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Consideration of Bill: 1 November 2011                  

3836

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(a)    

the person is in a residential building as a trespasser having entered it as

 

a trespasser,

 

(b)    

the person knows or ought to know that he or she is a trespasser, and

5

(c)    

the person is living in the building or intends to live there for any period.

 

(2)    

The offence is not committed by a person holding over after the end of a lease or

 

licence (even if the person leaves and re-enters the building).

 

(3)    

For the purposes of this section—

 

(a)    

“building” includes any structure or part of a structure (including a

10

temporary or moveable structure), and

 

(b)    

a building is “residential” if it is designed or adapted, before the time of

 

entry, for use as a place to live.

 

(4)    

For the purposes of this section the fact that a person derives title from a

 

trespasser, or has the permission of a trespasser, does not prevent the person from

15

being a trespasser.

 

(5)    

A person convicted of an offence under this section is liable on summary

 

conviction to imprisonment for a term not exceeding 51 weeks or a fine not

 

exceeding level 5 on the standard scale (or both).

 

(6)    

In relation to an offence committed before the commencement of section 281(5)

20

of the Criminal Justice Act 2003, the reference in subsection (5) to 51 weeks is to

 

be read as a reference to 6 months.

 

(7)    

For the purposes of subsection (1)(a) it is irrelevant whether the person entered

 

the building as a trespasser before or after the commencement of this section.’.

 

As Amendments to Secretary Kenneth Clarke’s proposed New Clause (Offence of

 

squatting in a residential building) (NC26):—

 

John McDonnell

 

Kate Hoey

 

Jeremy Corbyn

 

(a)

 

Line  7,  at end insert—

 

‘(2A)    

The offence is not committed where the building has been empty for six months

 

or more and where there are no significant steps being taken to refurbish, let or

 

sell the building at the time of the trespass.’.

 

John McDonnell

 

Mr John Leech

 

Jeremy Corbyn

 

(b)

 

Line  7,  at end insert—

 

‘(2AA)    

The offence is not committed in cases where the person—

 

(a)    

has been a resident of a homelessness hostel in the previous year;

 

(b)    

has been a resident of a homelessness nightshelter in the previous year;

 

(c)    

has been a resident of a women’s refuge in the previous year;

 

(d)    

has been found rough sleeping by a local authority or voluntary sector

 

outreach team or by a statutory agency in the previous year;

 

(e)    

has received mental health treatment in a residential setting in the

 

previous year; and

 

(f)    

is a care leaver.’.


 
 

Consideration of Bill: 1 November 2011                  

3837

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

John McDonnell

 

Jeremy Corbyn

 

(c)

 

Line  22,  leave out subsection (7) and insert—

 

‘(7)    

For the purposes of subsection (1)(a) no offence is committed if the person

 

initially entered the building as a trespasser before the commencement of this

 

section.’.

 


 

NEW CLAUSES AND NEW SCHEDULES RELATING TO, AND AMENDMENTS TO, PART 1

 

(OTHER THAN CLAUSES 7 AND 8 AND SCHEDULE 1)

 

Status of Director and Lord Chancellor

 

Secretary Kenneth Clarke

 

NC4

 

To move the following Clause:—

 

‘(1)    

The Director is to carry out the functions of the office on behalf of the Crown.

 

(2)    

Service as the Director is service in the civil service of the State.

 

(3)    

The Lord Chancellor is to be treated as a corporation sole—

 

(a)    

for all purposes relating to the acquisition, holding, management and

 

disposal of property and interests in property under this Part, and

 

(b)    

for all other purposes relating to the Lord Chancellor’s functions in

 

connection with legal aid and other functions under this Part.

 

(4)    

An instrument in connection with the acquisition, holding, management or

 

disposal by the Lord Chancellor of property or an interest in property under this

 

Part or for a purpose mentioned in subsection (3)(b) may be executed on the Lord

 

Chancellor’s behalf by a person authorised by the Lord Chancellor for that

 

purpose.

 

(5)    

Any such instrument purporting to have been executed by the Lord Chancellor or

 

on the Lord Chancellor’s behalf is to be received in evidence and, unless the

 

contrary is proved, to be treated as having been so executed.’.

 


 

Northern Ireland: information about financial resources

 

Secretary Kenneth Clarke

 

NC9

 

To move the following Clause:—

 

‘Schedule [Northern Ireland: information about financial resources] (Northern

 

Ireland: information about financial resources) has effect.’.

 



 
 

Consideration of Bill: 1 November 2011                  

3838

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

Extension of scope of legal aid in complex cases

 

Yvonne Fovargue

 

NC17

 

To move the following Clause:—

 

‘(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) is satisfied.

 

(2)    

This subsection is satisfied where the Director—

 

(a)    

has made a complex case determination in relation to the individual and

 

the services, and

 

(b)    

has determined that the individual qualifies for the services in accordance

 

with this Part,

 

    

(and has not withdrawn either determination).

 

(3)    

For the purposes of subsection (2), a complex case determination is a

 

determination—

 

(a)    

that the individual has complex, interconnected needs in relation to

 

which the individual requires comprehensive civil legal services, and

 

(b)    

not all of those civil legal services would otherwise be available to the

 

individual because they do not all fall within the scope of Schedule 1.’.

 


 

Funding for civil legal advice

 

Jonathan Edwards

 

NC43

 

Parliamentary Star    

To move the following Clause:—

 

‘(1)    

The Lord Chancellor may make funding available for the promotion of civil legal

 

advice on matters not included in Schedule 1, Part 1 where it appears to the Lord

 

Chancellor that the provision of such services would be consistent with the

 

purpose of the civil legal services provided for under that schedule.

 

(2)    

The Lord Chancellor may make arrangements by—

 

(a)    

entering into funding arrangements with other Government departments

 

and public bodies to facilitate the provision of services,

 

(b)    

making arrangements to support the delivery of civil legal advice through

 

the provision of grant in aid to providers of legal services, including any

 

consortia or partnership arrangements into which providers of legal

 

services may choose to enter, and

 

(c)    

any additional arrangements which the Lord Chancellor considers

 

appropriate to ensure the provision of services as set out in subsection (1).

 

(3)    

In making any such arrangements the Lord Chancellor shall ensure that value for

 

money is achieved.

 

(4)    

Welsh Ministers shall be consulted upon the funding and provision of civil legal

 

advice in Wales.

 

(5)    

“Civil legal advice” means the types of services given in section 7(1) and includes

 

advice and assistance which is usually given by any representative in the steps

 

preliminary or incidental to proceedings and as to any appeal, mediation and other


 
 

Consideration of Bill: 1 November 2011                  

3839

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

forms of dispute resolution, but does not include representation for the purposes

 

of proceedings.’.

 


 

Secretary Kenneth Clarke

 

NS3

 

To move the following Schedule:—

 

‘Northern Ireland: information about financial resources

 

Obtaining information

 

1    (1)  

The relevant authority may make an information request to—

 

(a)    

the Secretary of State,

 

(b)    

a relevant Northern Ireland Department, or

 

(c)    

the Commissioners for Her Majesty’s Revenue and Customs (“the

 

Commissioners”).

 

      (2)  

An information request may be made under this paragraph only for the

 

purposes of facilitating a determination about an individual’s financial

 

resources for the purposes of —

 

(a)    

the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981

 

(S.I. 1981/228 (N.I. 8)), or

 

(b)    

the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435)

 

(N.I. 10)).

 

      (3)  

An information request made to the Secretary of State or a relevant Northern

 

Ireland Department under this paragraph may request the disclosure of some

 

or all of the following information—

 

(a)    

a relevant individual’s full name and any previous names;

 

(b)    

a relevant individual’s address and any previous addresses;

 

(c)    

a relevant individual’s date of birth;

 

(d)    

a relevant individual’s national insurance number;

 

(e)    

a relevant individual’s benefit status at a time specified in the request;

 

(f)    

information of a prescribed description.

 

      (4)  

An information request made to the Commissioners under this paragraph may

 

request the disclosure of some or all of the following information—

 

(a)    

whether or not a relevant individual is employed or was employed at

 

a time specified in the request;

 

(b)    

the name and address of the employer;

 

(c)    

whether or not a relevant individual is carrying on a business, trade or

 

profession or was doing so at a time specified in the request;

 

(d)    

the name under which it is or was carried on;

 

(e)    

the address of any premises used for the purposes of carrying it on;

 

(f)    

a relevant individual’s national insurance number;

 

(g)    

a relevant individual’s benefit status at a time specified in the request;

 

(h)    

information of a prescribed description.

 

      (5)  

The information that may be prescribed under sub-paragraphs (3)(f) and (4)(h)

 

includes, in particular, information relating to—

 

(a)    

prescribed income of a relevant individual for a prescribed period, and

 

(b)    

prescribed capital of a relevant individual.


 
 

Consideration of Bill: 1 November 2011                  

3840

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

      (6)  

Information may not be prescribed under sub-paragraph (4)(h) without the

 

Commissioners’ consent.

 

      (7)  

The Secretary of State, the relevant Northern Ireland Departments and the

 

Commissioners may disclose to the relevant authority information specified in

 

an information request made under this paragraph.

 

      (8)  

In this paragraph—

 

“benefit status”, in relation to an individual, means whether or not the

 

individual is in receipt of a prescribed benefit or benefits and, if so—

 

(a)    

which benefit or benefits the individual is receiving,

 

(b)    

whether the individual is entitled to the benefit or benefits alone

 

or jointly,

 

(c)    

in prescribed cases, the amount the individual is receiving by

 

way of the benefit (or each of the benefits) (“the benefit

 

amount”), and

 

(d)    

in prescribed cases, where the benefit consists of a number of

 

elements, what those elements are and the amount included in

 

respect of each element in calculating the benefit amount;

 

“financial resources”, in relation to an individual, includes an individual’s

 

means, disposable income and disposable capital;

 

“the relevant authority” means—

 

(a)    

a prescribed person, or

 

(b)    

in relation to circumstances for which no person is prescribed,

 

the chief executive of the Northern Ireland Legal Services

 

Commission;

 

“a relevant individual”, in relation to an information request under this

 

paragraph for the purposes of a determination about an individual’s

 

financial resources, means—

 

(a)    

that individual, and

 

(b)    

any other individual whose financial resources are or may be

 

relevant for the purposes of the determination;

 

“relevant Northern Ireland Department” means the Department for Social

 

Development in Northern Ireland or the Department of Finance and

 

Personnel in Northern Ireland.

 

Restrictions on disclosing information

 

2    (1)  

A person to whom information is disclosed under paragraph 1 of this Schedule

 

or this sub-paragraph may disclose the information to any person to whom its

 

disclosure is necessary or expedient in connection with facilitating a

 

determination described in paragraph 1(2).

 

      (2)  

A person to whom such information is disclosed must not—

 

(a)    

disclose the information other than in accordance with sub-paragraph

 

(1), or

 

(b)    

use the information other than for the purpose of facilitating a

 

determination described in paragraph 1(2).

 

      (3)  

Sub-paragraph (2) does not prevent—

 

(a)    

the disclosure of information in accordance with an enactment or an

 

order of a court,

 

(b)    

the disclosure of information for the purposes of the investigation or

 

prosecution of an offence (or suspected offence) under the law of

 

England and Wales or Northern Ireland or any other jurisdiction,

 

except as otherwise prescribed,


 
 

Consideration of Bill: 1 November 2011                  

3841

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(c)    

the disclosure of information for the purposes of instituting, or

 

otherwise for the purposes of, proceedings before a court, or

 

(d)    

the disclosure of information which has previously been lawfully

 

disclosed to the public.

 

      (4)  

A person who discloses or uses information in contravention of this paragraph

 

is guilty of an offence and liable—

 

(a)    

on conviction on indictment, to imprisonment for a term not exceeding

 

2 years or a fine (or both);

 

(b)    

on summary conviction—

 

(i)    

in England and Wales, to imprisonment for a term not

 

exceeding 12 months or a fine not exceeding the statutory

 

maximum (or both), and

 

(ii)    

in Northern Ireland, to imprisonment for a term not exceeding

 

6 months or a fine not exceeding the statutory maximum (or

 

both).

 

      (5)  

It is a defence for a person charged with an offence under this paragraph to

 

prove that the person reasonably believed that the disclosure or use was lawful.

 

      (6)  

In this paragraph “enactment” includes—

 

(a)    

an enactment contained 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 or Northern Ireland

 

legislation.

 

      (7)  

In relation to an offence under this paragraph committed before the

 

commencement of section 154(1) of the Criminal Justice Act 2003, the

 

reference in sub-paragraph (4)(b)(i) to 12 months has effect as if it were a

 

reference to 6 months.

 

Power to make consequential and supplementary provision etc

 

3    (1)  

The Department of Justice in Northern Ireland may by regulations make

 

consequential, supplementary, incidental or transitional provision in relation to

 

this Schedule extending to Northern Ireland.

 

      (2)  

The regulations may, in particular—

 

(a)    

amend, repeal, revoke or otherwise modify Northern Ireland

 

legislation passed before this Schedule comes into force or an

 

instrument made under such legislation, and

 

(b)    

include transitory or saving provision.

 

Regulations

 

4    (1)  

In this Schedule “prescribed” means prescribed by regulations made by the

 

Department of Justice in Northern Ireland.

 

      (2)  

The powers under this Schedule to make regulations are exercisable by

 

statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order

 

1979 (S.I. 1979/1573 (N.I. 12)).

 

      (3)  

Regulations under this Schedule are subject to negative resolution within the

 

meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954,

 

subject to sub-paragraph (4).

 

      (4)  

The following regulations may not be made unless a draft of the regulations

 

has been laid before, and approved by a resolution of, the Northern Ireland

 

Assembly—

 

(a)    

the first regulations under paragraph 1, and


 
 

Consideration of Bill: 1 November 2011                  

3842

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(b)    

regulations under paragraph 3 that amend or repeal Northern Ireland

 

legislation (whether alone or with other provision).

 

      (5)  

Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the

 

purposes of sub-paragraph (4) in relation to the laying of a draft as it applies in

 

relation to the laying of a statutory document under an enactment (as defined

 

in that Act).

 

      (6)  

Subsections (1) to (3) of section 38 apply in relation to regulations made under

 

paragraph 1 or 2 of this Schedule as they apply in relation to regulations made

 

by the Lord Chancellor under this Part.’.

 


 

Jonathan Edwards

 

162

 

Parliamentary Star    

Page  2,  line  7  [Clause  1],  at end insert—

 

‘(c)    

funding for the promotion of civil legal services, not including

 

representation, on matters not included in Schedule 1, Part 1 where it

 

appears to the Lord Chancellor that the provision of such services would

 

be consistent with the purpose of the civil legal services provided for

 

under that schedule.’.

 

Mr Andy Slaughter

 

126

 

Page  2,  line  12  [Clause  1],  at end add—

 

‘(6)    

The Lord Chancellor must ensure that the proposed telephone gateway shall first

 

be piloted prior to any permanent implementation of such a scheme.’.

 


 

Mr Andy Slaughter

 

123

 

Page  3,  line  25  [Clause  4],  leave out subsection (4) and insert—

 

‘(4A)    

The Director must, except to the extent that section (4B) applies, act under the

 

direction of the Lord Chancellor.

 

(4B)    

The Director must act independently when performing any functions or duties

 

under this Part.’.

 


 

Mr Andy Slaughter

 

127

 

Page  6,  line  20  [Clause  9],  at end add—

 

‘(c)    

that the individual is aged 18 years or under.’.

 



 
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