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 3 — Legal aid for legal persons
123

      (2)
Sections 10 and 11(1) apply in relation to a determination under sub-
paragraph (1)(b) as they apply in relation to a determination under section
9(2)(b).
      (3)
Subsections (2) to (6) of section 11 apply in relation to a determination under
this paragraph as they apply in relation to a determination under section 9.
5
      (4)
In sections 10 and 11 as applied by this paragraph, references to an
individual include a legal person.
Advice and assistance for criminal proceedings
4     (1)
Regulations may provide that prescribed advice and assistance is to be
available under this Part to a legal person described in sub-paragraph (2)
10
if—
(a)
prescribed conditions are met,
(b)
the Director has made an exceptional case determination in relation
to the person and the advice and assistance (and has not withdrawn
that determination), and
15
(c)
the Director has determined that the legal person qualifies for such
advice and assistance in accordance with the regulations (and has
not withdrawn that determination).
      (2)
Those legal persons are—
(a)
legal persons who are involved in investigations which may lead to
20
criminal proceedings, and
(b)
legal persons who are before a court or other body in criminal
proceedings.
      (3)
Subsections (3) to (9) of section 14 apply in relation to regulations under this
paragraph (and decisions made under such regulations) as they apply in
25
relation to regulations under that section (and decisions made under such
regulations).
      (4)
In those subsections as applied by this paragraph, references to an
individual include a legal person.
      (5)
In this paragraph “assistance” includes, in particular, assistance in the form
30
of advocacy.
Representation for criminal proceedings
5     (1)
Representation for the purposes of criminal proceedings is to be available
under this Part to a legal person if—
(a)
the person is a specified legal person in relation to the proceedings,
35
or
(b)
the proceedings involve the person resisting an appeal to the Crown
Court otherwise than in an official capacity,

and the conditions in sub-paragraph (2) are met.
      (2)
Those conditions are that the Director—
40
(a)
has made an exceptional case determination in relation to the legal
person and representation for the purposes of the proceedings, and
(b)
has determined that the legal person qualifies for such
representation in accordance with this Part,

(and has not withdrawn either determination).
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 3 — Legal aid for legal persons
124

      (3)
Where a legal person qualifies under this Part for representation for the
purposes of criminal proceedings, representation is also to be available to
the legal person for the purposes of any preliminary or incidental
proceedings.
      (4)
Regulations under section 15(4) and (5) apply for the purposes of sub-
5
paragraph (3) as they apply for the purposes of section 15(3), except to the
extent that the regulations provide otherwise.
      (5)
Section 16(1)(b) applies in relation to an exceptional case determination
under sub-paragraph (2)(a) as it applies in relation to a determination under
section 15.
10
      (6)
Paragraphs (a) and (b) of section 16(1) apply in relation to a determination
under sub-paragraph (2)(b) as they apply in relation to a determination
under section 15.
      (7)
Subsections (2) to (7) of section 17 apply in relation to a determination under
sub-paragraph (2) (and a decision in relation to the interests of justice for the
15
purposes of such a determination) as they apply in relation to a
determination under section 15 (and a decision for the purposes of such a
determination).
      (8)
Regulations may provide that the Director may make a provisional
determination that a legal person qualifies under this Part for representation
20
for the purposes of criminal proceedings where—
(a)
the legal person is involved in an investigation which may result in
criminal proceedings,
(b)
the determination is made for the purposes of criminal proceedings
that may result from the investigation, and
25
(c)
any prescribed conditions are met.
      (9)
Subsections (2) to (4) of section 19 apply in relation to regulations under sub-
paragraph (8) (and determinations and decisions made under such
regulations) as they apply in relation to regulations under that section (and
determinations and decisions made under such regulations).
30
     (10)
Paragraphs (a) and (b) of section 16(1) apply in relation to a provisional
determination under regulations under sub-paragraph (8) as they apply in
relation to a provisional determination under regulations under section 19.
     (11)
In sections 16, 17 and 19 as applied by this paragraph—
(a)
references to an individual include a legal person,
35
(b)
references to the relevant authority have effect as if they were
references to the Director, and
(c)
the reference in section 19(2)(d) to a determination by the Director or
a court under section 15 has effect as if it were a reference to a
determination by the Director under regulations under sub-
40
paragraph (8).
     (12)
Regulations may prescribe circumstances in which making representation
available to a legal person for the purposes of criminal proceedings is to be
taken to be in the interests of justice for the purposes of a determination
under this paragraph.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 3 — Legal aid for legal persons
125

     (13)
In this paragraph “specified legal person”, in relation to criminal
proceedings, means a description of legal person specified in regulations in
relation to those proceedings.
Financial resources
6
Section 20 applies for the purposes of a determination under paragraph
5
3(1)(b) or 5(2)(b), or under regulations under paragraph 4 or 5(8), as if the
references to an individual included a legal person.
Contributions and costs
7
In sections 22, 23, 24 and 25 and Schedule 2, references to an individual
include a legal person for whom services are made available under this Part
10
in accordance with this Schedule or regulations under this Schedule.
Providers of services etc
8     (1)
Section 26 applies in relation to the provision of services to a legal person in
accordance with this Schedule or regulations under this Schedule as it
applies in relation to the provision of services to an individual under this
15
Part.
      (2)
In that section as applied by this paragraph—
(a)
references to an individual include a legal person,
(b)
the reference to a determination under section 15 includes a
determination under paragraph 5(2)(b) of this Schedule, and
20
(c)
the reference to regulations under section 14 includes regulations
under paragraph 4 of this Schedule.
      (3)
In sections 27, 28 and 29, references to an individual include a legal person
for whom services are made available under this Part in accordance with this
Schedule or regulations under this Schedule.
25
Supplementary matters
9     (1)
In sections 33, 34 and 38(2), references to an individual include a legal person
for whom services are made available under this Part in accordance with this
Schedule or regulations under this Schedule or who is seeking the provision
of such services.
30

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 4 — Transfer of employees and property etc of Legal Services Commission
Part 1 — Transfer of employees etc
126

Schedule 4
Section 36

Transfer of employees and property etc of Legal Services Commission
Part 1
Transfer of employees etc
Transfer
5
1     (1)
An individual who is an employee of the Legal Services Commission (“the
LSC”) immediately before the transfer day becomes employed in the civil
service of the State on that day.
      (2)
The terms and conditions of the individual’s contract of employment
immediately before the transfer day have effect, on and after that day, as if
10
they were terms and conditions of the individual’s employment in the civil
service of the State, subject to paragraph 4(1) and (2).
      (3)
All of the rights, powers, duties and liabilities of the LSC in connection with
the individual’s employment are transferred to the Crown on the transfer
day, subject to paragraph 4(1) and (2).
15
      (4)
Anything done (or having effect as if done) before the transfer day—
(a)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
virtue of sub-paragraphs (1) to (3),

is to have effect, so far as necessary for continuing its effect on and after that
20
day, as if done by or in relation to the Crown.
      (5)
Anything which is in the process of being done immediately before the
transfer day—
(a)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
25
virtue of sub-paragraphs (1) to (3),

may be continued by or in relation to the Crown.
      (6)
A reference to the LSC in a document, including an enactment, constituting
or relating to anything transferred by virtue of sub-paragraphs (1) to (3) is to
have effect, so far as is necessary for giving effect to those sub-paragraphs,
30
as a reference to the Crown.
Continuity of employment
2
A transfer under paragraph 1 does not break the continuity of the
individual’s employment and accordingly—
(a)
the individual is not to be regarded for the purposes of Part 11 of the
35
Employment Rights Act 1996 (redundancy) as having been
dismissed by reason of that transfer, and
(b)
the individual’s period of employment with the LSC counts as a
period of employment in the civil service of the State for the
purposes of that Act.
40

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 4 — Transfer of employees and property etc of Legal Services Commission
Part 1 — Transfer of employees etc
127

Right to object to transfer
3     (1)
This paragraph has effect where, before the transfer day, an individual who
is an employee of the LSC informs the LSC or the Lord Chancellor that the
individual objects to becoming employed in the civil service of the State by
virtue of paragraph 1(1).
5
      (2)
Where this paragraph has effect—
(a)
the individual does not become employed in the civil service of the
State by virtue of paragraph 1(1),
(b)
the rights, powers, duties and liabilities under the individual’s
contract of employment do not transfer by virtue of paragraph 1(3),
10
(c)
the individual’s contract of employment terminates immediately
before the transfer day, and
(d)
the individual is not to be treated, for any purpose, as having been
dismissed by the LSC by reason of the termination of the contract
under this paragraph.
15
Pension schemes and compensation schemes
4     (1)
On and after the transfer day, the terms and conditions of employment of an
individual who is employed in the civil service of the State by virtue of
paragraph 1(1) do not include any term or condition that was part of the
individual’s contract of employment immediately before the transfer day
20
and that relates to—
(a)
an occupational pension scheme,
(b)
a compensation scheme, or
(c)
rights, powers, duties, liabilities under or in connection with such a
scheme.
25
      (2)
Accordingly, paragraph 1(3) does not apply in relation to rights, powers,
duties or liabilities under or in connection with an occupational pension
scheme or a compensation scheme.
      (3)
The Lord Chancellor may make one or more schemes providing for the
transfer to the Lord Chancellor or the Secretary of State of the LSC’s rights,
30
powers, duties and liabilities under or in connection with—
(a)
an occupational pension scheme, or
(b)
a compensation scheme,

whether the rights, powers, duties and liabilities arise under the pension
scheme or compensation scheme, under an enactment, under a contract of
35
employment or otherwise.
      (4)
A transfer scheme may provide that anything done (or having effect as if
done) before the day on which the transfer scheme takes effect—
(a)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
40
virtue of the transfer scheme,

is to have effect, so far as is necessary for continuing its effect on and after
that day, as if done by or in relation to the transferee.
      (5)
A transfer scheme may provide that anything which is in the process of
being done immediately before the day on which the transfer scheme takes
45
effect—

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 4 — Transfer of employees and property etc of Legal Services Commission
Part 2 — Transfer of property etc
128

(a)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
virtue of the transfer scheme,

may be continued by or in relation to the transferee.
      (6)
A transfer scheme may provide that a reference to the LSC in a document,
5
including an enactment, constituting or relating to anything transferred by
virtue of the scheme is to have effect, so far as is necessary for giving effect
to that scheme, as a reference to the transferee.
      (7)
In this paragraph—
“compensation scheme” means so much of any scheme as makes
10
provision for payment by way of compensation on or in respect of
termination of employment;
“occupational pension scheme” has the same meaning as in the Pension
Schemes Act 1993;
“transfer scheme” means a scheme made under sub-paragraph (3).
15
Part 2
Transfer of property etc
Transfer of interests in land
5     (1)
The LSC’s interests in land are by virtue of this sub-paragraph transferred to
the Secretary of State for Communities and Local Government on the
20
transfer day.
      (2)
Anything done (or having effect as if done) before the transfer day—
(a)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
virtue of sub-paragraph (1),
25

is to have effect, so far as is necessary for continuing its effect on and after
that day, as if done by or in relation to the Secretary of State for Communities
and Local Government.
      (3)
Anything which is in the process of being done immediately before the
transfer day—
30
(a)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
virtue of sub-paragraph (1),

may be continued by or in relation to the Secretary of State for Communities
and Local Government.
35
      (4)
A reference to the LSC in a document, including an enactment, constituting
or relating to anything transferred by virtue of sub-paragraph (1) is to have
effect, so far as is necessary for giving effect to that sub-paragraph, as a
reference to the Secretary of State for Communities and Local Government.
      (5)
In this paragraph—
40
“interest in land” means—
(a)
an estate or interest in land, and
(b)
any rights, powers, duties or liabilities of the LSC in
connection with such an estate or interest,
but does not include a charge on an estate or interest in land;
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 4 — Transfer of employees and property etc of Legal Services Commission
Part 3 — Supplementary
129

“land” includes buildings and other structures.
Transfer of other property, rights and liabilities
6     (1)
The property, rights, powers, duties and liabilities of the LSC are by virtue
of this sub-paragraph transferred to the Lord Chancellor on the transfer day.
      (2)
Sub-paragraph (1) does not apply to—
5
(a)
property, rights, powers, duties and liabilities transferred by virtue
of paragraph 1 or 5, or
(b)
rights, powers, duties and liabilities described in paragraph 4(3).
      (3)
Anything done (or having effect as if done) before the transfer day—
(a)
by or in relation to the LSC, and
10
(b)
for the purposes of, or in connection with, anything transferred by
virtue of sub-paragraph (1),

is to have effect, so far as is necessary for continuing its effect on and after
that day, as if done by or in relation to the Lord Chancellor.
      (4)
Anything which is in the process of being done immediately before the
15
transfer day—
(a)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
virtue of sub-paragraph (1),

may be continued by or in relation to the Lord Chancellor.
20
      (5)
A reference to the LSC in a document, including an enactment, constituting
or relating to anything transferred by virtue of sub-paragraph (1) is to have
effect, so far as is necessary for giving effect to that sub-paragraph, as a
reference to the Lord Chancellor.
Part 3
25
Supplementary
Disapplying restrictions on transfer
7
Paragraphs 1, 5 and 6 and schemes under paragraph 4 have effect in relation
to property, rights, powers, duties and liabilities in spite of any provision (of
any nature) which would otherwise prevent or restrict their transfer.
30
Certificate
8
A certificate issued by the Lord Chancellor stating that anything specified in
the certificate has vested in a person specified in the certificate by virtue of
any of paragraphs 1, 5 and 6 or a scheme under paragraph 4 is conclusive
evidence of that fact for all purposes.
35
Validity
9
The transfer of property, rights, powers, duties or liabilities by any of
paragraphs 1, 5 and 6 or a scheme under paragraph 4 does not affect the
validity of anything done by or in relation to the LSC before that paragraph
or scheme has effect.
40