Legal Services Bill [HL]

House of Lords

Session 2006 - 07
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Other Bills before Parliament

Legal Services Bill [HL]

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period
138

(c)
probate activities;
(d)
the administration of oaths.
      (3)
The authority conferred on a barrister by this paragraph is exercisable in
accordance with, and subject to, the regulatory arrangements of the General
Council of the Bar.
5
      (4)
A person is not authorised under sub-paragraph (1) unless the person has in
force a certificate issued by the General Council of the Bar authorising the
person to practise as a barrister.
5     (1)
During the transitional period, every registered European lawyer registered
with the Inns of Court and the General Council of the Bar is deemed to be
10
authorised by the General Council of the Bar to carry on activities which—
(a)
are within paragraph 4(2), and
(b)
the registered European lawyer is entitled to carry on under his
home professional title by virtue of the European regulations.
      (2)
The authority conferred on a registered European lawyer by virtue of this
15
paragraph is exercisable in accordance with, and subject to, the regulatory
arrangements of the General Council of the Bar (as they apply to the
registered European lawyer by virtue of the European regulations).
      (3)
In this paragraph—
“European regulations” means the European Communities (Lawyer’s
20
Practice) Regulations 2000 (S.I. 2000/1119);
“home professional title” and “registered European lawyer” have the
same meaning as in the European regulations.
6
During the transitional period members of the Bar not in actual practice are
to continue to have the rights conferred by section 102A(2) of the Patents Act
25
1977 (c. 37) (right of audience, etc in proceedings on appeal from the
comptroller).
Solicitors etc
7     (1)
During the transitional period—
(a)
every qualified solicitor,
30
(b)
every legal partnership, and
(c)
every body recognised under section 9 of the Administration of
Justice Act 1985 (c. 61) (incorporated practices) (“a recognised
body”),

is deemed to be authorised by the Law Society to carry on the activities in
35
sub-paragraph (2).
      (2)
Those activities are—
(a)
the exercise of a right of audience before every court in relation to all
proceedings;
(b)
the conduct of litigation in relation to every court and all
40
proceedings;
(c)
reserved instrument activities;
(d)
probate activities;
(e)
the administration of oaths.

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period
139

      (3)
The authority conferred on a qualified solicitor, legal partnership or
recognised body by this paragraph is exercisable in accordance with, and
subject to, the regulatory arrangements of the Law Society.
      (4)
In this paragraph—
“legal partnership” means a partnership in which a qualified solicitor,
5
a registered European Lawyer or a body recognised under section 9
of the Administration of Justice Act 1985 (c. 61) is permitted to
practise by virtue of rules made under that section or section 31 of the
Solicitors Act 1974 (c. 47);
“qualified solicitor” means a person who is qualified under section 1 of
10
the Solicitors Act 1974 to act as a solicitor;
“registered European lawyer” has the same meaning as in the European
Communities (Lawyer’s Practice) Regulations 2000 (S.I. 2000/1119).
8     (1)
During the transitional period, every registered European lawyer registered
with the Law Society is deemed to be authorised by the Law Society to carry
15
on activities which—
(a)
are within paragraph 7(2), and
(b)
the registered European lawyer is entitled to carry on under his
home professional title by virtue of the European regulations.
      (2)
The authority conferred on a registered European lawyer by virtue of this
20
paragraph is exercisable in accordance with, and subject to, the regulatory
arrangements of the Law Society (as they apply to the registered European
lawyer by virtue of the European regulations).
      (3)
In this paragraph—
“European regulations” means the European Communities (Lawyer’s
25
Practice) Regulations 2000 (S.I. 2000/1119);
“home professional title” and “registered European lawyer” have the
same meaning as in the European regulations.
9     (1)
During the transitional period, solicitors are to continue to have the rights
conferred on them by subsection (1) of section 102A of the Patents Act 1977
30
(c. 37) (rights of audience, etc in proceedings on appeal from the
comptroller).
      (2)
During that period, registered European lawyers are to continue to have the
rights conferred on them by that subsection by virtue of the European
regulations.
35
      (3)
In this paragraph “European regulations” and “registered European lawyer”
have the same meaning as in paragraph 8
Legal Executives
10    (1)
During the transitional period, a person authorised by the Institute of Legal
Executives to practise as a member of the profession of legal executives is
40
deemed to be authorised by that Institute to administer oaths.
      (2)
The authority conferred by sub-paragraph (1) is exercisable in accordance
with and subject to the regulatory arrangements of the Institute of Legal
Executives.

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period
140

      (3)
A person is not authorised under sub-paragraph (1) unless the person has in
force a certificate issued by the Institute of Legal Executives authorising the
person to practise as a legal executive.
Licensed conveyancers
11    (1)
During the transitional period every individual who holds a conveyancing
5
licence is deemed to be authorised by the Council for Licensed
Conveyancers to administer oaths.
      (2)
The authority conferred by sub-paragraph (1) is exercisable in accordance
with and subject to the regulatory arrangements of the Council.
      (3)
During that period, every conveyancing partnership and every body
10
recognised under section 32 of the Administration of Justice Act 1985 (c. 61)
(bodies corporate entitled to provide conveyancing services) is deemed to be
authorised by the Council—
(a)
to carry on conveyancing services, and
(b)
to administer oaths.
15
      (4)
The authority conferred by sub-paragraph (3) is exercisable in accordance
with and subject to—
(a)
in the case of a body recognised under section 32 of the
Administration of Justice Act 1985, any restriction imposed by virtue
of rules within section 32(3)(d) of that Act (rules restricting
20
conveyancing services carried on by recognised bodies), and
(b)
the regulatory arrangements of the Council.
      (5)
In this section “conveyancing partnership” means a partnership at least
some of the members of which are licensed conveyancers.
      (6)
For the purposes of this paragraph a conveyancing licence is to be treated as
25
not in force during any period when it is suspended.
Notaries public
12    (1)
During the transitional period, every duly certificated notary is deemed to
be authorised by the Master of the Faculties to carry on the activities in sub-
paragraph (2).
30
      (2)
Those activities are—
(a)
reserved instrument activities;
(b)
probate activities;
(c)
notarial activities;
(d)
the administration of oaths.
35
      (3)
The authority conferred by sub-paragraph (1) is exercisable in accordance
with and subject to the regulatory arrangements of the Master of the
Faculties.
      (4)
In this paragraph “duly certificated notary” means a notary who either—
(a)
has in force a practising certificate as a solicitor issued under the
40
Solicitors Act 1974 (c. 47), and is duly entered in the Court of
Faculties of the Archbishop of Canterbury in accordance with rules
made by the Master of the Faculties, or

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period
141

(b)
has in force a practising certificate as a public notary issued by the
said Court of Faculties in accordance with rules so made.
Patent attorneys
13    (1)
During the transitional period, every registered patent attorney is deemed
to be authorised by the Chartered Institute of Patent Attorneys to carry on
5
reserved instrument activities.
      (2)
During that period, every authorised patent attorney is deemed to be
authorised by the Chartered Institute of Patent Attorneys to administer
oaths.
      (3)
During that period, every patent attorney body is deemed to be authorised
10
by the Chartered Institute of Patent Attorneys to carry on the activities in
sub-paragraph (4).
      (4)
Those activities are any activities which are reserved legal activities within
sub-paragraph (5) and which—
(a)
if the body is a partnership, any partner who is a registered patent
15
attorney is authorised to carry on;
(b)
if the body is a body corporate, any director who is a registered
patent attorney is authorised to carry on.
      (5)
Those activities are—
(a)
the exercise of a right of audience;
20
(b)
the conduct of litigation;
(c)
reserved instrument activities;
(d)
the administration of oaths.
      (6)
The authority conferred by any of sub-paragraphs (1) to (3) is exercisable in
accordance with and subject to the regulatory arrangements of the
25
Chartered Institute of Patent Attorneys.
      (7)
In this paragraph—
“authorised patent attorney” means a registered patent attorney who is
authorised by the Chartered Institute of Patent Attorneys to carry on
one or both of the following activities—
30
(a)
the exercise of a right of audience;
(b)
the conduct of litigation;
“patent attorney body” means—
(a)
a partnership all the partners of which are registered patent
attorneys,
35
(b)
a body corporate all the directors of which are registered
patent attorneys,
(c)
a partnership or body corporate which satisfies the
conditions prescribed under section 279 of the Copyright,
Designs and Patents Act 1988 (c. 48), or
40
(d)
a body corporate to which section 276(4) of that Act applies;
“registered patent attorney” has the meaning given by section 275(1) of
that Act;

and, in the case of a patent attorney body to which section 276(4) of that Act
applies, the reference in sub-paragraph (4)(b) to a director includes a
45

Legal Services Bill [HL]
Schedule 5 — Authorised persons
Part 2 — Rights during transitional period
142

reference to the manager (within the meaning of section 276(4) of that Act)
of the company.
14    (1)
During the transitional period registered patent attorneys are to continue to
have the rights conferred by section 102A(2) of the Patents Act 1977 (c. 37)
and section 292 of the Copyright, Designs and Patents Act 1988 (c. 48).
5
      (2)
In this paragraph “registered patent attorney” has the same meaning as in
paragraph 13.
Trade mark attorneys
15    (1)
During the transitional period, every registered trade mark attorney is
deemed to be authorised by the Institute of Trade Mark Attorneys to carry
10
on reserved instrument activities.
      (2)
During that period, every authorised trade mark attorney is deemed to be
authorised by the Institute of Trade Mark Attorneys to administer oaths.
      (3)
During that period, every trade mark body is deemed to be authorised by
the Institute of Trade Mark Attorneys to carry on the activities in sub-
15
paragraph (4).
      (4)
Those activities are any activities which are reserved legal activities within
sub-paragraph (5) and which—
(a)
if the body is a partnership, any partner who is a registered trade
mark attorney is authorised to carry on, or
20
(b)
if the body is a body corporate, any director who is a registered trade
mark attorney is authorised to carry on.
      (5)
Those activities are—
(a)
the exercise of a right of audience;
(b)
the conduct of litigation;
25
(c)
reserved instrument activities;
(d)
the administration of oaths.
      (6)
The authority conferred by any of sub-paragraphs (1) to (3) is exercisable in
accordance with and subject to the regulatory arrangements of the Institute
of Trade Mark Attorneys.
30
      (7)
In this paragraph—
“authorised trade mark attorney” means a registered trade mark
attorney who is authorised by the Institute of Trade Mark Attorneys
to carry on one or both of the following activities—
(a)
the exercise of a right of audience;
35
(b)
the conduct of litigation;
“trade mark body” means—
(a)
a partnership all the partners of which are registered trade
mark attorneys,
(b)
a body corporate all the directors of which are registered
40
trade mark attorneys, or
(c)
a partnership or body corporate which satisfies the
conditions prescribed under section 85 of the Trade Marks
Act 1994 (c. 26);

Legal Services Bill [HL]
Schedule 6 — Alteration of reserved legal activities
143

“registered trade mark attorney” has the same meaning as in the Trade
Marks Act 1994 (c. 26).
Part 3
Interpretation
16
In this Schedule—
5
“the appointed day” means the day appointed for the coming into force
of section 13 (entitlement to carry on a reserved legal activity);
“conveyancing licence” has the meaning given by paragraph 2.
Schedule 6
Sections 23 and 25

Alteration of reserved legal activities
10
Introductory
1
In this Schedule, in relation to an activity—
“section 23 investigation” means an investigation held with a view to
determining whether or not the Board should make a
recommendation in respect of the activity for the purposes of section
15
23 (recommendations and orders to extend the reserved legal
activities);
“section 25 investigation” means an investigation held with a view to
determining whether or not the Board should make a
recommendation in respect of the activity for the purposes of section
20
25 (recommendations that an activity should cease to be a reserved
legal activity).
Requests for Board to hold a full investigation
2     (1)
A person may—
(a)
request the Board to hold a section 23 investigation in respect of an
25
activity, or
(b)
request the Board to hold a section 25 investigation in respect of an
activity.
      (2)
A request under sub-paragraph (1) must be in writing and specify the
activity to which it relates.
30
      (3)
In the case of a request for a section 23 investigation, the activity in respect
of which the request is made must be a legal activity.
Board’s duty to hold preliminary inquiries in certain cases
3     (1)
This paragraph applies where the Board receives a request under paragraph
2, in respect of an activity, from—
35
(a)
the Secretary of State,
(b)
the OFT,
(c)
the Consumer Panel, or
(d)
the Lord Chief Justice.

Legal Services Bill [HL]
Schedule 6 — Alteration of reserved legal activities
144

      (2)
The Board must—
(a)
carry out such inquiries as it considers appropriate to enable it to
determine whether it is appropriate to hold a section 23 investigation
or, as the case may be, a section 25 investigation in respect of the
activity, and
5
(b)
make that determination within the preliminary inquiry period.
      (3)
“The preliminary inquiry period” means the period of 3 months beginning
with the day on which the request under paragraph 2 was received by the
Board.
      (4)
The Board may, before the end of the preliminary inquiry period in relation
10
to a request, issue a notice extending that period by a period specified in the
notice.
      (5)
More than one notice may be issued under sub-paragraph (4), but the total
preliminary inquiry period must not exceed 4 months.
      (6)
A notice under sub-paragraph (4) must state the Board’s reasons for
15
extending the preliminary inquiry period.
      (7)
The Board must publish a notice issued under sub-paragraph (4).
Board’s power to hold preliminary inquiries in other cases
4     (1)
The Board may—
(a)
where it receives a request under paragraph 2 to which paragraph 3
20
does not apply, or
(b)
in any other case where it considers it appropriate to do so,

carry out such inquiries as it considers appropriate to enable it to determine
whether it is appropriate to hold a section 23 investigation or a section 25
investigation in respect of an activity.
25
      (2)
In the case of a section 23 investigation, that activity must be a legal activity.
Advice
5     (1)
Before determining whether it is appropriate to hold a section 23
investigation or a section 25 investigation in respect of an activity, the Board
may seek the advice of one or both of the following bodies—
30
(a)
the OFT;
(b)
the Consumer Panel.
      (2)
The OFT or the Consumer Panel must, if its advice is sought, give the Board
such advice as it thinks fit, within such reasonable period as the Board may
specify.
35
      (3)
In deciding what advice to give—
(a)
the OFT must, in particular, consider whether making an order
under section 23 or (as the case may be) provision in accordance with
a recommendation under section 25, in respect of the activity would
(or would be likely to) prevent, restrict or distort competition within
40
the market for reserved legal services to any significant extent, and
(b)
the Consumer Panel must have regard to the likely impact which
making that order or (as the case may be) provision would have on
consumers.