Legal Aid, Sentencing and Punishment of Offenders Bill (HL Bill 109)

(6) Regulations under this section may include provision requiring information
and documents to be provided.

25 Costs in civil proceedings

(1) Costs ordered against an individual in relevant civil proceedings must not
5exceed the amount (if any) which it is reasonable for the individual to pay
having regard to all the circumstances, including—

(a) the financial resources of all of the parties to the proceedings, and

(b) their conduct in connection with the dispute to which the proceedings
relate.

(2) 10In subsection (1) “relevant civil proceedings”, in relation to an individual,
means—

(a) proceedings for the purposes of which civil legal services are made
available for the individual under this Part, or

(b) if such services are made available for the individual under this Part for
15the purposes of only part of proceedings, that part of the proceedings.

(3) Regulations may make provision for exceptions from subsection (1).

(4) In assessing for the purposes of subsection (1) the financial resources of an
individual for whom civil legal services are made available, the following must
not be taken into account, except so far as prescribed—

(a) 20the individual’s clothes and household furniture, and

(b) the implements of the individual’s trade.

(5) Subject to subsections (1) to (4), regulations may make provision about costs in
relation to proceedings for the purposes of which civil legal services are made
available under this Part.

(6) 25Regulations under subsection (5) may, in particular, make provision—

(a) specifying the principles to be applied in determining the amount of
any costs which may be awarded against a party for whom civil legal
services are made available under this Part,

(b) limiting the circumstances in which, or the extent to which, an order for
30costs may be enforced against such a party,

(c) as to the cases in which, and the extent to which, such a party may be
required to give security for costs and the manner in which it is to be
given,

(d) requiring the payment by the Lord Chancellor of the whole or part of
35any costs incurred by a party for whom civil legal services are not made
available under this Part,

(e) specifying the principles to be applied in determining the amount of
costs which may be awarded to a party for whom civil legal services are
made available under this Part,

(f) 40as to the court, tribunal or other person by whom the amount of any
costs is to be determined, and

(g) as to the extent to which any determination of that amount is to be final.

(7) Regulations under this section may include provision requiring information
and documents to be provided.

Providers of services etc

26 Choice of provider of services etc

(1) The Lord Chancellor’s duty under section 1(1) does not include a duty to
secure that, where services are made available to an individual under this Part,
5they are made available by the means selected by the individual.

(2) The Lord Chancellor may discharge that duty, in particular, by arranging for
the services to be provided by telephone or by other electronic means.

(3) The Lord Chancellor’s duty under section 1(1) does not include a duty to
secure that, where services are made available to an individual under this Part,
10they are made available by a person selected by the individual, subject to
subsections (4) to (10).

(4) An individual who qualifies under this Part for representation for the purposes
of criminal proceedings by virtue of a determination under section 15 may
select any representative or representatives willing to act for the individual,
15subject to regulations under subsection (6).

(5) Where an individual exercises that right, representation by the selected
representative or representatives is to be available under this Part for the
purposes of the proceedings.

(6) Regulations may provide that in prescribed circumstances—

(a) 20the right conferred by subsection (4) is not to apply in cases of
prescribed descriptions,

(b) an individual who has been provided with advice or assistance in
accordance with section 12 or regulations under section 14 by a person
selected by the individual is to be taken to have selected that person
25under subsection (4),

(c) the right conferred by subsection (4) is not to include a right to select a
representative of a prescribed description,

(d) that right is to select only a representative located in a prescribed area
or of a prescribed description,

(e) 30that right is to select not more than a prescribed number of
representatives to act at any one time, and

(f) that right is not to include a right to select a representative in place of a
representative previously selected.

(7) Regulations under subsection (6)(b) may prescribe circumstances in which an
35individual is to be taken to have selected a person to provide advice or
assistance.

(8) Regulations may provide that in prescribed circumstances the Lord Chancellor
is not required to make available representation for an individual by a
prescribed representative.

(9) 40Provision made under subsection (8) does not prejudice any right of the
individual to select another representative.

(10) The circumstances which may be prescribed under this section include that a
determination has been made by a prescribed person.

27 Position of providers of services

(1) The fact that services provided for an individual are or could be provided
under arrangements made for the purposes of this Part does not affect—

(a) the relationship between the individual and the person by whom the
5services are provided,

(b) any privilege arising out of that relationship, or

(c) any right which the individual may have to be indemnified by another
person in respect of expenses incurred by the individual,

except to the extent that regulations provide otherwise.

(2) 10A person who provides services under arrangements made for the purposes of
this Part must not take any payment in respect of the services apart from—

(a) payment made in accordance with the arrangements, and

(b) payment authorised by the Lord Chancellor to be taken.

(3) Regulations may provide that the withdrawal of a determination that an
15individual qualifies for prescribed services under this Part does not affect the
right of any person who has provided such services to the individual under
arrangements made for the purposes of this Part to remuneration for work
done before the date of the withdrawal.

28 Code of conduct

(1) 20The Lord Chancellor must publish a code of conduct to be observed by the
following persons when providing services to an individual under
arrangements made for the purposes of this Part—

(a) civil servants, and

(b) employees of a body established and maintained by the Lord
25Chancellor.

(2) The code must include—

(a) duties to avoid discrimination,

(b) duties to protect the interests of the individuals for whom services are
provided,

(c) 30duties to courts and tribunals,

(d) duties to avoid conflicts of interest,

(e) duties of confidentiality, and

(f) duties on persons who are members of a professional body to comply
with the rules of the body.

(3) 35The Lord Chancellor must lay the code, and any revision of the code, before
Parliament.

(4) The persons described in subsection (1)(a) and (b) are not subject to the
direction of the Lord Chancellor when providing services to an individual
under arrangements made for the purposes of this Part.

29 40Position of other parties, courts and tribunals

(1) Except as expressly provided by regulations, any rights conferred by or under
this Part on an individual for whom services are provided under this Part for
the purposes of proceedings do not affect—

(a) the rights or liabilities of other parties to the proceedings, or

(b) the principles on which the discretion of a court or tribunal is normally
exercised.

(2) Regulations may make provision about the procedure of a court or tribunal in
relation to services made available under this Part.

(3) 5Regulations under subsection (2) may, in particular, authorise the exercise of
the functions of a court or tribunal by—

(a) a member or officer of that court or tribunal, or

(b) another court or tribunal.

Supplementary

30 10Legal aid for legal persons

Schedule 3 (legal aid for legal persons) has effect.

31 Foreign law

(1) The civil legal services described in Part 1 of Schedule 1 do not include services
relating to any law other than the law of England and Wales, except—

(a) 15where express provision to the contrary is made by or under Part 1 of
Schedule 1;

(b) where such law is relevant for determining any issue relating to the law
of England and Wales;

(c) in other circumstances specified by the Lord Chancellor by order.

(2) 20A determination by the Director or a court under section 12, 14 or 15 that an
individual qualifies for advice, assistance or representation under this Part
does not impose a duty on the Lord Chancellor to secure that services relating
to any law other than the law of England and Wales are made available,
except—

(a) 25where such law is relevant for determining any issue relating to the law
of England and Wales;

(b) in other circumstances specified by the Lord Chancellor by order.

(3) The Lord Chancellor may not make an order under subsection (1) or (2) unless
the Lord Chancellor considers—

(a) 30that it is necessary to make the order because failure to do so would
result in a breach of—

(i) an individual’s Convention rights (within the meaning of the
Human Rights Act 1998), or

(ii) any rights of an individual to the provision of legal services that
35are enforceable EU rights, or

(b) that it is appropriate to make the order having regard to any risk that
failure to do so would result in such a breach.

32 Restriction on disclosure of information about financial resources

(1) A person to whom information is disclosed under section 21 or this subsection
40may disclose the information to any person to whom its disclosure is necessary
or expedient in connection with facilitating a determination in respect of an
individual’s financial resources that is required under section 20.

(2) A person to whom such information is disclosed must not—

(a) disclose the information other than in accordance with subsection (1),
or

(b) use the information other than for the purpose of facilitating a
5determination described in subsection (1).

(3) Subsection (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
10prosecution of an offence (or suspected offence) under the law of
England and Wales or Northern Ireland or any other jurisdiction,
except where regulations otherwise provide,

(c) the disclosure of information for the purposes of instituting, or
otherwise for the purposes of, proceedings before a court, or

(d) 15the disclosure of information which has previously been lawfully
disclosed to the public.

(4) A person who discloses or uses information in contravention of this section is
guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding
202 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) 25in 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 section to prove
that the person reasonably believed that the disclosure or use was lawful.

(6) 30In this section “enactment” includes—

(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 or Northern Ireland
35legislation.

(7) In relation to an offence under this section committed before the
commencement of section 154(1) of the Criminal Justice Act 2003, the reference
in subsection (4)(b)(i) to 12 months has effect as if it were a reference to 6
months.

33 40Restriction on disclosure of other information

(1) This section applies to information that is provided—

(a) to the Lord Chancellor, the Director, a court, a tribunal or any other
person on whom functions are imposed or conferred by or under this
Part, and

(b) 45in connection with the case of an individual seeking or receiving
services provided under arrangements made for the purposes of this
Part.

(2) Such information must not be disclosed, subject to the exceptions in section 34.

(3) A person who discloses information in contravention of this section is guilty of
an offence and liable on summary conviction to a fine not exceeding level 4 on
the standard scale.

(4) 5It is a defence for a person charged with an offence under this section to prove
that the person reasonably believed that the disclosure was lawful.

(5) Proceedings for an offence under this section may not be brought without the
consent of the Director of Public Prosecutions.

(6) Nothing in this section applies to information if—

(a) 10it is provided to a person providing services under arrangements made
for the purposes of this Part, and

(b) it is provided by or on behalf of an individual seeking or receiving the
services.

(7) Nothing in this section applies to information to which section 32 applies.

34 15Exceptions from restriction under section 33

(1) Section 33(2) does not prevent the disclosure of information—

(a) for the purpose of enabling or assisting the Lord Chancellor or the
Secretary of State for Justice to carry out their functions (whether
conferred or imposed by an Act or otherwise),

(b) 20for the purpose of enabling or assisting the Director to carry out
functions imposed or conferred on the Director by or under this Part, or

(c) for the purpose of enabling or assisting a court, tribunal or other person
on whom functions are imposed or conferred by or under this Part to
carry out those functions.

(2) 25Section 33(2) does not prevent—

(a) the disclosure of information in accordance with the law of England
and Wales 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
30England and Wales or any other jurisdiction, except where regulations
otherwise provide,

(c) the disclosure of information for the purposes of instituting, or
otherwise for the purposes of, proceedings before a court,

(d) the disclosure of information which has previously been lawfully
35disclosed to the public, or

(e) the disclosure of information for the purpose of facilitating the proper
performance by a tribunal of disciplinary functions.

(3) Section 33(2) does not prevent the disclosure of—

(a) information in the form of a summary or collection of information that
40is framed so that information relating to an individual cannot be
ascertained from it, or

(b) information about the amount of any grant, loan or other payment
made to a person by the Lord Chancellor under arrangements made for
the purposes of this Part.

(4) 45Section 33(2) does not prevent the disclosure of information for any purpose—

(a) with the consent of the individual in connection with whose case it was
provided, and

(b) if the information was provided other than by that individual, with the
consent of the person who provided the information.

(5) 5Section 33(2) does not prevent the disclosure of information after the end of the
restricted period if—

(a) the disclosure is by a person who is a public authority for the purposes
of the Freedom of Information Act 2000 or who is acting on behalf of
such a person, and

(b) 10the information is not held by the public authority on behalf of another
person.

(6) The restricted period is the period of 100 years beginning with the end of the
calendar year in which a record containing the information was first created by
a person to whom the information was provided in connection with a case
15described in section 33(1)(b).

35 Misrepresentation

(1) This section applies where a person—

(a) intentionally fails to comply with a requirement imposed by or under
this Part to provide documents or information, or

(b) 20in providing documents or information in accordance with such a
requirement, makes a statement or representation knowing or
believing it to be false.

(2) The person is guilty of an offence and liable on summary conviction to a fine
not exceeding level 4 on the standard scale.

(3) 25Proceedings in respect of an offence under this section may (despite anything
in the Magistrates’ Courts Act 1980) be brought at any time within the period
of 6 months beginning with the date on which evidence sufficient in the
opinion of the prosecutor to justify a prosecution comes to the prosecutor’s
knowledge.

(4) 30Subsection (3) does not authorise the commencement of proceedings for an
offence more than 2 years after the date on which the offence was committed.

(5) A county court is to have jurisdiction to hear and determine an action brought
by the Lord Chancellor to recover loss sustained by reason of—

(a) the failure by a person to comply with a requirement imposed by or
35under this Part to provide documents or information, or

(b) a false statement or false representation made by a person in providing
documents or information in accordance with such a requirement.

36 Status of Director and Lord Chancellor

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

(2) 40Service 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
5this 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
10contrary is proved, to be treated as having been so executed.

37 Abolition of Legal Services Commission

(1) The Legal Services Commission ceases to exist.

(2) Schedule 4 (transfer of employees and property etc of Legal Services
Commission) has effect.

(3) 15The Lord Chancellor must, as soon as practicable after subsection (1) comes
into force—

(a) prepare a report on how the Legal Services Commission has carried out
its functions in the final period,

(b) lay a copy of the report before Parliament, and

(c) 20once it has been laid, publish the report.

(4) The Lord Chancellor must, as soon as practicable after subsection (1) comes
into force—

(a) prepare a statement of accounts for the Legal Services Commission for
the final period, and

(b) 25send a copy of the statement to the Comptroller and Auditor General.

(5) The Comptroller and Auditor General must—

(a) examine, certify and report on the statement, and

(b) arrange for a copy of the statement and the report to be laid before
Parliament.

(6) 30In this section—

• “the final period” means the period—

  (a)

  beginning with end of the last financial year for which the Legal
  Services Commission produced a report and accounts in
  accordance with paragraphs 14 and 16 of Schedule 1 to the
  35Access to Justice Act 1999, and

  (b)

  ending immediately before the day on which subsection (1)
  comes into force;

• “financial year” means a period of 12 months ending with 31 March.

38 Consequential amendments

40Schedule 5 (legal aid: consequential amendments) has effect.

39 Northern Ireland: information about financial resources

Schedule 6 (Northern Ireland: information about financial resources) has effect.

40 Orders, regulations and directions

(1) Orders, regulations and directions under this Part—

(a) may make different provision for different cases, circumstances or
areas,

(b) 5may make provision generally or only for specified cases,
circumstances or areas, and

(c) may make provision having effect for a specified period.

(2) They may, in particular, make provision by reference to—

(a) services provided for the purposes of proceedings before a particular
10court, tribunal or other person,

(b) services provided for a particular class of individual, or

(c) services provided for individuals selected by reference to particular
criteria or on a sampling basis.

(3) Orders and regulations under this Part—

(a) 15may provide for a person to exercise a discretion in dealing with any
matter,

(b) may make provision by reference to a document produced by any
person, and

(c) may make consequential, incidental, supplementary, transitional or
20saving provision.

(4) Orders and regulations under this Part are to be made by statutory instrument.

(5) A statutory instrument containing an order or regulations under this Part is
subject to annulment in pursuance of a resolution of either House of
Parliament, subject to subsection (6).

(6) 25A statutory instrument containing an order or regulations listed in subsection
(7) (whether alone or with other provision) may not be made unless a draft of
the instrument has been laid before, and approved by a resolution of, each
House of Parliament.

(7) Those orders and regulations are—

(a) 30orders under section 8;

(b) orders under section 16(3);

(c) regulations under section 17(7);

(d) regulations under section 18;

(e) regulations under section 19;

(f) 35regulations under section 21;

(g) regulations under section 25(3) or (6)(b) or (d);

(h) regulations under section 26(6)(a) or (8);

(i) regulations under paragraph 5(9) of Schedule 3;

(j) regulations under paragraph 11 of Schedule 4 that amend or repeal a
40provision of an Act (as defined in that Schedule).

41 Interpretation

(1) In this Part—

• “advocacy” means the exercise of a right of audience before a court,
  tribunal or other person;

• 45“civil legal services” has the meaning given in section 7;

Legal Aid, Sentencing and Punishment of Offenders BillPage 29

• “civil servant” means an individual employed in the civil service of the
  State;

• “criminal proceedings” has the meaning given in section 13;

• “the Director” means the Director of Legal Aid Casework;

• 5“functions” includes powers and duties;

• “legal aid” has the meaning given in section 1;

• “legal proceedings” means proceedings before a court or tribunal;

• “legal services” has the meaning given in section 7;

• “modify”, in relation to an Act or instrument, includes amend, repeal or
  10revoke and related terms are to be interpreted accordingly;

• “prescribed” means prescribed by regulations (except in Schedule 6) and
  related terms are to be interpreted accordingly;

• “regulations” means regulations made by the Lord Chancellor (except in
  Schedule 6);

• 15“remuneration” includes disbursements;

• “representation” means representation for the purposes of proceedings
  and includes—

  (a)

  the advice and assistance which is usually given by a
  representative in the steps preliminary or incidental to
  20proceedings, and

  (b)

  subject to any time limits which may be prescribed, advice and
  assistance as to any appeal.

(2) In this Part references to proceedings are to be interpreted in accordance with
section 19(3).

42 25Crown application

This Part binds the Crown.

Part 2 Litigation funding and costs

Payments for legal services in civil cases

43 30Conditional fee agreements: success fees

(1) In section 58 of the Courts and Legal Services Act 1990 (conditional fee
agreements), in subsection (2)—

(a) omit “and” after paragraph (a), and

(b) after paragraph (b) insert “and

(c) 35references to a success fee, in relation to a conditional fee
agreement, are to the amount of the increase.”

(2) After subsection (4) of that section insert—

“(4A) The additional conditions are applicable to a conditional fee agreement
which—

(a) 40provides for a success fee, and

(b) relates to proceedings of a description specified by order made
by the Lord Chancellor for the purposes of this subsection.