panel may publish such information as it thinks fit about advice

it gives, and about the results of research carried out by it, under this section.

Part 3

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Reserved legal activities

Reserved legal activities

12      

Meaning of “reserved legal activity” and “legal activity”

(1)   

In this Act “reserved legal activity” means—

(a)   

the exercise of a right of audience;

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(b)   

the conduct of litigation;

(c)   

reserved instrument activities;

(d)   

probate activities;

(e)   

notarial activities;

(f)   

the administration of oaths.

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(2)   

Schedule 2 makes provision about what constitutes each of those activities.

(3)   

In this Act “legal activity” means—

(a)   

an activity which is a reserved legal activity within the meaning of this

Act as originally enacted, and

(b)   

any other activity which consists of one or both of the following—

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(i)   

the provision of legal advice or assistance in connection with the

application of the law or with any form of resolution of legal

disputes;

 
 

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

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(ii)   

the provision of representation in connection with any matter

concerning the application of the law or any form of resolution

of legal disputes.

(4)   

But “legal activity” does not include any activity of a judicial or quasi-judicial

nature (including acting as a mediator).

5

(5)   

For the purposes of subsection (3) “legal dispute” includes a dispute as to any

matter of fact the resolution of which is relevant to determining the nature of

any person’s legal rights or liabilities.

(6)   

Section 24 makes provision for adding legal activities to the reserved legal

activities.

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Carrying on the activities

13      

Entitlement to carry on a reserved legal activity

(1)   

The question whether a person is entitled to carry on an activity which is a

reserved legal activity is to be determined solely in accordance with the

provisions of this Act.

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(2)   

A person is entitled to carry on an activity (“the relevant activity”) which is a

reserved legal activity where—

(a)   

the person is an authorised person in relation to the relevant activity, or

(b)   

the person is an exempt person in relation to that activity.

(3)   

Subsection (2) is subject to section 23 (transitional protection for non-

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commercial bodies).

(4)   

Nothing in this section or section 23 affects section 84 of the Immigration and

Asylum Act 1999 (c. 33) (which prohibits the provision of immigration advice

and immigration services except by certain persons).

Offences

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14      

Offence to carry on a reserved legal activity if not entitled

(1)   

It is an offence for a person to carry on an activity (“the relevant activity”)

which is a reserved legal activity unless that person is entitled to carry on the

relevant activity.

(2)   

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

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accused to show that the accused did not know, and could not reasonably have

been expected to know, that the offence was being committed.

(3)   

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

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

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(b)   

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

2 years or a fine (or both).

(4)   

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

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

 
 

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

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(5)   

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

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

reference in subsection (3)(a) to 12 months is to be read as a reference to 6

months.

15      

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

5

(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—

(a)   

is an employee of a person (“P”), and

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(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

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

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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.

(6)   

Where P is an independent trade union, persons provided with relevant

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services by virtue of—

(a)   

their membership or former membership of P, or

(b)   

another person’s membership or former membership of P,

   

do not constitute the public or a section of the public.

(7)   

Subject to that, the Lord Chancellor may by order make provision about—

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(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.

(8)   

The Lord Chancellor may make an order under subsection (7) only on the

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recommendation of the Board.

(9)   

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

(1)   

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

35

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”)

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

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(b)   

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

14.

 
 

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

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(3)   

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

references to a manager of P.

(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

(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

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).

10

(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

15

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—

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(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—

25

(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

30

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

35

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

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

reserved legal activity.

 
 

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

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(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)

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

5

events—

(a)   

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

time falls;

(b)   

the time from which the relevant approved regulator determines this

subsection is to cease to apply to A;

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(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

15

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

(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—

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(a)   

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

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.

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19      

Exempt persons

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

30

(1)   

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

“approved regulator”;

“relevant approved regulator”.

(2)   

“Approved regulator” means—

(a)   

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

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

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—

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(a)   

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

Schedule 4 in relation to that reserved legal activity, or

(b)   

where the approved regulator is the Board, it is designated in relation

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

 
 

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

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(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

activity which is a reserved legal activity.

(5)   

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

Board.

5

   

In that Schedule—

(a)   

Part 1 designates certain bodies as approved regulators in relation to

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,

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and

(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

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regulator.

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,

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(b)   

its arrangements (if any) for authorising persons to provide

immigration advice or immigration services,

(c)   

its practice rules,

(d)   

its conduct rules,

(e)   

its disciplinary arrangements in relation to regulated persons

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(including its discipline rules),

(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),

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

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),

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

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

40

mitigating losses or hardship suffered by persons in consequence of—

(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

45

persons, and

 
 

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

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(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

5

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

10

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;

15

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

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

regulated persons;

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

(a)   

any rules or regulations relating to—

20

(i)   

the education and training which persons must receive,

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 carry on an

25

activity which is a reserved legal activity,

(b)   

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

30

respect of them,

   

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

immigration advice or immigration services, and

(c)   

any other rules or regulations relating to the education and

training which regulated persons must receive or any other

35

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

persons which consists of or includes—

(a)   

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

40

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.

(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

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person.

 
 

 
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