Legal Aid, Sentencing and Punishment of Offenders Bill (HC Bill 205)

(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.

5Recovery by means of motor vehicle orders

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) 10Regulations that make such provision are referred to in this Schedule as

“MVO regulations”.

(3) In this Schedule “court” means the High Court, a county court or a

magistrates’ court.

Motor vehicle orders

3 (1) 15In this Schedule “motor vehicle order” means—

(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

20(“clamped”), and

(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

25or otherwise disposed of in accordance with provision made by

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) 30MVO regulations may make provision in connection with—

(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

35devices have been fitted and the content of such notices,

(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) 40the sale or other disposal of motor vehicles not released,

(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

45motor vehicles, and

(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—

• 5“immobilisation device” has the same meaning as in section 104(9) of
  
  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
  
  10Act 1988 (exceptions for certain vehicles) applies for the purposes of
  
  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

15to whom the amount is payable.

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

20the individual’s wilful refusal or culpable neglect, and

(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

25of—

(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) 30MVO regulations must provide that a clamping order must not be made

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.

35Motor vehicles used by disabled persons

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) 40in relation to which there are reasonable grounds for believing that it

is used for the carriage of a disabled person.

(2) In this paragraph—

Legal Aid, Sentencing and Punishment of Offenders BillPage 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);

• 5“recognised badge” has the meaning given by section 21A of the
  
  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

10clamped under a clamping order, no vehicle sale order may be made in

respect of the motor vehicle before the end of a prescribed period.

Section 30

SCHEDULE 3 Legal aid for legal persons

Legal persons

1 15In this Schedule “legal person” means a person other than an individual.

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-

20paragraph (2) or (3) is satisfied.

(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

25Rights Act 1998), or

(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

30of the case, having regard to any risk that failure to do so would be such a

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) 35has made an exceptional case determination in relation to the person

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).

(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

5this paragraph as they apply in relation to a determination under section 9.

(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

10available under this Part to a legal person described in sub-paragraph (2)

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

15that determination), and

(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) 20legal persons who are involved in investigations which may lead to

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

25paragraph (and decisions made under such regulations) as they apply in

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) 30In this paragraph “assistance” includes, in particular, assistance in the form

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) 35the person is a specified legal person in relation to the proceedings,

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) 40Those conditions are that the Director—

(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,

45(and has not withdrawn either determination).

(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) 5Regulations under section 15(4) and (5) apply for the purposes of sub-

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

10section 15.

(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

15sub-paragraph (2) (and a decision in relation to the interests of justice for the

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

20determination that a legal person qualifies under this Part for representation

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

25that may result from the investigation, and

(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

30determinations and decisions made under such regulations).

(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) 35references to an individual include a legal person,

(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

40determination by the Director under regulations under sub-

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

45under this paragraph.

(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 5Section 20 applies for the purposes of a determination under paragraph

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

10include a legal person for whom services are made available under this Part

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

15applies in relation to the provision of services to an individual under this

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

20determination under paragraph 5(2)(b) of this Schedule, and

(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

25Schedule or regulations under this Schedule.

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

30of such services.

Section 36

SCHEDULE 4 Transfer of employees and property etc of Legal Services Commission

Part 1 Transfer of employees etc

5Transfer

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

10immediately before the transfer day have effect, on and after that day, as if

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

15day, subject to paragraph 4(1) and (2).

(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),

20is to have effect, so far as necessary for continuing its effect on and after that

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) 25for the purposes of, or in connection with, anything transferred by

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

30have effect, so far as is necessary for giving effect to those sub-paragraphs,

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) 35the individual is not to be regarded for the purposes of Part 11 of the

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

40purposes of that Act.

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

5virtue of paragraph 1(1).

(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

10contract of employment do not transfer by virtue of paragraph 1(3),

(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

15under this paragraph.

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

20individual’s contract of employment immediately before the transfer day

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

25scheme.

(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

30transfer to the Lord Chancellor or the Secretary of State of the LSC’s rights,

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

35scheme or compensation scheme, under an enactment, under a contract of

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) 40for the purposes of, or in connection with, anything transferred by

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

45being done immediately 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

virtue of the transfer scheme,

may be continued by or in relation to the transferee.

(6) 5A transfer scheme may provide that a reference to the LSC in a document,

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—

• 10“compensation scheme” means so much of any scheme as makes
  
  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;

• 15“transfer scheme” means a scheme made under sub-paragraph (3).

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

20the Secretary of State for Communities and Local Government on the

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

25virtue 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 Secretary of State for Communities

and Local Government.

(3) Anything which is in the process of being done immediately before the

30transfer 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 Secretary of State for Communities

35and Local Government.

(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) 40In this paragraph—

• “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,

• 45but does not include a charge on an estate or interest in land;

Legal Aid, Sentencing and Punishment of Offenders BillPage 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) 5Sub-paragraph (1) does not apply to—

(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) 10by or in relation to the LSC, and

(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) 15Anything 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

virtue of sub-paragraph (1),

20may be continued by or in relation to the Lord Chancellor.

(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.

25Part 3 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

30any nature) which would otherwise prevent or restrict their transfer.