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

174

 

“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

5

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

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

Schedule 3

Section 31

 

Legal aid for legal persons

Legal persons

10

1          

In 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-

15

paragraph (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

20

Rights Act 1998), or

(b)   

any rights of the person to the provision of legal services that are

enforceable EU rights.

      (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

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of 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—

30

(a)   

has 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(and has not withdrawn either determination).

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      (2)  

Sections 11 and 12(1) apply in relation to a determination under sub-

paragraph (1)(b) as they apply in relation to a determination under section

10(2)(b).

      (3)  

Subsections (2) to (6) of section 12 apply in relation to a determination under

this paragraph as they apply in relation to a determination under section 10.

40

 
 

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

175

 

      (4)  

In sections 11 and 12 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)

5

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

10

(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

15

criminal proceedings, and

(b)   

legal persons who are before a court, tribunal or other person in

criminal proceedings.

      (3)  

Subsections (3) to (9) of section 15 apply in relation to regulations under this

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

20

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

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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,

30

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—

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(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 (provisionally or otherwise) that the legal person

qualifies for such representation in accordance with this Part,

           

(and has not withdrawn either determination).

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      (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.

 
 

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

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      (4)  

Regulations under section 16(4) and (5) apply for the purposes of sub-

paragraph (3) as they apply for the purposes of section 16(3), except to the

extent that the regulations provide otherwise.

      (5)  

Section 17(1)(b) applies in relation to an exceptional case determination

under sub-paragraph (2)(a) as it applies in relation to a determination under

5

section 16.

      (6)  

Paragraphs (a) and (b) of section 17(1) apply in relation to a determination

under sub-paragraph (2)(b) as they apply in relation to a determination

under section 16.

      (7)  

Subsections (2) to (7) of section 18 apply in relation to a determination under

10

sub-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 16 (and a decision for the purposes of such a

determination).

      (8)  

The Director may not make a provisional determination under sub-

15

paragraph (2)(b) unless authorised to do so by regulations under sub-

paragraph (9).

      (9)  

Regulations may provide that the Director may make a provisional

determination that a legal person qualifies under this Part for representation

for the purposes of criminal proceedings where—

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(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

(c)   

any prescribed conditions are met.

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     (10)  

Subsections (2) and (3) of section 20 apply in relation to regulations under

sub-paragraph (9) (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).

     (11)  

In sections 17, 18 and 20 as applied by this paragraph—

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(a)   

references 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 20(2)(d) to a determination made by the

Director or a court in reliance on section 18 or 19 has effect as if it

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were a reference to a determination by the Director under sub-

paragraph (2)(b) made otherwise than in reliance on regulations

under sub-paragraph (9).

     (12)  

Regulations may prescribe circumstances in which making representation

available to a legal person for the purposes of criminal proceedings is to be

40

taken to be in the interests of justice for the purposes of a determination

under 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.

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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

177

 

Financial resources

6          

Section 21 applies for the purposes of a determination under paragraph

3(1)(b) or 5(2)(b), or under regulations under paragraph 4 or 5(9), as if the

references to an individual included a legal person.

Contributions and costs

5

7          

In sections 23, 24, 25 and 26 and Schedule 2, references to an individual

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

in accordance with this Schedule or regulations under this Schedule.

8          

In Schedule 2, references to criminal legal aid include advice, assistance and

representation required to be made available under paragraph 4 or 5 of this

10

Schedule.

Providers of services etc

9     (1)  

Section 27 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

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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 16 includes a

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

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(c)   

the reference to regulations under section 15 includes regulations

under paragraph 4 of this Schedule.

      (3)  

In sections 28, 29 and 30, references to an individual include a legal person

to whom services are made available under this Part in accordance with this

Schedule or regulations under this Schedule.

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Supplementary matters

10         

In sections 34, 35 and 41(2), references to an individual include a legal person

to 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

Schedule 4

Section 38

 

Transfer of employees and property etc of Legal Services Commission

Part 1

Transfer of employees etc

Transfer

35

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.

 
 

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

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      (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

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

5

the individual’s employment are transferred to the Crown on the transfer

day, 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

10

virtue of sub-paragraphs (1) to (3),

           

is 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—

15

(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),

           

may be continued by or in relation to the Crown.

      (6)  

A reference to the LSC in a document, including an enactment, constituting

20

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,

as a reference to the Crown.

Continuity of employment

2          

A transfer under paragraph 1 does not break the continuity of the

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individual’s employment and accordingly—

(a)   

the 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

30

period of employment in the civil service of the State for the

purposes 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

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individual objects to becoming employed in the civil service of the State by

virtue 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),

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(b)   

the rights, powers, duties and liabilities under the individual’s

contract 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

 
 

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

179

 

(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.

Pension schemes and compensation schemes

4     (1)  

On and after the transfer day, the terms and conditions of employment of an

5

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

and that relates to—

(a)   

an occupational pension scheme,

10

(b)   

a compensation scheme, or

(c)   

rights, powers, duties or liabilities under or in connection with such

a 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

15

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,

powers, duties and liabilities under or in connection with—

(a)   

an occupational pension scheme, or

20

(b)   

a compensation scheme,

           

whether the rights, powers, duties and liabilities arise under the

occupational pension scheme 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

25

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

virtue of the transfer scheme,

           

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

30

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

effect—

(a)   

by or in relation to the LSC, and

35

(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,

including an enactment, constituting or relating to anything transferred by

40

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)  

A transfer scheme may, so far as is necessary for giving effect to that scheme,

provide that an enactment that applies in relation to compensation schemes

or occupational pension schemes applies to a compensation scheme or

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occupational pension scheme that is the subject of the transfer scheme, the

 
 

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

180

 

members of such a scheme or the transferee with modifications specified in

the transfer scheme.

      (8)  

A transfer scheme may—

(a)   

amend or otherwise modify a compensation scheme that is the

subject of the transfer scheme, and

5

(b)   

create, modify or remove rights, powers, duties or liabilities under or

in connection with such a scheme.

      (9)  

The power under sub-paragraph (8) includes power to amend or otherwise

modify any instrument relating to the constitution, management or

operation of a compensation scheme.

10

     (10)  

Transfer schemes amending or otherwise modifying a compensation

scheme have effect in spite of any provision (of any nature) which would

otherwise prevent or restrict the amendment or modification.

     (11)  

A transfer scheme may include consequential, incidental, supplementary,

transitional, transitory and saving provision.

15

     (12)  

In this paragraph—

“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

20

Schemes Act 1993;

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

Power to merge LSC occupational pension schemes

5     (1)  

The Lord Chancellor may make a scheme providing for the merger of LSC

occupational pension schemes.

25

      (2)  

A scheme under this paragraph may in particular—

(a)   

provide for the assets and liabilities of one LSC occupational pension

scheme to become assets and liabilities of another,

(b)   

create, modify or remove rights, powers, duties or liabilities under or

in connection with an LSC occupational pension scheme,

30

(c)   

provide for the winding up of an LSC occupational pension scheme,

(d)   

provide for references to one LSC occupational pension scheme in a

document, including an enactment, to have effect as references to

another, and

(e)   

include consequential, incidental, supplementary, transitional,

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transitory and saving provision.

      (3)  

A scheme under this paragraph may in particular amend or otherwise

modify—

(a)   

the trust deed of an LSC occupational pension scheme,

(b)   

rules of an LSC occupational pension scheme, and

40

(c)   

any other instrument relating to the constitution, management or

operation of an LSC occupational pension scheme.

      (4)  

A scheme under this paragraph must ensure that the merger of the LSC

occupational pension schemes does not, to any extent, deprive members of

the LSC occupational pension schemes, or other beneficiaries under those

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Revised 22 March 2012