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
Schedule 1 — Civil legal services
Part 1 — Services
102

(b)
abuse in the form of violence, neglect, maltreatment and
exploitation;
“adult” means a person aged 18 or over;
“child” means a person under the age of 18.
Mediation in family disputes
5
12    (1)
Mediation provided in relation to family disputes.
      (2)
Civil legal services provided in connection with the mediation of family
disputes.

Exclusions
      (3)
Sub-paragraphs (1) and (2) are subject to the exclusions in Part 2 of this
10
Schedule, with the exception of paragraph 11 of that Part.
      (4)
But the exclusions described in sub-paragraph (3) are subject to the
exception in sub-paragraph (5).
      (5)
The services described in sub-paragraph (2) include services provided in
relation to conveyancing, but only where—
15
(a)
the services in relation to conveyancing are provided in the course of
giving effect to arrangements for the resolution of a family dispute,
and
(b)
services described in that sub-paragraph or sub-paragraph (1) (other
than services in relation to conveyancing) are being or have been
20
provided in relation to the dispute under arrangements made for the
purposes of this Part of this Act.
      (6)
Sub-paragraphs (1) and (2) are subject to the exclusion in Part 3 of this
Schedule.

Definitions
25
      (7)
For the purposes of this paragraph—
(a)
a dispute is a family dispute if it is a dispute between individuals
about a matter arising out of a family relationship between the
individuals,
(b)
there is a family relationship between two individuals if they are
30
associated with each other, and
(c)
“associated” has the same meaning as in Part 4 of the Family Law Act
1996 (see section 62 of that Act).
      (8)
For the purposes of this paragraph—
(a)
matters arising out of a family relationship include matters arising
35
under a family enactment, and
(b)
(subject to paragraph (a)) the Lord Chancellor may by regulations
make provision about when matters arise out of a family
relationship.
      (9)
In this paragraph—
40
“child” means a person under the age of 18;
“family enactment” has the meaning given in paragraph 10.
Children who are parties to family proceedings
13    (1)
Civil legal services provided to a child in relation to family proceedings—

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
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(a)
where the child is, or proposes to be, the applicant or respondent;
(b)
where the child is made a party to the proceedings by a court under
rule 16.2 of the Family Procedure Rules;
(c)
where the child is a party to the proceedings and is conducting, or
proposes to conduct, the proceedings without a children’s guardian
5
or litigation friend in accordance with rule 16.6 of the Family
Procedure Rules.

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
10

Definitions
      (3)
For the purposes of this paragraph—
(a)
proceedings are family proceedings if they relate to a matter arising
out of a family relationship,
(b)
there is a family relationship between two individuals if they are
15
associated with each other, and
(c)
“associated” has the same meaning as in Part 4 of the Family Law Act
1996 (see section 62 of that Act).
      (4)
For the purposes of this paragraph—
(a)
matters arising out of a family relationship include matters arising
20
under a family enactment, and
(b)
(subject to paragraph (a)) the Lord Chancellor may by regulations
make provision about when matters arise out of a family
relationship.
      (5)
In this paragraph—
25
“child” means a person under the age of 18;
“family enactment” has the meaning given in paragraph 10.
Forced marriage
14    (1)
Civil legal services provided in relation to forced marriage protection orders
under Part 4A of the Family Law Act 1996.
30

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
EU and international agreements concerning children
15    (1)
Civil legal services provided in relation to—
35
(a)
an application made to the Lord Chancellor under the 1980 European
Convention on Child Custody for the recognition or enforcement in
England and Wales of a decision relating to the custody of a child;
(b)
an application made to the Lord Chancellor under the 1980 Hague
Convention in respect of a child who is, or is believed to be, in
40
England and Wales;
(c)
the recognition or enforcement of a judgment in England and Wales
in accordance with Article 21, 28, 41, 42 or 48 of the 2003 Brussels
Regulation.

Exclusions
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
104

      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Definitions
      (3)
In this paragraph—
“the 1980 European Convention on Child Custody” means the
5
European Convention on Recognition and Enforcement of Decisions
concerning Custody of Children and on the Restoration of Custody
of Children which was signed in Luxembourg on 20 May 1980;
“the 1980 Hague Convention” means the Convention on the Civil
Aspects of International Child Abduction which was signed at The
10
Hague on 25 October 1980;
“the 2003 Brussels Regulation” means Council Regulation (EC)
No. 2001/2003 of 27 November 2003 concerning jurisdiction and the
recognition and enforcement of judgments in matrimonial matters
and the matters of parental responsibility.
15
      (4)
For the purposes of this paragraph, an application is made to the Lord
Chancellor if it is addressed to the Lord Chancellor or transmitted to the
Lord Chancellor in accordance with section 3 or 14 of the Child Abduction
and Custody Act 1985.
EU and international agreements concerning maintenance
20
16    (1)
Civil legal services provided in relation to an application under the
following for the recognition or enforcement in England and Wales of a
maintenance order—
(a)
the 1968 Brussels Convention;
(b)
the 1973 Hague Convention;
25
(c)
the 1989 Lugano Convention;
(d)
the 2000 Brussels Regulation;
(e)
the 2007 Lugano Convention.
      (2)
Civil legal services provided in relation to an application under Article 56 of
the EU Maintenance Regulation (applications relating to maintenance
30
decisions).
      (3)
Civil legal services provided to an individual in relation to proceedings in
England and Wales relating to the recognition, enforceability or enforcement
of a maintenance decision in circumstances in which the individual falls
within Article 47(2) or (3) of the EU Maintenance Regulation (parties who
35
benefited from free legal aid etc in Member State of origin).

Exclusions
      (4)
Sub-paragraphs (1) to (3) are subject to—
(a)
the exclusions in Part 2 of this Schedule, with the exception of
paragraph 11 of that Part, and
40
(b)
the exclusion in Part 3 of this Schedule.

Definitions
      (5)
In this paragraph—
“the 1968 Brussels Convention” means the Convention on jurisdiction
and the enforcement of judgments in civil and commercial matters
45
(including the Protocol annexed to that Convention) signed at
Brussels on 27 September 1968;

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
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“the 1973 Hague Convention” means the Convention on the
recognition and enforcement of decisions relating to maintenance
obligations concluded at The Hague on 2 October 1973;
“the 1989 Lugano Convention” means the Convention on jurisdiction
and the enforcement of judgments in civil and commercial matters
5
(including the Protocols annexed to that Convention) opened for
signature at Lugano on 16 September 1988 and signed by the United
Kingdom on 18 September 1989;
“the 2000 Brussels Regulation” means Council Regulation (EC) No. 44/
2001 of 22 December 2000 on jurisdiction and the recognition and
10
enforcement of judgments in civil and commercial matters;
“the 2007 Lugano Convention” means the Convention on jurisdiction
and enforcement of judgments in civil and commercial matters,
between the European Community and the Republic of Iceland, the
Kingdom of Norway, the Swiss Confederation and the Kingdom of
15
Denmark signed on behalf of the European Community on 30
October 2007;
“the EU Maintenance Regulation” means Council Regulation (EC) No.
4/2009 of 18 December 2008 on jurisdiction, applicable law,
recognition and enforcement of decisions and co-operation in
20
matters relating to maintenance obligations;
“maintenance order”, in relation to a convention or regulation listed in
this paragraph, means a maintenance judgment within the meaning
of that convention or regulation.
Judicial review
25
17    (1)
Civil legal services provided in relation to judicial review of an enactment,
decision, act or omission.

General exclusions
      (2)
Sub-paragraph (1) is subject to—
(a)
the exclusions in Part 2 of this Schedule, with the exception of
30
paragraph 15 of that Part, and
(b)
the exclusion in Part 3 of this Schedule.

Specific exclusion: benefit to individual
      (3)
The services described in sub-paragraph (1) do not include services
provided to an individual in relation to judicial review that does not have
35
the potential to produce a benefit for the individual, a member of the
individual’s family or the environment.
      (4)
Sub-paragraph (3) does not exclude services provided in relation to a
judicial review where the judicial review ceases to have the potential to
produce such a benefit after civil legal services have been provided in
40
relation to the judicial review under arrangements made for the purposes of
this Part.

Specific exclusions: immigration cases
      (5)
Where an issue relating to immigration (including an issue relating to rights
described in paragraph 25 of this Part of this Schedule) has been the subject
45
of judicial review or an appeal to a tribunal or court, the services described
in sub-paragraph (1) do not include services that are provided in relation to
judicial review in respect of the same issue or a substantially similar issue in

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
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the period of 1 year beginning with the day on which the previous judicial
review, or the appeal, was determined.
      (6)
The services described in sub-paragraph (1) do not include services
provided in relation to judicial review of a removal direction in respect of an
individual where the direction was given not more than 1 year after the
5
latest of the following—
(a)
the making of the decision to remove the individual from the United
Kingdom by way of such a direction;
(b)
the refusal of leave to appeal against that decision;
(c)
the determination or withdrawal of an appeal against that decision.
10
      (7)
Sub-paragraphs (5) and (6) do not exclude services provided to an
individual in relation to—
(a)
judicial review in connection with a negative decision in relation to
an asylum application (within the meaning of the EU Procedures
Directive);
15
(b)
judicial review of certification under section 96 of the Nationality,
Immigration and Asylum Act 2002 (certificate preventing appeal of
immigration decision).

Definitions
      (8)
For the purposes of this paragraph an individual is a member of another
20
individual’s family if—
(a)
they are relatives (whether of the full blood or half blood or by
marriage or civil partnership),
(b)
they are cohabitants (as defined in Part 4 of the Family Law Act
1996), or
25
(c)
one has parental responsibility for the other.
      (9)
In this paragraph—
“EU Procedures Directive” means Council Directive 2005/85/EC of 1
December 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status;
30
“judicial review” means—
(a)
the procedure on an application for judicial review (see
section 31 of the Senior Courts Act 1981), but not including
the procedure after the application is treated under rules of
court as if it were not such an application, and
35
(b)
any procedure in which a court, tribunal or other body
mentioned in Part 3 of this Schedule is required by an
enactment to make a decision applying the principles that are
applied by the court on an application for judicial review;
“removal direction” means a direction under—
40
(a)
paragraphs 8 to 10A of Schedule 2 to the Immigration Act
1971 (removal of persons refused leave to enter and illegal
entrants);
(b)
paragraphs 12 to 14 of Schedule 2 to that Act (removal of
seamen and aircrew);
45
(c)
paragraph 1 of Schedule 3 to that Act (removal of persons
liable to deportation);
(d)
section 10 of the Immigration and Asylum Act 1999 (removal
of certain persons unlawfully in the United Kingdom);

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
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(e)
section 47 of the Immigration, Asylum and Nationality Act
2006 (removal of persons with statutorily extended leave).
Habeas corpus
18    (1)
Civil legal services provided in relation to a writ of habeas corpus ad
subjiciendum.
5

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
Abuse of position or powers by public authority
19    (1)
Civil legal services provided in relation to abuse by a public authority of its
10
position or powers.

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule, with
the exception of paragraphs 1, 3, 4, 5, 6, 8 and 12 of that Part.
      (3)
But the exclusions described in sub-paragraph (2) are subject to the
15
exception in sub-paragraph (4).
      (4)
The services described in sub-paragraph (1) include services provided in
relation to negligence other than clinical negligence.
      (5)
Sub-paragraph (1) is subject to the exclusion in Part 3 of this Schedule.

Definitions
20
      (6)
For the purposes of this paragraph, an act or omission by a public authority
does not constitute an abuse of its position or powers unless the act or
omission—
(a)
is deliberate or dishonest, and
(b)
results in harm to a person or property that was reasonably
25
foreseeable.
      (7)
In this paragraph
“clinical negligence” means breach of a duty of care or trespass to the
person committed in the course of the provision of clinical or medical
services (including dental or nursing services);
30
“public authority” has the same meaning as in section 6 of the Human
Rights Act 1998.
Breach of Convention rights by public authority
20    (1)
Civil legal services provided in relation to—
(a)
a claim in tort, or
35
(b)
a claim for damages (other than a claim in tort),

in respect of an act or omission by a public authority that involves a
significant breach of Convention rights by the authority.

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule, with
40
the exception of paragraphs 1, 3, 4, 5, 6, 8 and 12 of that Part.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
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      (3)
But the exclusions described in sub-paragraph (2) are subject to the
exception in sub-paragraph (4) .
      (4)
The services described in sub-paragraph (1) include services provided in
relation to negligence other than clinical negligence.
      (5)
Sub-paragraph (1) is subject to the exclusion in Part 3 of this Schedule.
5

Definitions
      (6)
In this paragraph—
“clinical negligence” means breach of a duty of care or trespass to the
person committed in the course of the provision of clinical or medical
services (including dental or nursing services);
10
“Convention rights” has the same meaning as in the Human Rights Act
1998;
“public authority” has the same meaning as in section 6 of that Act.
Special Immigration Appeals Commission
21    (1)
Civil legal services provided in relation to proceedings before the Special
15
Immigration Appeals Commission.

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
Immigration: detention
20
22    (1)
Civil legal services provided in relation to—
(a)
detention under the authority of an immigration officer;
(b)
detention under Schedule 3 to the Immigration Act 1971;
(c)
detention under section 62 of the Nationality, Immigration and
Asylum Act 2002;
25
(d)
detention under section 36 of the UK Borders Act 2007.

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
Immigration: temporary admission
30
23    (1)
Civil legal services provided in relation to temporary admission to the
United Kingdom under—
(a)
paragraph 21 of Schedule 2 to the Immigration Act 1971;
(b)
section 62 of the Nationality, Immigration and Asylum Act 2002.

Exclusions
35
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
Immigration: residence etc restrictions
24    (1)
Civil legal services provided in relation to restrictions imposed under—
(a)
paragraph 2(5) or 4 of Schedule 3 to the Immigration Act 1971
40
(residence etc restrictions pending deportation);