House of Lords portcullis
House of Lords
Session 2006 - 07
Internet Publications
Other Bills before Parliament

Legal Services Bill [HL]


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

96

 

179     

Claims management services

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

29) (claims management services).

Advocates and litigators

180     

Duties of advocates and litigators

5

(1)   

This section applies to a person who—

(a)   

exercises before any court a right of audience, or

(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

10

with independence in the interests of justice.

(3)   

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

person by section 169(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

15

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

(5)   

The relevant authorising body is—

(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

20

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

authority, the Board.

181     

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

25

description of employment.

(2)   

Qualification regulations or conduct rules of the approved regulator by whom

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—

30

(i)   

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

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

(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

35

activity, and

(b)   

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

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

 
 

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

97

 

Legal professional privilege

182     

Legal professional privilege

(1)   

Subsection (2) applies to any communication made to or by an individual (“P”)

who is not a barrister or solicitor at any time when P is—

(a)   

providing advocacy services as an authorised person in relation to the

5

exercise of rights of audience,

(b)   

providing litigation services as an authorised person in relation to the

conduct of litigation,

(c)   

providing conveyancing services as an authorised person in relation to

reserved instrument activities, or

10

(d)   

providing probate services as an authorised person in relation to

probate activities.

(2)   

Any such communication is, in any legal proceedings, to be privileged from

disclosure in like manner as if P had at all material times been acting as P’s

client’s solicitor.

15

(3)   

Subsection (4) applies where—

(a)   

a communication is made to or by a licensed body (“B”) at a time when

the body is providing services to a client, and

(b)   

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

(i)   

is a relevant lawyer, or

20

(ii)   

acts at the direction and under the supervision of a relevant

lawyer (“the supervisor”).

(4)   

The communication is, in any legal proceedings, to be privileged from

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

disclosure if—

25

(a)   

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

the supervisor,

(b)   

the communication had been to or by E, and

(c)   

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

relevant lawyer, of the supervisor.

30

(5)   

“Relevant lawyer” means an individual who is—

(a)   

a solicitor;

(b)   

a barrister;

(c)   

a solicitor in Scotland;

(d)   

an advocate in Scotland;

35

(e)   

a solicitor of the Court of Judicature of Northern Ireland;

(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

40

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

(i)   

entitled to carry on an activity which is a reserved legal activity by

virtue of paragraph 7 of Schedule 3.

(6)   

In this section—

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

45

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

 
 

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

98

 

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

5

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

10

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 is privileged from disclosure.

15

Savings

183     

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

(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

20

proceedings.

(2)   

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

give its reasons for refusing.

(3)   

Where—

(a)   

immediately before the commencement of section 13 (entitlement to

25

carry on reserved legal activities), or

(b)   

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

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

30

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

so under this Act.

(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.

35

(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

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

40

to the proceedings.

184     

Solicitors to public departments and the City of London

(1)   

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

(a)   

the Treasury Solicitor,

 
 

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

99

 

(b)   

the solicitor to any other public department,

(c)   

the solicitor to the Church Commissioners, or

(d)   

the solicitor to the Duchy of Cornwall.

(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

5

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

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

10

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

Solicitor of the City of London.

(4)   

Nothing in section 16 (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.

15

(5)   

A person who—

(a)   

exercises before any court a right of audience, or

(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.

20

(6)   

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

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

Pro bono representation

185     

Payments in respect of pro bono representation

(1)   

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

25

(a)   

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

representative (“R”), and

(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

30

a legal representative not acting free of charge.

(3)   

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

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,

35

the court must have regard to—

(a)   

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

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.

40

(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

within subsection (6).

 
 

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

100

 

(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.

(7)   

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

5

subsection (3), and may in particular—

(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;

10

(c)   

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

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

Secretary of State.

15

(9)   

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

(a)   

is registered under section 3 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.

20

(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

25

Court, or any county court;

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

reward.

(11)   

This section applies only in relation to proceedings commenced after it comes

into force.

30

Scotland

186     

Application of the Legal Profession and Legal Aid (Scotland) Act 2006

(1)   

The Legal Profession and Legal Aid (Scotland) Act 2006 (“the 2006 Act”)

applies to—

(a)   

any element of a complaint relating to,

35

(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—

(a)   

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

40

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

the Financial Services Act 1986 (c. 60);

45

 
 

Legal Services Bill [HL]
Part 9 — General

101

 

(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

Authority has by virtue of Part 20 of that Act arranged for its regulatory

5

role to be carried out by the Law Society of Scotland;

(f)   

exempt regulated activities within the meaning of section 325(2) of the

Financial Services and Markets Act 2000.

(3)   

In subsection (1), “complaint” and “practitioner” have the same meaning as in

Part 1 of the 2006 Act.

10

(4)   

Omit section 47 of the 2006 Act (advice services and activities to which Act does

not apply).

(5)   

Schedule 20 contains minor and consequential amendments in connection with

the application of the 2006 Act by virtue of this section.

187     

Scottish legal services ombudsman: functions

15

(1)   

The functions of the Scottish legal services ombudsman cease to be exercisable

in relation to the advice, services and activities mentioned in section 186(2).

(2)   

In the Immigration and Asylum Act 1999 (c. 33)—

(a)   

in section 86(4)(c) (designated professional bodies), for “Scottish Legal

Services Ombudsman” substitute “Scottish Legal Complaints

20

Commission”, and

(b)   

in paragraph 4(2)(c) of Schedule 5 (the Immigration Services

Commissioner), for “Scottish Legal Services Ombudsman” substitute

“Scottish Legal Complaints Commission”.

Part 9

25

General

Offences

188     

Offences committed by bodies corporate and unincorporated bodies

(1)   

Where an offence committed by a body corporate is proved to have been

committed with the consent or connivance of or to be attributable to any

30

neglect on the part of an officer of the body corporate, that officer (as well as

the body corporate) is guilty of the offence and is liable to be proceeded against

and punished accordingly.

(2)   

Where the affairs of a body corporate are managed by its members, subsection

(1) applies in relation to the acts and defaults of a member in connection with

35

the member’s functions of management as it applies to an officer of the body

corporate.

(3)   

Proceedings for an offence alleged to have been committed by an

unincorporated body are to be brought in the name of that body (and not in

that of any of its members) and, for the purposes of any such proceedings, any

40

rules of court relating to the service of documents have effect as if that body

were a corporation.

 
 

Legal Services Bill [HL]
Part 9 — General

102

 

(4)   

A fine imposed on an unincorporated body on its conviction of an offence is to

be paid out of the funds of that body.

(5)   

If an unincorporated body is charged with an offence, section 33 of the

Criminal Justice Act 1925 (c. 86) and Schedule 3 to the Magistrates’ Courts Act

1980 (c. 43) (procedure on charge of an offence against a corporation) have

5

effect in like manner as in the case of a corporation so charged.

(6)   

Where an offence committed by an unincorporated body (other than a

partnership) is proved to have been committed with the consent or connivance

of, or to be attributable to any neglect on the part of, any officer of the body or

any member of its governing body, that officer or member as well as the

10

unincorporated body is guilty of the offence and liable to be proceeded against

and punished accordingly.

(7)   

Where an offence committed by a partnership is proved to have been

committed with the consent or connivance of, or to be attributable to any

neglect on the part of, a partner, that partner as well as the partnership is guilty

15

of the offence and liable to be proceeded against and punished accordingly.

(8)   

In this section—

“offence” means an offence under this Act;

“officer”, in relation to a body corporate, means—

(a)   

any director, secretary or other similar officer of the body

20

corporate, or

(b)   

any person who was purporting to act in any such capacity.

189     

Local weights and measures authorities

(1)   

A local weights and measures authority may institute proceedings for an

offence under section 14 if the activity which it is alleged that the accused was

25

not entitled to carry on constitutes reserved instrument activities.

(2)   

In this section—

“relevant offence” means an offence in relation to which proceedings may

be instituted by virtue of subsection (1);

“weights and measures officer” means an officer of a local weights and

30

measures authority who is authorised by the authority to exercise the

powers conferred by subsection (3).

(3)   

A weights and measures officer who has reasonable cause to suspect that a

relevant offence may have been committed may, at any reasonable time—

(a)   

enter any premises which are not used solely as a dwelling;

35

(b)   

require any officer, agent or other competent person on the premises

who is, or may be, in possession of information relevant to an

investigation of the suspected offence to provide such information;

(c)   

require the production of any document which may be relevant to such

an investigation;

40

(d)   

take copies, or extracts, of any such documents;

(e)   

seize and retain any document which the weights and measures officer

has reason to believe may be required as evidence in proceedings for a

relevant offence.

(4)   

Any person exercising a power given by subsection (3) must, if asked to do so,

45

produce evidence that that person is a weights and measures officer.

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2006
Revised 24 November 2006