Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 3 — Advocacy: exclusion and exceptions
116

14
Civil legal services provided to an individual in relation to matters arising
out of or in connection with—
(a)
a proposal by that individual to establish a business,
(b)
the carrying on of a business by that individual (whether or not the
business is being carried on at the time the services are provided), or
5
(c)
the termination or transfer of a business that was being carried on by
that individual.
15
Civil legal services provided in relation to a benefit, allowance, payment,
credit or pension under—
(a)
the Social Security Contributions and Benefits Act 1992,
10
(b)
the Jobseekers Act 1995,
(c)
the State Pension Credit Act 2002,
(d)
the Tax Credits Act 2002,
(e)
the Welfare Reform Act 2007,
(f)
the Welfare Reform Act 2011, or
15
(g)
any other enactment relating to social security.
16
Civil legal services provided in relation to compensation under the Criminal
Injuries Compensation Scheme.
17
Civil legal services provided in relation to changing an individual’s name.
Part 3
20
Advocacy: exclusion and exceptions

The services described in Part 1 of this Schedule do not include advocacy
other than the types of advocacy listed in this Part of this Schedule, except to
the extent that Part 1 provides otherwise.
Exceptions: courts
25
1
Advocacy in proceedings in the Supreme Court.
2
Advocacy in proceedings in the Court of Appeal.
3
Advocacy in proceedings in the High Court.
4
Advocacy in proceedings in the Court of Protection to the extent that they
concern—
30
(a)
a person’s right to life,
(b)
a person’s liberty or physical safety,
(c)
a person’s medical treatment (within the meaning of the Mental
Health Act 1983),
(d)
a person’s capacity to marry, to enter into a civil partnership or to
35
enter into sexual relations, or
(e)
a person’s right to family life.
5
Advocacy in proceedings in a county court.
6
Advocacy in the following proceedings in the Crown Court—
(a)
proceedings for the variation or discharge of an order under section
40
5 or 5A of the Protection from Harassment Act 1997, and

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 3 — Advocacy: exclusion and exceptions
117

(b)
proceedings under the Proceeds of Crime Act 2002 in relation to
matters listed in paragraph 34 of Part 1 of this Schedule.
7
Advocacy in a magistrates’ court that falls within the description of civil
legal services in paragraph 1, 9 to 11, 13 and 14 to 16 of Part 1 of this
Schedule.
5
8
Advocacy in the following proceedings in a magistrates’ court—
(a)
advocacy in proceedings under section 47 of the National Assistance
Act 1948,
(b)
advocacy in proceedings in relation to—
(i)
bail under Schedule 2 to the Immigration Act 1971, or
10
(ii)
arrest under Schedule 2 or 3 to that Act,
(c)
advocacy in proceedings for the variation or discharge of an order
under section 5 or 5A of the Protection from Harassment Act 1997,
and
(d)
advocacy in proceedings under the Proceeds of Crime Act 2002 in
15
relation to matters listed in paragraph 34 of Part 1 of this Schedule.
Exceptions: tribunals
9
Advocacy in proceedings in the First-tier Tribunal under—
(a)
the Mental Health Act 1983, or
(b)
paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act
20
1984.
10
Proceedings in the Mental Health Review Tribunal for Wales.
11
Advocacy in—
(a)
proceedings in the First-tier Tribunal under Schedule 2 to the
Immigration Act 1971, and
25
(b)
proceedings in the First-tier Tribunal under Part 5 of the Nationality,
Immigration and Asylum Act 2002.
12
Advocacy in proceedings in the First-tier Tribunal under—
(a)
section 40A of the British Nationality Act 1981, or
(b)
regulation 26 of the Immigration (European Economic Area)
30
Regulations 2006 (S.I. 2006/1003),

but only to the extent that the proceedings concern contravention of the
Equality Act 2010.
13
Advocacy in proceedings in the First-tier Tribunal under—
(a)
section 4 or 4A of the Protection of Children Act 1999 (appeals and
35
applications relating to list of barred from regulated activities with
children or vulnerable adults),
(b)
section 86 or 87 of the Care Standards Act 2000 (appeals and
applications relating to list of persons unsuitable to work with
vulnerable adults),
40
(c)
section 31, 32 or 34 of the Criminal Justice and Courts Services Act
2000 (applications relating to disqualification orders),
(d)
section 144 of the Education Act 2002 (appeals and reviews relating
to direction prohibiting person from teaching etc), or
(e)
section 4 of the Safeguarding Vulnerable Groups Act 2006.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 4 — Interpretation
118

14
Advocacy in proceedings in the Upper Tribunal arising out of proceedings
within paragraph 9 to 13 of this Part of this Schedule.
15
Advocacy in proceedings in the Upper Tribunal under section 11 of the
Tribunals, Courts and Enforcement Act 2007 (appeals on a point of law)
from decisions made by the First-tier Tribunal or the Special Educational
5
Needs Tribunal for Wales in proceedings under—
(a)
Part 4 of the Education Act 1996 (special educational needs), or
(b)
the Equality Act 2010.
16
Advocacy in proceedings which are brought before the Upper Tribunal
(wholly or primarily) to exercise its judicial review jurisdiction under section
10
15 of the Tribunals, Courts and Enforcement Act 2007.
17
Advocacy where judicial review applications are transferred to the Upper
Tribunal from the High Court under section 31A of the Senior Courts Act
1981.
18
Advocacy in proceedings in the Employment Appeal Tribunal, but only to
15
the extent that the proceedings concern contravention of the Equality Act
2010.
Other exceptions
19
Advocacy in proceedings in the Special Immigration Appeals Commission.
20
Advocacy in proceedings in the Proscribed Organisations Appeal
20
Commission.
21
Advocacy in—
(a)
prescribed legal proceedings relating to orders and procedures
prescribed under paragraph 1(1)(k) of Part 1 of this Schedule;
(b)
prescribed legal proceedings relating to orders and procedures
25
prescribed under paragraph 11(1)(g) of Part 1 of this Schedule;
(c)
prescribed legal proceedings relating to community care services (as
defined in paragraph 6 of Part 1 of this Schedule).
22
Advocacy in legal proceedings before any person to whom a case is referred
(in whole or in part) in any proceedings within the preceding paragraphs of
30
this Part of this Schedule.
Part 4
Interpretation
1
For the purposes of this Part of this Act, civil legal services are described in
Part 1 of this Schedule if they are described in one of the paragraphs of that
35
Part (other than in an exclusion), even if they are (expressly or impliedly)
excluded from another paragraph of that Part.
2
References in this Schedule to an Act or instrument, or a provision of an Act
or instrument—
(a)
are references to the Act, instrument or provision as amended from
40
time to time, and
(b)
include the Act, instrument or provision as applied by another Act or
instrument (with or without modifications).

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 2 — Criminal legal aid: motor vehicle orders
119

3
References in this Schedule to services provided in relation to an act,
omission or other matter of a particular description (however expressed)
include services provided in relation to an act, omission or other matter
alleged to be of that description.
4
References in this Schedule to services provided in relation to proceedings,
5
orders and other matters include services provided when such proceedings,
orders and matters are contemplated.
5     (1)
Where a paragraph of Part 1, 2 or 3 of this Schedule describes services that
consist of or include services provided in relation to proceedings, the
description is to be treated as including, in particular—
10
(a)
services provided in relation to related bail proceedings,
(b)
services provided in relation to preliminary or incidental
proceedings,
(c)
services provided in relation to a related appeal or reference to a
court, tribunal or other body, and
15
(d)
services provided in relation to the enforcement of decisions in the
proceedings.
      (2)
Regulations may make provision specifying whether proceedings are or are
not to be regarded as preliminary or incidental for the purposes of sub-
paragraph (1).
20
6
For the purposes of this Schedule, regulations may make provision about—
(a)
when services are provided in relation to a matter;
(b)
when matters arise under a particular enactment;
(c)
when proceedings are proceedings under a particular enactment.
7
In this Schedule “enactment” includes—
25
(a)
an enactment contained in subordinate legislation (within the
meaning of the Interpretation Act 1978), and
(b)
an enactment contained in, or in an instrument made under, an Act
or Measure of the National Assembly for Wales.
Schedule 2
30
Section 23

Criminal legal aid: motor vehicle orders
Amounts payable in connection with criminal legal aid
1     (1)
This Schedule makes provision about the recovery of—
(a)
an amount payable in connection with the provision of criminal legal
aid which is unpaid after the time when it is required to be paid
35
under section 22,
(b)
interest in respect of such an amount which is required to be paid
under that section, and
(c)
an amount required to be paid under section 23 in respect of costs
incurred in connection with the enforcement of an obligation to pay
40
an amount or interest described in paragraph (a) or (b).
      (2)
Such amounts and interest are referred to in this Schedule as “relevant
overdue amounts”.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 2 — Criminal legal aid: motor vehicle orders
120

      (3)
In this Schedule “criminal legal aid” means—
(a)
advice and assistance required to be made available under section 12
or 14, and
(b)
representation required to be made available made under section 15.
Recovery by means of motor vehicle orders
5
2     (1)
Regulations under section 23 may authorise a court to make motor vehicle
orders in respect of an individual for the purpose of enabling a relevant
overdue amount required to be paid by the individual to be recovered by the
person to whom the amount is due.
      (2)
Regulations that make such provision are referred to in this Schedule as
10
“MVO regulations”.
      (3)
In this Schedule “court” means the High Court, a county court or a
magistrates’ court.
Motor vehicle orders
3     (1)
In this Schedule “motor vehicle order” means—
15
(a)
a clamping order;
(b)
a vehicle sale order.
      (2)
A clamping order is an order—
(a)
that a motor vehicle be fitted with an immobilisation device
(“clamped”), and
20
(b)
which complies with any requirements that are imposed by MVO
regulations with respect to the making of clamping orders.
      (3)
A vehicle sale order is an order that—
(a)
a motor vehicle which is the subject of a clamping order is to be sold
or otherwise disposed of in accordance with provision made by
25
MVO regulations, and
(b)
any proceeds are to be applied, in accordance with MVO regulations,
in discharging the individual’s liability in respect of the relevant
overdue amount.
      (4)
MVO regulations may make provision in connection with—
30
(a)
the procedure for making motor vehicle orders,
(b)
the matters which must be included in such orders,
(c)
the fitting of immobilisation devices,
(d)
the fixing of notices to motor vehicles to which immobilisation
devices have been fitted and the content of such notices,
35
(e)
the removal and storage of motor vehicles,
(f)
the release of motor vehicles from immobilisation devices or from
storage, including the conditions to be met before a motor vehicle is
released,
(g)
the sale or other disposal of motor vehicles not released,
40
(h)
the imposition of charges in connection with the fitting of immobilisation
devices,
(i)
the imposition of charges in connection with the removal, storage, release
(whether from immobilisation devices or from storage), sale or disposal of
motor vehicles, and
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 2 — Criminal legal aid: motor vehicle orders
121

(j)
the recovery of charges described in paragraphs (h) and (i), including
provision for them to be recovered from the proceeds of sale of motor
vehicles.
      (5)
In this Schedule—
“immobilisation device” has the same meaning as in section 104(9) of
5
the Road Traffic Regulation Act 1984 (immobilisation of vehicles
illegally parked);
“motor vehicle” means a mechanically propelled vehicle intended or
adapted for use on roads, except that section 189 of the Road Traffic
Act 1988 (exceptions for certain vehicles) applies for the purposes of
10
this Schedule as it applies for the purposes of the Road Traffic Acts.
Applications
4
MVO regulations must provide that a motor vehicle order may be made in
relation to a relevant overdue amount only on the application of the person
to whom the amount is payable.
15
Matters of which court to be satisfied
5     (1)
MVO regulations must provide that, before a court makes a clamping order
in respect of an individual, it must be satisfied—
(a)
that the failure to pay the relevant overdue amount is attributable to
the individual’s wilful refusal or culpable neglect, and
20
(b)
that the value of the motor vehicle or vehicles to be clamped, if sold,
would be likely to be an amount which exceeds half of the estimated
recoverable amount.
      (2)
In this paragraph “the estimated recoverable amount” means the aggregate
of—
25
(a)
the relevant overdue amount, and
(b)
the amount of the likely charges due under section 23 in relation to
the motor vehicle or vehicles.
Ownership of motor vehicles
6     (1)
MVO regulations must provide that a clamping order must not be made
30
except in relation to a motor vehicle which is owned by the individual liable
to pay the relevant overdue amount.
      (2)
For this purpose a motor vehicle is owned by an individual if the individual
has an interest in the motor vehicle.
Motor vehicles used by disabled persons
35
7     (1)
MVO regulations must provide that an immobilisation device may not be
fitted to a motor vehicle—
(a)
which displays a current disabled person’s badge or a current
recognised badge, or
(b)
in relation to which there are reasonable grounds for believing that it
40
is used for the carriage of a disabled person.
      (2)
In this paragraph—

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 3 — Legal aid for legal persons
122

“disabled person’s badge” means a badge issued, or having effect as if
issued, under regulations under section 21 of the Chronically Sick
and Disabled Persons Act 1970 (badges for display on motor vehicles
used by disabled persons);
“recognised badge” has the meaning given by section 21A of the
5
Chronically Sick and Disabled Persons Act 1970 (recognition of
badges issued outside Great Britain).
Restrictions on making vehicle sale orders
8
MVO regulations must provide that, where a motor vehicle has been
clamped under a clamping order, no vehicle sale order may be made in
10
respect of the motor vehicle before the end of a prescribed period.
Schedule 3
Section 30

Legal aid for legal persons
Legal persons
1
In this Schedule “legal person” means a person other than an individual.
15
Exceptional case determinations
2     (1)
For the purposes of this Schedule, in relation to a legal person and civil legal
services, advice, assistance or representation for the purposes of criminal
proceedings, an exceptional case determination is a determination that sub-
paragraph (2) or (3) is satisfied.
20
      (2)
This sub-paragraph is satisfied if it is necessary to make the services
available to the legal person under this Part because failure to do so would
be a breach of—
(a)
the person’s Convention rights (within the meaning of the Human
Rights Act 1998), or
25
(b)
the person’s rights to the provision of legal services under European
Union law.
      (3)
This sub-paragraph is satisfied if it is appropriate to make the services
available to the legal person under this Part, in the particular circumstances
of the case, having regard to any risk that failure to do so would be such a
30
breach.
Civil legal aid
3     (1)
Civil legal services are to be available to a legal person under this Part only
if the Director—
(a)
has made an exceptional case determination in relation to the person
35
and the services, and
(b)
has determined that the person qualifies for the services in
accordance with this Part,

(and has not withdrawn either determination).