Legal Services Act 2007

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The Legal Services Act 2007[1]
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.
Chapter 2007 c. 29
Introduced by Lord Falconer Secretary of State for Constitutional Affairs, 23 November 2006
Territorial extent England and Wales[2]
Dates
Royal Assent 30 October 2007
Commencement 7 March 2008[3]
Repeal date
Other legislation
Amendments
Related legislation
Repealing legislation
Status: Not fully in force
History of passage through Parliament
Text of statute as originally enacted
Revised text of statute as amended

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.[4] It also makes provisions about the Legal Profession and Legal Aid (Scotland) Act 2007.

Regulatory objectives[edit]

Section 1 of the Act defines eight regulatory objectives:[5]

  • 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:[5]

  • 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.

The Legal Services Board[edit]

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 and nine members were appointed on 17 July. The members took up post on 1 September 2008 and the Board became fully operational on 1 January 2010.[6][7] The Board is to have a Consumer Panel to represent consumers (ss. 8-11).[5] As of July 2008 no date has been fixed for the coming into force of the provisions about the Consumer Panel.

Reserved legal activities[edit]

Section 12 and Schedule 2 define six reserved legal activities:[5]

This list can be amended by an Order in Council of the Chancellor (ss. 24-26).[5]

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.[5]

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 an 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.[5]

By virtue of paragraph 2(b) of the The Legal Services Act 2007 (Commencement No. 6, Transitory, Transitional and Saving Provisions) Order 2009 (SI 3250/2009) s 12 and Schedule 2 are in force from 1 January 2010.

Authorised persons and approved regulators[edit]

Authorised persons are either (s. 18):[5]

  • 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. 4, Pt. 1):[5]

Regulator Rights of audience Conduct of litigation Reserved instruments Probate activities Notarial 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
Chartered Institute of Legal Executives Yes No No No No Yes
Council for Licensed Conveyancers No No Yes Yes 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 does not have the power to recommend to the Lord Chancellor that he approve further approved regulators (s. 20/ Sch. 4, Pt. 2). The regulatory arrangements of all the approved regulators defined in Sch. 4, 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).[5]

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 not be authorised when these sections to come into force.[8]

Regulation of approved regulators[edit]

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:[5]

  • 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).[5]

As of March 2008, no date is fixed for the coming into force of these provisions.

Alternative business structures and licensed bodies[edit]

Before the coming into force of the Act, lawyers in England and Wales could only practice as:

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).[5]

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.[9]

Complaints[edit]

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 which the Section 115 of the Legal Services Act stipulates must administer an ombudsman scheme (ss. 114-158 /Sch. 15). The offices of Legal Services Complaints Commissioner (OLSCC) and Legal Services Ombudsman (OLSO), which were introduced in the Courts and Legal Services Act 1990 are abolished under the Act (s. 159).[5] The Office of the Legal Services Complaints Commissioner (OLSCC) closed on 31 March 2010. The Office of the Legal Services Ombudsman closed in 2011.

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).[5]

Section 114 came into force on 7 March 2008.[9] The Office for Legal Complaints (OLC) launched on Friday 24 July 2009. On 3 February 2009, the Legal Services Board announced the OLC Board members. On 29 September 2009 it was announced that the Ombudsman would be based in Birmingham, England. That December, it was confirmed that the name Legal Ombudsman had been chosen for the new scheme. On Wednesday 6 October 2010 the Legal Ombudsman began receiving complaints.

Legal professional privilege[edit]

The Act extends legal professional privilege to authorised persons other than barristers and solicitors (s. 190).[5] As of March 2008, no date is fixed for the coming into force of these provisions.

Costs in pro bono proceedings[edit]

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.[10][11][12] Section 194 allows the court to order a payment to a charity in lieu.[5] These provisions come into force progressively from 30 June to 1 October 2008.[13][14]

References[edit]

  1. ^ The citation of this Act by this short title is authorised by section 214 of this Act.
  2. ^ S.212
  3. ^ The Legal Services Act 2007 (Commencement No.1 and Transitory Provisions) Order 2008 SI 2008/222
  4. ^ "Legal Services Act given royal assent". Ministry of Justice. 2007. Retrieved 2008-03-04. 
  5. ^ a b c d e f g h i j k l m n o p q "Explanatory Notes to Legal Services Act 2007". The National Archives. 2007. Retrieved 2011-01-09. 
  6. ^ "Jack Straw appoints first chair of Legal Services Board". Ministry of Justice. Retrieved 2008-04-27. 
  7. ^ "Jack Straw appoints new Legal Services Board". Ministry of Justice. Retrieved 2008-08-08. 
  8. ^ SI 2008/222, art. 7
  9. ^ a b Gibb, F. (2007-11-08). "Who will police the lawyers now? Only a non-lawyer need apply ...". The Times. Retrieved 2008-03-04. 
  10. ^ O'Hare, J. & Browne, K (2005). Civil Litigation (12th ed. ed.). London: Thomson. pp. 38.02038.021. ISBN 0-421-90690-1. 
  11. ^ Gundry v. Sainsbury [1910] 1 KB 645
  12. ^ "Indemnity Principle". Costs Monkey. 2004. Retrieved 2003-03-04. 
  13. ^ Legal Services Act 2007 (Commencement No. 2 and Transitory Provisions) Order 2008, SI 2008/1436
  14. ^ Legal Services Act 2007 (Commencement No. 2 and Transitory Provisions) (Amendment) Order 2008, SI 2008/1591

Bibliography[edit]