Legal Services Act 2007
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| Legal Services Act 2007 | |
| United Kingdom Parliament | |
| Long title: | An Act to make provision for the establishment of the Legal Services Board and in respect of its functions; to make provision for, and in connection with, the regulation of persons who carry on certain legal activities; to make provision for the establishment of the Office for Legal Complaints and for a scheme to consider and determine legal complaints; to make provision about claims management services and about immigration advice and immigration services; to make provision in respect of legal representation provided free of charge; to make provision about the application of the Legal Profession and Legal Aid (Scotland) Act 2007; to make provision about the Scottish legal services ombudsman; and for connected purposes. |
| Statute book chapter: | 2007 c. 29 |
| Introduced by: | Lord Falconer Secretary of State for Constitutional Affairs, 23 November 2006 |
| Territorial extent: | England and Wales[1] |
| Dates | |
| Date of Royal Assent: | 30 October 2007 |
| Commencement: | 7 March 2008[2] |
| Repeal date: | — |
| Other legislation | |
| Amendments: | — |
| Related legislation: | — |
| Repealing legislation: | — |
| Status: Not fully in force | |
| Text of statute as originally enacted | |
| Official text of the statute as amended and in force today within the United Kingdom, from the UK Statute Law Database | |
| History of passage through parliament | |
The Legal Services Act 2007 is an Act of the Parliament of the United Kingdom that seeks to liberalise and regulate the market for legal services in England and Wales, to encourage more competition and to provide a new route for consumer complaints.[3]
[edit] Regulatory objectives
Section 1 of the Act defines eight regulatory objectives:[4]
- Protecting and promoting the public interest;
- Supporting the constitutional principle of the rule of law;
- Improving access to justice;
- Protecting and promoting the interests of consumers of legal services;
- Promoting competition in the provision of legal services;
- Encouraging an independent, strong, diverse and effective legal profession;
- Increasing public understanding of the citizen’s legal rights and duties;
- Promoting and maintaining adherence to the professional principles;
The professional principles are:[4]
- Authorised persons should act with independence and integrity;
- Authorised persons should maintain proper standards of work;
- Authorised persons should act in the best interests of their clients;
- Persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice, and
- Affairs of clients should be kept confidential.
[edit] The Legal Services Board
Sections 2 to 7 and Schedule 1 create the Legal Services Board with a duty to promote the regulatory objectives. David Edmonds was appointed the first chair of the Board on 23 April 2008 but the Board is not exptected to be fully operational until 2010.[5] The Board is to have a Consumer Panel to represent consumers (ss. 8-11).[4] As of March 2008 no date has been fixed for the coming into force of the provisions about the Consumer Panel.
[edit] Reserved legal activities
Section 12 and Schedule 2 define six reserved legal activities:[4]
- Exercise of rights of audience;
- Conduct of litigation;
- Reserved instrument activities, being certain activities concerning land registration and real property;
- Probate activities;
- Notarial activities;
- Administration of oaths.
This list can be amended by an Order in Council of the Lord Chancellor (ss. 24-26).[4]
Section 12 then goes on to define, for the purposes of the Act, a legal activity as either a reserved legal activity or as the provision of legal advice, assistance or representation in connection with the application of the law or with any form of resolution of legal disputes. Legal activity does not include acting as a mediator or arbitrator.[4]
Only an authorised person or an exempt person can carry out a reserved legal activity (s. 14). It is a crime to carry out a reserved activity otherwise though it is a defence that the person "did not know, and could not reasonably have been expected to know" that they were committing an offence. It is also an offence to pretend to be authorised (s. 17) An offender can be sentenced on summary conviction to up to six months' imprisonment and a fine of up to £5,000. If convicted on indictment in the Crown Court and offender can be sentenced to up to two years' imprisonment and an unlimited fine. An unauthorised person who purports to exercise a right of audience also commits a contempt of court for which he can be punished.[4]
As of March 2008, no date is fixed for the coming into force of these provisions.
[edit] Authorised persons and approved regulators
Authorised persons are either (s. 18):[4]
- Persons authorised in respect of a given legal activity by a relevant approved regulator; or
- Licensed bodies authorised in respect of those activities.
Relevant approved regulators are (s. 20/ Sch. 2, Pt. 1):[4]
| Regulator | Rights of audience | Conduct of litigation | Reserved instruments | Probate activities | Notorial activities | Administration of oaths |
|---|---|---|---|---|---|---|
| Law Society | yes | yes | yes | yes | no | yes |
| Bar Council | yes | yes | yes | yes | no | yes |
| Master of the Faculties | no | no | yes | yes | yes | yes |
| Institute of Legal Executives | yes | no | no | no | no | yes |
| Council for Licensed Conveyancers | no | no | yes | no | no | yes |
| Chartered Institute of Patent Attorneys | yes | yes | yes | no | no | yes |
| Institute of Trade Mark Attorneys | yes | yes | yes | no | no | yes |
| Association of Law Costs Draftsmen | yes | yes | no | no | no | yes |
The Legal Services Board also has the power to recommend to the Lord Chancellor that he approve further approved regulators (s. 20/ Sch. 2, Pt. 2). The regulatory arrangements of all the approved regulators defined in Sch. 2, Pt. 1 remain in place at the coming into force of the Act but thereafter, all changes to internal professional regulatory arrangements must be approved by the Board (s. 20/ Sch. 3, Pt. 3).[4]
As of 2008, no date is fixed for the coming into force of these provisions but, as a transitionary arrangement, authorised person is to be interpreted as a person who will be authorised when these sections to come into force.[6]
[edit] Regulation of approved regulators
Approved regulators have a duty to promote the regulatory objectives (s. 28). If they fail to do so, or if they fail in some other way to comply with the Act, the Legal Services Board can:[4]
- Issue directions to the regulator to correct the deficiency (ss. 32-34/ Sch. 7);
- Publish a public censure (ss. 35-36);
- Impose a financial penalty (ss. 37-40);
- Make an intervention direction whereby the regulatory function is performed by a person nominated by the Board (ss. 41-44);
- Recommend that the Lord Chancellor cancel the regulator's approval (ss. 45-48).
The Board has a duty to regulate practising fees (s. 51), resolve regulatory conflicts (ss. 52-54), and work with the Office of Fair Trading, the Competition Commission and the Lord Chancellor on competition issues (ss. 57-61).[4]
As of March 2008, no date is fixed for the coming into force of these provisions.
[edit] Alternative business structures and licensed bodies
Before the coming into force of the Act, lawyers in England and Wales could only practice as:
- Solicitors, as sole traders or in partnerships with other solicitors;
- Barristers, as sole traders; or
- Employees providing legal services to their employer.
The Act allows alternative business structures (ABSs) with non-lawyers in professional, management or ownership roles. The Act creates a system whereby approved regulators can authorise licensed bodies to offer reserved legal services (ss.71-111).[4]
As of March 2008, no date is fixed for the coming into force of these provisions and it has been suggested in the press that such structures are unlikely to be created until 2011 or 2012. Further, the extent to which the Bar Council will permit barristers to become involved in the full range of such structures is, as of March 2008, still unclear.[7]
[edit] Complaints
Approved regulators must operate a complaints system as part of their internal regulatory arrangements (s. 112). Section 114 of the Act creates an Office for Legal Complaints and an ombudsman scheme (ss. 114-158 / Sch. 15). The offices of Legal Services Complaints Commissioner and Legal Services Ombudsman are abolished (s. 159).[4]
For the purposes of complaints only, claims management services are regarded as reserved legal activities and the Claims Management Services Regulator as an approved regulator (s. 161).[4]
Section 114 comes into force on 7 March 2008 but, as of March 2008, no date is fixed for the coming into force of the remainder of these provisions. It has been suggested that the first complaints will not be handled until 2010.[7]
[edit] Legal professional privilege
The Act extends legal professional privilege to authorised persons other than barristers and solicitors (s. 190).[4] As of March 2008, no date is fixed for the coming into force of these provisions.
[edit] Costs in pro bono proceedings
Where a litigant is represented in civil proceedings on a pro bono basis, it would be contrary to the indemnity principle to award costs to that person.[8][9][10] Section 194 allows the court to order a payment to a charity in lieu.[4] As of March 2008, no date is fixed for the coming into force of these provisions.
[edit] References
- ^ S.212
- ^ The Legal Services Act 2007 (Commencement No.1 and Transitory Provisions) Order 2008 SI 2008/222
- ^ Legal Services Act given royal assent. Ministry of Justice (2007). Retrieved on 2008-03-04.
- ^ a b c d e f g h i j k l m n o p q Explanatory Notes to Legal Services Act 2007. Office of Public Sector Information (2007). Retrieved on 2008-03-03.
- ^ Jack Straw appoints first chair of Legal Services Board. Ministry of Justice. Retrieved on 2008-04-27.
- ^ SI 2008/222, art. 7
- ^ a b Gibb, F.. "Who will police the lawyers now? Only a non-lawyer need apply ...", The Times, 2007-11-08. Retrieved on 2008-03-04.
- ^ O'Hare, J. & Browne, K (2005). Civil Litigation, 12th ed., London: Thomson, 38.020-38.021. ISBN 0-421-90690-1.
- ^ Gundry v. Sainsbury [1910] 1 KB 645
- ^ Indemnity Principle. Costs Monkey (2004). Retrieved on 2003-03-04.
[edit] Bibliography
- Intendance Research & LPA (2007). Brave New World: Impact of the Legal Services Act 2007. London: Sweet & Maxwell. ISBN 1847032524.
- Explanatory Notes to Legal Services Act 2007. Office of Public Sector Information (2007). Retrieved on 2008-03-03.
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