I’ve read Mazur now and the main relevant part seems to be this:
- … Mere employment by a person who is authorised to conduct litigation is not sufficient for the employee to conduct litigation themselves, even under supervision. The person conducting litigation, even under supervision, must be authorised to do so, or fall within one of the exempt categories. …
I’ve also had a look at the Legal Services Act 2007.
Section 12 LSA 2007 defines “reserved legal activity”. Mazur was just about litigation, but two relevant activities seem to be “the exercise of a right of audience” and “the conduct of litigation”.
Section 13 says that to be entitled to carry on each activity you need to be “authorised” or “exempt”, and various criminal offences are then set out.
Schedule 2, para 3 says:
3 (1) A “right of audience” means the right to appear before and address a court, including the right to call and examine witnesses.
(2) But a “right of audience” does not include a right to appear before or address a court, or to call or examine witnesses, in relation to any particular court or in relation to particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to exercise that right.
Schedule 2, para 4 says:
4 (1) The “conduct of litigation” means—
(a) the issuing of proceedings before any court in England and Wales,
(b) the commencement, prosecution and defence of such proceedings, and
(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).
(2) But the “conduct of litigation” does not include any activity within paragraphs (a) to (c) of sub-paragraph (1), in relation to any particular court or in relation to any particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to carry on that activity.
I don’t really understand paras 3(2) and 4(2), but maybe they are our get out of jail free card since there never used to be any restrictions on MHT representation or advocacy.
Section 207 says:
“court” includes—
(a) a tribunal that was (to any extent) a listed tribunal for, or for any of, the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (functions etc of Administrative Justice and Tribunals Council) immediately before the coming into force of the repeal of that Schedule;
(b) a court-martial;
(c) a statutory inquiry within the meaning of section 16(1) of the Tribunals and Inquiries Act 1992 (c. 53);
(d) an ecclesiastical court (including the Court of Faculties);
Schedule 7, para 25 of the TCEA 2007 said this:
25 (1) The following are listed tribunals for the purposes of this Schedule—
(a) the First-tier Tribunal, and
(b) the Upper Tribunal.
The FTT (and so the MHT) is definitely a court for these purposes. The MHRT for Wales isn’t, though maybe the similarity and the word “includes” covers it. The Parole Board isn’t mentioned either.
Section 19 deals with exempt persons, and refers to schedule 3.
Schedule 3, para 1, in relation to rights of audience, says:
(2) The person is exempt if the person—
(a) is not an authorised person in relation to that activity, but
(b) has a right of audience granted by that court in relation to those proceedings.
(3)The person is exempt if the person—
(a) is not an authorised person in relation to that activity, but
(b) has a right of audience before that court in relation to those proceedings granted by or under any enactment.
Schedule 3, para 2 of the LSA 2007 says this about conducting litigation:
2 (1) This paragraph applies to determine whether a person is an exempt person for the purpose of carrying on any activity which constitutes the conduct of litigation in relation to any proceedings (subject to paragraph 7).
(2) The person is exempt if the person—
(a) is not an authorised person in relation to that activity, but
(b) has a right to conduct litigation granted by a court in relation to those proceedings.
(3) The person is exempt if the person—
(a) is not an authorised person in relation to that activity, but
(b) has a right to conduct litigation in relation to those proceedings granted by or under any enactment.
I think “any enactment” in this context probably includes the tribunal rules which are secondary legislation. Rule 2 of the English tribunal rules says:
“legal representative” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of that Act
Rule 11 says:
11 (1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.
The Welsh rules are similar, as are the Upper Tribunal rules, and in all of them “legal representative” is rarely even mentioned elsewhere in the rules. The main difference is the restriction on the tribunal’s appointment power:
11 (7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where …
So maybe:
- Paragraphs 3(2) and 4(2) of schedule 2 mean our work doesn’t count as litigation in the first place.
- Paragraph 4 of schedule 2 means the MHRT for Wales isn’t a court at all under the Act.
- Under schedule 3, the tribunal rules exempt us from the requirement to be authorised.