Legal Aid, Sentencing and Punishment of Offenders Bill (HC Bill 235)

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 or liabilities under or in connection with such
25a scheme.

(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 132

• “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.

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
35evidence of that fact for all purposes.

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
40or scheme has effect.

Power to make further provision

10 (1) The Lord Chancellor may by regulations make consequential,
supplementary, incidental or transitional provision in connection with
transfers effected by or under this Schedule.

(2) 5The regulations may, in particular, include—

(a) provision modifying an enactment (whenever passed or made),
including this Schedule, and

(b) transitory or saving provision.

Interpretation

11 10In this Schedule—

• “the LSC” means the Legal Services Commission;

• “the transfer day” means the day on which section 1 comes into force;

• “enactment” means an enactment contained in an Act or an instrument
  made under an Act (and “Act” includes an Act or Measure of the
  15National Assembly for Wales).

Section 37

SCHEDULE 5 Consequential amendments

Part 1 Amendments

20Public Records Act 1958 (c. 51)Public Records Act 1958 (c. 51)

1 In Schedule 1 to the Public Records Act 1958 (definition of public records),
in Part 1 of the Table at the end of paragraph 3, in the second column omit
“Legal Services Commission.”

Parliamentary Commissioner Act 1967 (c. 13)Parliamentary Commissioner Act 1967 (c. 13)

2 25In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc
subject to investigation) omit “Legal Services Commission.”

Criminal Appeal Act 1968 (c. 19)Criminal Appeal Act 1968 (c. 19)

3 In section 50 of the Criminal Appeal Act 1968 (meaning of “sentence”), in
subsection (3) for “under section 17 of the Access to Justice Act 1999”
30substitute “relating to a requirement to make a payment under regulations
under section 22 or 23 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011”.

Children and Young Persons Act 1969 (c. 54)Children and Young Persons Act 1969 (c. 54)

4 (1) Section 23(5A) of the Children and Young Persons Act 1969 (restrictions on
35imposing security requirement on child or young person who is not legally
represented) is amended as follows.

(2) In paragraph (a)—

(a) for the words from the beginning to “but the right” substitute
“representation was provided to the child or young person under
Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act
52011 for the purposes of the proceedings but”, and

(b) for “to be granted such a right” substitute “for such representation”.

(3) In paragraph (aa) for “to be granted a right to it” substitute “for such
representation”.

5 (1) In section 23 of that Act as it has effect pursuant to section 98 of the Crime
10and Disorder Act 1998 (restrictions on remand of boy who is not legally
represented), subsection (4A) is amended as follows.

(2) In paragraph (a)—

(a) for the words from the beginning to “but the right” substitute
“representation was provided to the person under Part 1 of the Legal
15Aid, Sentencing and Punishment of Offenders Act 2011 for the
purposes of the proceedings but”, and

(b) for “to be granted such a right” substitute “for such representation”.

(3) In paragraph (aa) for “to be granted a right to it” substitute “for such
representation”.

20Attachment of Earnings Act 1971 (c. 32)Attachment of Earnings Act 1971 (c. 32)

6 In section 1(3)(c) of the Attachment of Earnings Act 1971 (cases in which
magistrates’ court may make attachment of earnings order) for the words
from “paid by” to the end substitute “paid under regulations under section
22 or 23 of the Legal Aid, Sentencing and Punishment of Offenders Act
252011”.

Solicitors Act 1974 (c. 47)Solicitors Act 1974 (c. 47)

7 The Solicitors Act 1974 is amended as follows.

8 (1) Section 47 (jurisdiction and powers of Tribunal) is amended as follows.

(2) In subsections (2)(d), (2B) and (2D) for “providing representation funded by
30the Legal Services Commission as part of the Criminal Defence Service”
substitute “criminal legal aid work”.

(3) In subsection (2A)—

(a) for “providing representation” substitute “criminal legal aid work”,
and

(b) 35for “funded by the Legal Services Commission as part of the
Community Legal Service or Criminal Defence Service” substitute
“provided under arrangements made for the purposes of Part 1 of
the Legal Aid, Sentencing and Punishment of Offenders Act 2011”.

(4) After subsection (3B) insert—

“(3C) 40In this section “criminal legal aid work” means the provision under
arrangements made for the purposes of Part 1 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011 of—

(a) advice or assistance described in section 12 or 14 of that Act,
or

(b) representation for the purposes of criminal proceedings.”

9 In section 49(3) (appeals from Tribunal) for “providing representation
funded by the Legal Services Commission as part of the Criminal Defence
Service” substitute “criminal legal aid work (as defined in that section)”.

5House of Commons Disqualification Act 1975 (c. 24)House of Commons Disqualification Act 1975 (c. 24)

10 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975
(bodies of which all members are disqualified) omit “The Legal Services
Commission.”

Northern Ireland Assembly Disqualification Act 1975 (c. 25)Northern Ireland Assembly Disqualification Act 1975 (c. 25)

11 10In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975 (bodies of which all members are disqualified) omit “The Legal
Services Commission.”

Magistrates’ Courts Act 1980 (c. 43)Magistrates’ Courts Act 1980 (c. 43)

12 The Magistrates’ Courts Act 1980 is amended as follows.

13 15In section 8(4) (matters which may be contained in report of committal
proceedings without an order) for paragraph (i) substitute—

“(i) whether, for the purposes of the proceedings, representation
was provided to the accused or any of the accused under Part
1 of the Legal Aid, Sentencing and Punishment of Offenders
20Act 2011.”

14 In section 8A(5) (power to make ruling at pre-trial hearing)—

(a) in paragraph (a) for the words from “to be granted” to “Criminal
Defence Service” substitute “to be provided with representation for
the purposes of the proceedings under Part 1 of the Legal Aid,
25Sentencing and Punishment of Offenders Act 2011”, and

(b) in paragraph (b) for “the Legal Services Commission must decide
whether or not to grant him that right” substitute “the necessary
arrangements must be made for him to apply for it and, where
appropriate, obtain it”.

15 30In section 8C(7) (matters to which reporting restrictions do not apply) for
paragraph (g) substitute—

“(g) whether, for the purposes of the proceedings, representation
was provided to the accused or any of the accused under Part
1 of the Legal Aid, Sentencing and Punishment of Offenders
35Act 2011.”

16 In section 92(1)(b) (exception to restriction on power to impose
imprisonment for default) for the words from “under section 17(2)” to
“criminal case” substitute “made by a court under regulations under section
22 of the Legal Aid, Sentencing and Punishment of Offenders Act 2011
40(payment by individual in respect of legal aid)”.

17 In section 130(3) (powers of alternate court on transfer of remand hearing)
for the words from “all the powers” to end substitute “all of the following

powers which that court would have had but for the order—

“(a) powers in relation to further remand (whether in custody or
on bail), and

(b) powers under Part 1 of the Legal Aid, Sentencing and
5Punishment of Offenders Act 2011.”

18 In section 145A(4) (rules about costs orders against legal representatives) for
“the Legal Services Commission” substitute “the Lord Chancellor under
arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing
and Punishment of Offenders Act 2011”.

10Senior Courts Act 1981 (c. 54)1981 (c. 54)

19 The Senior Courts Act 1981 is amended as follows.

20 In section 28(4) (appeals from Crown Court and inferior courts) for “an order
under section 17 of the Access to Justice Act 1999” substitute “a requirement
to make a payment under regulations under section 22 or 23 of the Legal
15Aid, Sentencing and Punishment of Offenders Act 2011”.

21 In section 29(6) (mandatory, prohibiting and quashing orders) for “orders
under section 17 of the Access to Justice Act 1999” substitute “requirements
to make payments under regulations under section 22 or 23 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011”.

20Prosecution of Offences Act 1985 (c. 23)Prosecution of Offences Act 1985 (c. 23)

22 Part 2 of the Prosecution of Offences Act 1985 (costs in criminal cases) is
amended as follows.

23 In section 19(2)(b) (matters of which account to be taken when making order
as to costs) for “any grant of a right to representation funded by the Legal
25Services Commission as part of the Criminal Defence Service” substitute “of
whether, for the purposes of the proceedings, representation has been
provided under Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011”.

24 In section 20(2) (regulations) for “by the Legal Services Commission or out
30of central funds” substitute “by the Lord Chancellor under arrangements
made for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011 or out of central funds in accordance with
a costs order”.

25 (1) Section 21 (interpretation) is amended as follows.

(2) 35In subsection (1), in the definition of “legally assisted person” for the words
from “to whom” to the end of the definition substitute “for whom advice,
assistance or representation is provided under arrangements made for the
purposes of Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011”.

(3) 40In subsection (4A)(a) for the words from “not” to “Service” substitute “not to
include the cost of advice, assistance or representation provided to the
person under arrangements made for the purposes of Part 1 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011”.

(4) In subsection (4A)(b) for the words from “the cost” to the end substitute “the
45cost of such advice, assistance or representation”.

Child Abduction and Custody Act 1985 (c. 60)Child Abduction and Custody Act 1985 (c. 60)

26 In section 11 of the Child Abduction and Custody Act 1985 (cost of
applications for child custody or access), for paragraph (a) (but not the “or”
following it) substitute—

“(a) 5the provision of any civil legal services (within the meaning
of Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011) under arrangements made for the
purposes of that Part of that Act,”.

Administration of Justice Act 1985 (c. 61)Administration of Justice Act 1985 (c. 61)

27 10Part 3 of the Administration of Justice Act 1985 (legal aid) is amended as
follows.

28 In section 40(1) (legal aid complaints) for the words from “funded by” to
“Criminal Defence Service” substitute “under arrangements made for the
purposes of Part 1 of the Legal Aid, Sentencing and Punishment of
15Offenders Act 2011”.

29 In section 41(2) (reduction of fees payable where legal aid complaint
made)—

(a) for “Legal Services Commission” substitute “Lord Chancellor”, and

(b) for “by him as part of the Community Legal Service or Criminal
20Defence Service” substitute “by the barrister under arrangements
made for the purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011”.

30 (1) Section 42 (exclusion of barristers from legal aid work) is amended as
follows.

(2) 25In subsections (1) and (3) for “providing representation funded by the Legal
Services Commission as part of the Criminal Defence Service” substitute
“criminal legal aid work”.

(3) At the end insert—

“(5) In this section “criminal legal aid work” means the provision under
30arrangements made for the purposes of Part 1 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011 of—

(a) advice or assistance described in section 12 or 14 of that Act,
or

(b) representation for the purposes of criminal proceedings.”

31 35In section 43(3) (reduction of costs payable where legal aid complaint
made)—

(a) for “Legal Services Commission” substitute “Lord Chancellor”, and

(b) for “as part of the Community Legal Service or Criminal Defence
Service” substitute “under arrangements made for the purposes of
40Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act
2011”.

32 In paragraph 20(1) of Schedule 2 (powers of Tribunal in respect of legal aid
complaints) for “providing representation funded by the Legal Services
Commission as part of the Criminal Defence Service” substitute “criminal
45legal aid work (as defined in that section)”.

Housing Act 1985 (c. 68)Housing Act 1985 (c. 68)

33 In section 170(5) of the Housing Act 1985 (charges to recover costs of
assistance in legal proceedings)—

(a) for “section 10(7) of the Access to Justice Act 1999” substitute “section
524 of the Legal Aid, Sentencing and Punishment of Offenders Act
2011”, and

(b) for “Legal Services Commission” substitute “Lord Chancellor”.

Criminal Justice Act 1987 (c. 38)Criminal Justice Act 1987 (c. 38)

34 The Criminal Justice Act 1987 is amended as follows.

35 10In section 4(1) (notices of transfer to Crown Court) for “paragraph 2 of
Schedule 3 to the Access to Justice Act 1999” substitute “regulations under
section 18 of the Legal Aid, Sentencing and Punishment of Offenders Act
2011”.

36 In section 11(12) (matters to which reporting restrictions do not apply) for
15paragraph (h) substitute—

“(h) whether, for the purposes of the proceedings, representation
was provided to the accused or any of the accused under Part
1 of the Legal Aid, Sentencing and Punishment of Offenders
Act 2011.”

20Housing Act 1988 (c. 50)Housing Act 1988 (c. 50)

37 In section 82(4) of the Housing Act 1988 (charges to recover costs of
assistance in legal proceedings)—

(a) for “section 10(7) of the Access to Justice Act 1999” substitute “section
24 of the Legal Aid, Sentencing and Punishment of Offenders Act
252011”, and

(b) for “Legal Services Commission” substitute “Lord Chancellor”.

Children Act 1989 (c. 41)Children Act 1989 (c. 41)

38 In section 25(6) of the Children Act 1989 (child without legal representation
not to be placed in secure accommodation without having been informed of
30right to apply for legal aid), for the words from “representation” to
“Criminal Defence Service” substitute “the provision of representation
under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act
2011”.

Courts and Legal Services Act 1990 (c. 41)Courts and Legal Services Act 1990 (c. 41)

39 (1) 35Section 31B of the Courts and Legal Services Act 1990 (advocates and
litigators employed by Legal Services Commission) is amended as follows.

(2) In the heading of the section for “Legal Services Commission” substitute
“Lord Chancellor”.

(3) In subsection (1) for paragraph (b) substitute—

“(b) 40is employed by the Lord Chancellor, or by any body
established and maintained by the Lord Chancellor, under

arrangements made for the purposes of Part 1 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2011.”

Criminal Justice Act 1991 (c. 53)Criminal Justice Act 1991 (c. 53)

40 In section 53(3) of the Criminal Justice Act 1991 (effect of notices transferring
5certain cases involving children) for “paragraph 2 of Schedule 3 to the Access
to Justice Act 1999” substitute “regulations under section 18 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011”.

Social Security Administration Act 1992 (c. 5)Social Security Administration Act 1992 (c. 5)

41 (1) Section 108(7) of the Social Security Administration Act 1992 is amended as
10follows.

(2) For “Legal Services Commission”, in the first place, substitute “Lord
Chancellor”.

(3) In paragraph (a)—

(a) at the end of sub-paragraph (iii) for “and” substitute “or”, and

(b) 15after that sub-paragraph insert—

“(iv) was provided with civil legal services (within
the meaning of Part 1 of the Legal Aid,
Sentencing and Punishment of Offenders Act
2011) under arrangements made for the
20purposes of that Part of that Act; and”.

(4) In paragraph (b) after sub-paragraph (iii) insert “or

(iv) under regulations under section 22 or 23 of the Legal
Aid, Sentencing and Punishment of Offenders Act
2011 in respect of civil legal services (within the
25meaning of Part 1 of that Act) provided under
arrangements made for the purposes of that Part of
that Act,”.

Criminal Procedure and Investigations Act 1996 (c. 25)Criminal Procedure and Investigations Act 1996 (c. 25)

42 In section 37(9) of the Criminal Procedure and Investigations Act 1996
30(matters to which reporting restrictions do not apply) for paragraph (g)
substitute—

“(g) whether, for the purposes of the proceedings,
representation was provided to the accused or any of the
accused under Part 1 of the Legal Aid, Sentencing and
35Punishment of Offenders Act 2011.”

Family Law Act 1996 (c. 27)Family Law Act 1996 (c. 27)

43 The Family Law Act 1996 is amended as follows.

44 (1) Section 8 (attendance at information meetings) is amended as follows.

(2) In subsection (9)(h) for “services funded by the Legal Services Commission
40as part of the Community Legal Service” substitute “civil legal services
under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act
2011”.