Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Other Bills before Parliament

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid
1

A
Bill
To
Make provision about legal aid; to make further provision about funding legal
services; to make provision about costs and other amounts awarded in civil
and criminal proceedings; to make provision about sentencing offenders,
including provision about release on licence or otherwise; to make provision
about bail and about remand otherwise than on bail; to make provision about
the employment, payment and transfer of persons detained in prisons and
other institutions; to make provision about penalty notices for disorderly
behaviour and cautions; and to create new offences of threatening with a
weapon in public or on school premises.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Legal aid
Provision of legal aid
1
Lord Chancellor’s functions
(1)
The Lord Chancellor must secure that legal aid is made available in accordance
5
with this Part.
(2)
In this Part “legal aid” means—
(a)
civil legal services required to be made available under section 8 or 9 or
paragraph 3 of Schedule 3 (civil legal aid), and
(b)
services consisting of advice, assistance and representation required to
10
be made available under section 12, 14 or 15 or paragraph 4 or 5 of
Schedule 3 (criminal legal aid).
(3)
The Lord Chancellor may secure the provision of—
(a)
general information about the law and the legal system, and

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(b)
information about the availability of advice about, and assistance in
connection with, the law and the legal system.
(4)
The Lord Chancellor may do anything which is calculated to facilitate, or is
incidental or conducive to, the carrying out of the Lord Chancellor’s functions
under this Part.
5
(5)
Nothing in this Part affects the powers that the Lord Chancellor has otherwise
than under this Part.
2
Arrangements
(1)
The Lord Chancellor may make such arrangements as the Lord Chancellor
considers appropriate for the purposes of carrying out the Lord Chancellor’s
10
functions under this Part.
(2)
The Lord Chancellor may, in particular, make arrangements by—
(a)
making grants or loans to enable persons to provide services or facilitate the
provision of services,
(b)
making grants or loans to individuals to enable them to obtain services, and
15
(c)
establishing and maintaining a body to provide services or facilitate the
provision of services.
(3)
The Lord Chancellor may by regulations make provision about the payment of
remuneration by the Lord Chancellor to persons who provide services under
arrangements made for the purposes of this Part.
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(4)
If the Lord Chancellor makes arrangements for the purposes of this Part that
provide for a court or other person to assess remuneration payable by the Lord
Chancellor, the court or person must assess the remuneration in accordance
with the arrangements and, if relevant, with regulations under subsection (3).
(5)
The Lord Chancellor may make different arrangements, in particular, in
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relation to—
(a)
different areas in England and Wales,
(b)
different descriptions of case, and
(c)
different classes of person.
3
Standards of service
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(1)
The Lord Chancellor may set and monitor standards in relation to services
made available under this Part.
(2)
The Lord Chancellor may, in particular, make arrangements for the
accreditation of persons providing, or wishing to provide, such services by—
(a)
the Lord Chancellor, or
35
(b)
persons authorised by the Lord Chancellor.
(3)
Arrangements for accreditation must include—
(a)
arrangements for monitoring services provided by accredited persons,
and
(b)
arrangements for withdrawing accreditation where the services
40
provided are unsatisfactory.
(4)
The Lord Chancellor may impose charges in connection with—
(a)
accreditation,

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(b)
monitoring services provided by accredited persons, and
(c)
authorising accreditation by others.
(5)
Persons authorised by the Lord Chancellor may, in accordance with the terms
of their authorisation, impose charges in connection with—
(a)
accreditation, and
5
(b)
monitoring services provided by accredited persons.
4
Director of Legal Aid Casework
(1)
The Lord Chancellor must designate a civil servant as the Director of Legal Aid
Casework (“the Director”).
(2)
The Lord Chancellor must make arrangements for the provision to the Director
10
by civil servants or other persons (or both) of such assistance as the Lord
Chancellor considers appropriate.
(3)
The Director must—
(a)
comply with directions given by the Lord Chancellor about the
carrying out of the Director’s functions under this Part, and
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(b)
have regard to guidance given by the Lord Chancellor about the
carrying out of those functions.
(4)
The Lord Chancellor may not give directions or guidance about the carrying
out of those functions in relation to individual cases.
(5)
The Lord Chancellor must publish any directions and guidance given about
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the carrying out of those functions.
(6)
Directions and guidance under this section may be revised or withdrawn from
time to time.
5
Delegation
(1)
The following functions of the Lord Chancellor may be exercised by, or by
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employees of, a person authorised by the Lord Chancellor for that purpose—
(a)
securing the provision of information under section 1(3), and
(b)
setting and monitoring standards under section 3.
(2)
Regulations may provide for a function of the Lord Chancellor under
regulations made under this Part to be exercisable by, or by employees of, a
30
person authorised by the Lord Chancellor for that purpose.
(3)
The functions conferred on the Director by this Part may be exercised by, or by
employees of, a person authorised by the Director for that purpose.
(4)
Regulations may provide for a function of the Director under regulations made
under this Part to be exercisable by, or by employees of, a person authorised by
35
the Director for that purpose.
(5)
A direction given by the Lord Chancellor under section 4 about the carrying
out of the Director’s functions may, in particular, require the Director—
(a)
to authorise, or not to authorise, a person to carry out a function
specified in the direction, or
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(b)
to authorise, or not to authorise, a person specified, or of a description
specified, in the direction to carry out such a function.

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(6)
Regulations under subsection (2) or (4) may provide that a function may be
exercised—
(a)
wholly or to a limited extent;
(b)
generally or in particular cases or areas;
(c)
unconditionally or subject to conditions.
5
(7)
An authorisation given for the purposes of this section or regulations under
this section may provide that a function may be exercised—
(a)
wholly or to a limited extent;
(b)
generally or in particular cases or areas;
(c)
unconditionally or subject to conditions.
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(8)
In the case of an authorisation given for the purposes of regulations under this
section, subsection (7) is subject to the provisions of the regulations.
6
Authorisations
(1)
An authorisation given for the purposes of section 5 or regulations under that
section—
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(a)
may specify its duration,
(b)
may specify or describe the authorised person,
(c)
may be varied or revoked at any time by the person who gave it, and
(d)
does not prevent the Lord Chancellor, the Director or another person
from exercising the function to which the authorisation relates.
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(2)
Anything done or omitted to be done by or in relation to a person authorised
under section 5(1) or regulations under section 5(2) (or an employee of such a
person) in, or in connection with, the exercise or purported exercise of the
function concerned is to be treated for all purposes as done or omitted to be
done by the Lord Chancellor.
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(3)
Anything done or omitted to be done by or in relation to a person authorised
under section 5(3) or regulations under section 5(4) (or an employee of such a
person) in, or in connection with, the exercise or purported exercise of the
function concerned is to be treated for all purposes as done or omitted to be
done by the Director.
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(4)
Subsections (2) and (3)—
(a)
do not affect the rights and liabilities of the authorised person or the
Lord Chancellor under any arrangements made between them,
(b)
do not prevent any civil proceedings which could otherwise be brought
by or against the authorised person (or an employee of that person)
35
from being brought,
(c)
do not apply for the purposes of criminal proceedings brought in
respect of anything done or omitted to be done by the authorised
person (or an employee of that person), and
(d)
do not make the Lord Chancellor or the Director liable under section 6
40
of the Human Rights Act 1998 in respect of any act or omission of an
authorised person if the act or omission is of a private nature.
(5)
Where—
(a)
an authorisation given for the purposes of section 5 or regulations
under that section is revoked, and
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(b)
at the time of the revocation so much of any contract made between the
authorised person and the Lord Chancellor as relates to the exercise of
the function is subsisting,

the authorised person is entitled to treat the contract as repudiated by the Lord
Chancellor (and not as frustrated by reason of the revocation).
5
(6)
In this section “authorised person” means a person authorised for the purposes
of section 5 or regulations under that section.
Civil legal aid
7
Civil legal services
(1)
In this Part “legal services” means the following types of services—
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(a)
providing advice as to how the law applies in particular circumstances,
(b)
providing advice and assistance in relation to legal proceedings,
(c)
providing other advice and assistance in relation to the prevention of
disputes about legal rights or duties (“legal disputes”) or the settlement
or other resolution of legal disputes, and
15
(d)
providing advice and assistance in relation to the enforcement of
decisions in legal proceedings or other decisions by which legal
disputes are resolved.
(2)
The services described in subsection (1) include, in particular, advice and
assistance in the form of—
20
(a)
representation, and
(b)
mediation and other forms of dispute resolution.
(3)
In this Part “civil legal services” means any legal services other than the types
of advice, assistance and representation that are required to be made available
under sections 12, 14 and 15 (criminal legal aid).
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8
General cases
(1)
Civil legal services are to be available to an individual under this Part if—
(a)
they are civil legal services described in Part 1 of Schedule 1, and
(b)
the Director has determined that the individual qualifies for the
services in accordance with this Part (and has not withdrawn the
30
determination).
(2)
The Lord Chancellor may by order modify Schedule 1 by omitting services
from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of
the Schedule).
9
Exceptional cases
35
(1)
Civil legal services other than services described in Part 1 of Schedule 1 are to
be available to an individual under this Part if subsection (2) or (4) is satisfied.
(2)
This subsection is satisfied where the Director—
(a)
has made an exceptional case determination in relation to the
individual and the services, and
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(b)
has determined that the individual qualifies for the services in
accordance with this Part,

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(and has not withdrawn either determination).
(3)
For the purposes of subsection (2), an exceptional case determination is a
determination—
(a)
that it is necessary to make the services available to the individual
under this Part because failure to do so would be a breach of—
5
(i)
the individual’s Convention rights (within the meaning of the
Human Rights Act 1998), or
(ii)
the individual’s rights to the provision of legal services under
European Union law, or
(b)
that it is appropriate to do so, in the particular circumstances of the
10
case, having regard to any risk that failure to do so would be such a
breach.
(4)
This subsection is satisfied where—
(a)
the services consist of advocacy in proceedings at an inquest under the
Coroners Act 1988 into the death of a member of the individual’s
15
family,
(b)
the Director has made a wider public interest determination in relation
to the individual and the inquest, and
(c)
the Director has determined that the individual qualifies for the
services in accordance with this Part,
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(and neither determination has been withdrawn).
(5)
For the purposes of subsection (4), a wider public interest determination is a
determination that, in the particular circumstances of the case, the provision of
advocacy under this Part for the individual for the purposes of the inquest is
likely to produce significant benefits for a class of person, other than the
25
individual and the members of the individual’s family.
(6)
For the purposes of this section an individual is a member of another
individual’s family if—
(a)
they are relatives (whether of the full blood or half blood or by marriage
or civil partnership),
30
(b)
they are cohabitants (as defined in Part 4 of the Family Law Act 1996),
or
(c)
one has parental responsibility for the other.
10
Qualifying for civil legal aid
(1)
The Director must determine whether an individual qualifies under this Part
35
for civil legal services in accordance with—
(a)
section 20 (financial resources) and regulations under that section, and
(b)
criteria set out in regulations made under this section.
(2)
In setting the criteria, the Lord Chancellor—
(a)
must consider the circumstances in which it is appropriate to make civil
40
legal services available under this Part, and
(b)
must, in particular, consider the extent to which the criteria ought to
reflect the factors in subsection (3).
(3)
Those factors are—
(a)
the likely cost of providing the services and the benefit which may be
45
obtained by the services being provided,

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(b)
the availability of resources to provide the services,
(c)
the appropriateness of applying those resources to provide the services,
having regard to present and likely future demands for the provision of
civil legal services under this Part,
(d)
the importance for the individual of the matters in relation to which the
5
services would be provided,
(e)
the nature and seriousness of the act, omission, circumstances or other
matter in relation to which the services are sought,
(f)
the availability to the individual of services provided other than under
this Part and the likelihood of the individual being able to make use of
10
such services,
(g)
if the services are sought by the individual in relation to a dispute, the
individual’s prospects of success in the dispute,
(h)
the conduct of the individual in connection with services made
available under this Part or an application for such services,
15
(i)
the conduct of the individual in connection with any legal proceedings
or other proceedings for resolving disputes about legal rights or duties,
and
(j)
the public interest.
(4)
In setting the criteria, the Lord Chancellor must seek to secure that, in cases in
20
which there is more than one description of service that could be provided for
an individual, the individual qualifies under this Part for the service which in
all the circumstances is the most appropriate having regard to the criteria.
(5)
The criteria must reflect the principle that, in many disputes, mediation and
other forms of dispute resolution are more appropriate than legal proceedings.
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(6)
Regulations under subsection (1)(b) may provide that no criteria apply in
relation to a prescribed description of individual or services.
11
Determinations
(1)
A determination by the Director that an individual qualifies under this Part for
civil legal services must specify—
30
(a)
the type of services, and
(b)
the matters in relation to which the services are to be available.
(2)
Regulations may make provision about the making and withdrawal of
determinations under sections 8 and 9.
(3)
Regulations under subsection (2) may, in particular, include—
35
(a)
provision about the form and content of determinations and
applications for determinations,
(b)
provision permitting or requiring applications and determinations to
be made and withdrawn in writing, by telephone or by other
prescribed means,
40
(c)
provision setting time limits for applications and determinations,
(d)
provision for a determination to be disregarded for the purposes of this
Part if made in response to an application that is made otherwise than
in accordance with the regulations,
(e)
provision about conditions which must be satisfied by an applicant
45
before a determination is made,