Office of Public Sector Information
(1) The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.
(2) In this Act that objective is referred to as “the statutory objective”.
(3) As a general principle the question whether a person should be granted a right of audience, or be granted a right to conduct litigation in relation to any court or proceedings, should be determined only by reference to—
(a) whether he is qualified in accordance with the educational and training requirements appropriate to the court or proceedings;
(b) whether he is a member of a professional or other body which—
(i) has rules of conduct (however described) governing the conduct of its members;
(ii) has an effective mechanism for enforcing the rules of conduct; and
(iii) is likely to enforce them;
(c) whether, in the case of a body whose members are or will be providing advocacy services, the rules of conduct make satisfactory provision in relation to the court or proceedings in question requiring any such member not to withhold those services—
(i) on the ground that the nature of the case is objectionable to him or to any section of the public;
(ii) on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
(iii) on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available under the [1988 c. 34.] Legal Aid Act 1988); and
(d) whether the rules of conduct are, in relation to the court or proceedings, appropriate in the interests of the proper and efficient administration of justice.
(4) In this Act that principle is referred to as “the general principle”.
(5) Rules of conduct which allow a member of the body in question to withhold his services if there are reasonable grounds for him to consider that, having regard to—
(a) the circumstances of the case;
(b) the nature of his practice; or
(c) his experience and standing,
he is not being offered a proper fee, are not on that account to be taken as being incompatible with the general principle.
(1) Where any person is called upon to exercise any functions which are conferred by this Part with respect to—
(a) the granting of rights of audience;
(b) the granting of rights to conduct litigation;
(c) the approval of qualification regulations or rules of conduct; or
(d) the giving of advice with respect to any matter mentioned in paragraphs (a) to (c),
it shall be the duty of that person to exercise those functions as soon as is reasonably practicable and consistent with the provisions of this Part.
(2) A person exercising any such functions shall act in accordance with the general principle and, subject to that, shall—
(a) so far as it is possible to do so in the circumstances of the case, act to further the statutory objective; and
(b) not act in any way which would be incompatible with the statutory objective.
(1) There shall be a body corporate to be known as the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (in this Act referred to as “the Advisory Committee”).
(2) The Advisory Committee shall consist of a Chairman, and 16 other members, appointed by the Lord Chancellor.
(3) The Chairman shall be a Lord of Appeal in Ordinary or a judge of the Supreme Court of England and Wales.
(4) Of the 16 other members of the Advisory Committee—
(a) one shall be a judge who is or has been a Circuit judge;
(b) 2 shall be practising barristers appointed after consultation with the General Council of the Bar;
(c) 2 shall be practising solicitors appointed after consultation with the Law Society;
(d) 2 shall be persons with experience in the teaching of law, appointed after consultation with such institutions concerned with the teaching of law and such persons representing teachers of law as the Lord Chancellor considers appropriate; and
(e) 9 shall be persons other than—
(i) salaried judges of any court;
(ii) practising barristers;
(iii) practising solicitors; or
(iv) teachers of law,
appointed after consultation with such organisations as the Lord Chancellor considers appropriate.
(5) In appointing any member who falls within subsection (4)(e), the Lord Chancellor shall have regard to the desirability of appointing persons who have experience in, or knowledge of—
(a) the provision of legal services;
(b) civil or criminal proceedings and the working of the courts;
(c) the maintenance of professional standards among barristers or solicitors;
(d) social conditions;
(e) consumer affairs;
(f) commercial affairs; or
(g) the maintenance of professional standards in professions other than the legal profession.
(6) The Advisory Committee shall not be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown.
(7) The Advisory Committee’s property shall not be regarded as property of, or held on behalf of, the Crown.
(8) In this section “practising” means—
(a) in relation to a barrister, one who is in independent practice or is employed wholly or mainly for the purpose of providing legal services to his employer;
(b) in relation to a solicitor, one who has a practising certificate in force or is employed wholly or mainly for the purpose of providing legal services to his employer.
(9) The provisions of Schedule 1 shall have effect with respect to the constitution, procedure and powers of the Advisory Committee and with respect to connected matters.
(1) The Advisory Committee shall have the general duty of assisting in the maintenance and development of standards in the education, training and conduct of those offering legal services.
(2) The Advisory Committee shall carry out that general duty by performing the functions conferred on it by Schedule 2.
(3) In discharging its functions the Advisory Committee shall—
(a) where it considers it appropriate, have regard to the practices and procedures of other member States in relation to the provision of legal services;
(b) have regard to the desirability of equality of opportunity between persons seeking to practise any profession, pursue any career or take up any employment, in connection with the provision of legal services.
(1) The Lord Chancellor shall appoint a person for the purpose of conducting investigations under this Act.
(2) The person appointed shall be known as “the Legal Services Ombudsman”.
(3) The Legal Services Ombudsman—
(a) shall be appointed for a period of not more than three years; and
(b) shall hold and vacate office in accordance with the terms of his appointment.
(4) At the end of his term of appointment the Legal Services Ombudsman shall be eligible for re-appointment.
(5) The Legal Services Ombudsman shall not be an authorised advocate, authorised litigator, licensed conveyancer, authorised practitioner or notary.
(6) Schedule 3 shall have effect with respect to the Legal Services Ombudsman.
(1) Subject to the provisions of this Act, the Legal Services Ombudsman may investigate any allegation which is properly made to him and which relates to the manner in which a complaint made to a professional body with respect to—
(a) a person who is or was an authorised advocate, authorised litigator, licensed conveyancer, registered foreign lawyer, recognised body or duly certificated notary public and a member of that professional body; or
(b) any employee of such a person,
has been dealt with by that professional body.
(2) If the Ombudsman investigates an allegation he may investigate the matter to which the complaint relates.
(3) If the Ombudsman begins to investigate an allegation he may at any time discontinue his investigation.
(4) If the Ombudsman decides not to investigate an allegation which he would be entitled to investigate, or discontinues an investigation which he has begun, he shall notify the following of the reason for his decision—
(a) the person making the allegation;
(b) any person with respect to whom the complaint was made; and
(c) the professional body concerned.
(5) The Ombudsman shall not investigate an allegation while—
(a) the complaint is being investigated by the professional body concerned;
(b) an appeal is pending against the determination of the complaint by that body; or
(c) the time within which such an appeal may be brought by any person has not expired.
(6) Subsection (5) does not apply if—
(a) the allegation is that the professional body—
(i) has acted unreasonably in failing to start an investigation into the complaint; or
(ii) having started such an investigation, has failed to complete it within a reasonable time; or
(b) the Ombudsman is satisfied that, even though the complaint is being investigated by the professional body concerned, an investigation by him is justified.
(7) The Ombudsman shall not investigate—
(a) any issue which is being or has been determined by—
(i) a court;
(ii) the Solicitors Disciplinary Tribunal;
(iii) the Disciplinary Tribunal of the Council of the Inns of Court; or
(iv) any tribunal specified in an order made by the Lord Chancellor for the purposes of this subsection; or
(b) any allegation relating to a complaint against any person which concerns an aspect of his conduct in relation to which he has immunity from any action in negligence or contract.
(8) The Ombudsman may—
(a) if so requested by the Scottish ombudsman, investigate an allegation relating to a complaint made to a professional body in Scotland; and
(b) arrange for the Scottish ombudsman to investigate an allegation relating to a complaint made to a professional body in England and Wales.
(9) For the purposes of this section, an allegation is properly made if it is made—
(a) in writing; and
(b) by any person affected by what is alleged in relation to the complaint concerned or, where that person has died or is unable to act for himself, by his personal representative or by any relative or other representative of his.
(10) The Ombudsman may investigate an allegation even though—
(a) the complaint relates to a matter which arose before the passing of this Act; or
(b) the person making the complaint may be entitled to bring proceedings in any court with respect to the matter complained of.
(11) In this section—
“professional body” means any body which, or the holder of any office who—
has disciplinary powers in relation to any person mentioned in subsection (1)(a); and
is specified in an order made by the Lord Chancellor for the purposes of this subsection;
“recognised body” means any body recognised under section 9 of the [1985 c. 61.] Administration of Justice Act 1985 (incorporated practices) or under section 32 of that Act (incorporated bodies carrying on business of provision of conveyancing services); and
“the Scottish ombudsman” means any person appointed to carry out functions in relation to the provision of legal services in Scotland which are similar to those of the Ombudsman.
(1) Where the Legal Services Ombudsman has completed an investigation under this Act he shall send a written report of his conclusions to—
(a) the person making the allegation;
(b) the person with respect to whom the complaint was made;
(c) any other person with respect to whom the Ombudsman makes a recommendation under subsection (2); and
(d) the professional body concerned.
(2) In reporting his conclusions, the Ombudsman may recommend—
(a) that the complaint be reconsidered by the professional body concerned;
(b) that the professional body concerned or any other relevant disciplinary body consider exercising its powers in relation to—
(i) the person with respect to whom the complaint was made; or
(ii) any person who, at the material time, was connected with him;
(c) that—
(i) the person with respect to whom the complaint was made; or
(ii) any person who, at the material time, was connected with him,
pay compensation of an amount specified by the Ombudsman to the complainant for loss suffered by him, or inconvenience or distress caused to him, as a result of the matter complained of;
(d) that the professional body concerned pay compensation of an amount specified by the Ombudsman to the person making the complaint for loss suffered by him, or inconvenience or distress caused to him, as a result of the way in which the complaint was handled by that body;
(e) that the person or professional body to which a recommendation under paragraph (c) or (d) applies make a separate payment to the person making the allegation of an amount specified by the Ombudsman by way of reimbursement of the cost, or part of the cost, of making the allegation.
(3) More than one such recommendation may be included in a report under this section.
(4) Where the Ombudsman includes any recommendation in a report under this section, the report shall give his reasons for making the recommendation.
(5) For the purposes of the law of defamation the publication of any report of the Ombudsman under this section and any publicity given under subsection (9) shall be absolutely privileged.
(6) It shall be the duty of any person to whom a report is sent by the Ombudsman under subsection (1)(b) or (c) to have regard to the conclusions and recommendations set out in the report, so far as they concern that person.
(7) Where—
(a) a report is sent to any person under this section; and
(b) the report includes a recommendation directed at him,
he shall, before the end of the period of three months beginning with the date on which the report was sent, notify the Ombudsman of the action which he has taken, or proposes to take, to comply with the recommendation.
(8) Any person who fails to comply (whether wholly or in part) with a recommendation under subsection (2) shall publicise that failure, and the reasons for it, in such manner as the Ombudsman may specify.
(9) Where a person is required by subsection (8) to publicise any failure, the Ombudsman may take such steps as he considers reasonable to publicise that failure if—
(a) the period mentioned in subsection (7) has expired and that person has not complied with subsection (8); or
(b) the Ombudsman has reasonable cause for believing that that person will not comply with subsection (8) before the end of that period.
(10) Any reasonable expenses incurred by the Ombudsman under subsection (9) may be recovered by him (as a civil debt) from the person whose failure he has publicised.
(11) For the purposes of this section, the person with respect to whom a complaint is made (“the first person”) and another person (“the second person”) are connected if—
(a) the second person—
(i) employs the first person; and
(ii) is an authorised advocate, authorised litigator, duly certificated notary public, licensed conveyancer or partnership;
(b) they are both partners in the same partnership; or
(c) the second person is a recognised body which employs the first person or of which the first person is an officer.
(1) The Legal Services Ombudsman may make recommendations to any professional body about the arrangements which that body has in force for the investigation of complaints made with respect to persons who are subject to that body’s control.
(2) It shall be the duty of any professional body to whom a recommendation is made under this section to have regard to it.
(3) The Ombudsman may refer to the Advisory Committee any matters which come to his notice in the exercise of his functions and which appear to him to be relevant to the Committee’s functions.
(1) Where the Legal Services Ombudsman is conducting an investigation under this Act he may require any person to furnish such information or produce such documents as he considers relevant to the investigation.
(2) For the purposes of any such investigation, the Ombudsman shall have the same powers as the High Court in respect of the attendance and examination of witnesses (including the administration of oaths or affirmations and the examination of witnesses abroad) and in respect of the production of documents.
(3) No person shall be compelled, by virtue of subsection (2), to give evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the High Court.
(4) If any person is in contempt of the Ombudsman in relation to any investigation conducted under section 22, the Ombudsman may certify that contempt to the High Court.
(5) For the purposes of this section a person is in contempt of the Ombudsman if he acts, or fails to act, in any way which would constitute contempt if the investigation being conducted by the Ombudsman were civil proceedings in the High Court.
(6) Where a person’s contempt is certified under subsection (4), the High Court may enquire into the matter.
(7) Where the High Court conducts an inquiry under subsection (6) it may, after—
(a) hearing any witness produced against, or on behalf of, the person concerned; and
(b) considering any statement offered in his defence,
deal with him in any manner that would be available to it had he been in contempt of the High Court.
(1) The Lord Chancellor may by regulation extend the jurisdiction of the Legal Services Ombudsman by providing for the provisions of sections 21 to 25 to have effect, with such modifications (if any) as he thinks fit, in relation to the investigation by the Ombudsman of allegations—
(a) which relate to complaints of a prescribed kind concerned with the provision of probate services; and
(b) which he would not otherwise be entitled to investigate.
(2) Without prejudice to the generality of the power given to the Lord Chancellor by subsection (1), the regulations may make provision for the investigation only of allegations relating to complaints—
(a) made to prescribed bodies; or
(b) with respect to prescribed categories of person.
(1) The question whether a person has a right of audience before a court, or in relation to any proceedings, shall be determined solely in accordance with the provisions of this Part.
(2) A person shall have a right of audience before a court in relation to any proceedings only in the following cases—
(a) where—
(i) he has a right of audience before that court in relation to those proceedings granted by the appropriate authorised body; and
(ii) that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to the granting of that right;
(b) where paragraph (a) does not apply but he has a right of audience before that court in relation to those proceedings granted by or under any enactment;
(c) where paragraph (a) does not apply but he has a right of audience granted by that court in relation to those proceedings;
(d) where he is a party to those proceedings and would have had a right of audience, in his capacity as such a party, if this Act had not been passed; or
(e) where—
(i) he is employed (whether wholly or in part), or is otherwise engaged, to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and
(ii) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.
(3) No person shall have a right of audience as a barrister by virtue of subsection (2)(a) above unless he has been called to the Bar by one of the Inns of Court and has not been disbarred or temporarily suspended from practice by order of an Inn of Court.
(4) Nothing in this section affects the power of any court in any proceedings to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before the court in relation to those proceedings.
(5) Where a court refuses to hear a person as mentioned in subsection (4) it shall give its reasons for refusing.
(6) Nothing in this section affects any provision made by or under any enactment which prevents a person from exercising a right of audience which he would otherwise be entitled to exercise.
(7) Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right of audience in relation to any particular court or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.
(8) Where—
(a) immediately before the commencement of this section; 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 shall have a right of audience before that court, in relation to any proceedings, solely by virtue of the provisions of this section.
(9) In this section—
“advocate”, in relation to any proceedings, means any person exercising a right of audience as a representative of, or on behalf of, any party to the proceedings;
“authorised body” means—
the General Council of the Bar;
the Law Society; and
any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;
“appropriate authorised body”, in relation to any person claiming to be entitled to any right of audience by virtue of subsection (2)(a), means the authorised body—
granting that right; and
of which that person is a member;
“family proceedings” has the same meaning as in the [1984 c. 42.] Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the Children Act 1989;
“qualification regulations”, in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to any right of audience granted by it;
“qualified litigator” means—
any practising solicitor ( “practising” having the same meaning as in section 19(8)(b));
any recognised body; and
any person who is exempt from the requirement to hold a practising certificate by virtue of section 88 of the Solicitors Act 1974 (saving for solicitors to public departments and the City of London);
“recognised body” means any body recognised under section 9 of the [1985 c. 61.] Administration of Justice Act 1985 (incorporated practices);
“reserved family proceedings” means such category of family proceedings as the Lord Chancellor may, after consulting the President of the Law Society and with the concurrence of the President of the Family Division, by order prescribe; and
“rules of conduct”, in relation to an authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right of audience granted by it.
(10) Section 20 of the [1974 c. 47.] Solicitors Act 1974 (unqualified person not to act as a solicitor) section 22 of that Act (unqualified person not to prepare certain documents etc) and section 25 of that Act (costs where an unqualified person acts as a solicitor), shall not apply in relation to any act done in the exercise of a right of audience.
(1) The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part.
(2) A person shall have a right to conduct litigation in relation to any proceedings only in the following cases—
(a) where—
(i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and
(ii) that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to the granting of that right;
(b) where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment;
(c) where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings;
(d) where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed.
(3) Nothing in this section affects any provision made by or under any enactment which prevents a person from exercising a right to conduct litigation which he would otherwise be entitled to exercise.
(4) Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right to conduct litigation in relation to a particular court, or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.
(5) In this section—
“authorised body” means—
the Law Society; and
any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;
“appropriate authorised body”, in relation to any person claiming to be entitled to any right to conduct litigation by virtue of subsection (2)(a), means the authorised body—
granting that right; and
of which that person is a member;
“qualification regulations”, in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to any right to conduct litigation granted by it; and
“rules of conduct”, in relation to any authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right to conduct litigation granted by it.
(6) Section 20 of the [1974 c. 47.] Solicitors Act 1974 (unqualified person not to act as a solicitor), section 22 of that Act (unqualified person not to prepare certain documents etc.) and section 25 of that Act (costs where unqualified person acts as a solicitor) shall not apply in relation to any act done in the exercise of a right to conduct litigation.
(1) In order to be designated as an authorised body for the purposes of section 27 or 28 a professional or other body must—
(a) apply to the Lord Chancellor under this section, specifying the purposes for which it is seeking authorisation; and
(b) comply with the provisions of Part I of Schedule 4 as to the approval of qualification regulations and rules of conduct and other matters.
(2) Where—
(a) an application has been made to the Lord Chancellor under this section;
(b) the requirements of Part I of Schedule 4 have been satisfied; and
(c) the application has not failed,
the Lord Chancellor may recommend to Her Majesty that an Order in Council be made designating that body as an authorised body for the purposes of section 27 or (as the case may be) section 28.
Courts and Legal Services Act 1990