Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 4 — Transfer of employees and property etc of Legal Services Commission
Part 2 — Transfer of property etc
181

schemes, of rights that accrue to them under those schemes before the
merger takes effect.
      (5)
Subject to sub-paragraph (4), a scheme under this paragraph has effect in
spite of any provision (of any nature) which would otherwise prevent the
merger of the LSC occupational pension schemes.
5
      (6)
In this paragraph—
“LSC occupational pension scheme” means an occupational pension
scheme under which—
(a)
the LSC has rights, powers, duties or liabilities, or
(b)
the Lord Chancellor or the Secretary of State has rights,
10
powers, duties or liabilities by virtue of a scheme under
paragraph 4(3);
“occupational pension scheme” has the same meaning as in the Pension
Schemes Act 1993.
Part 2
15
Transfer of property etc
Transfer of interests in land
6     (1)
The LSC’s interests in land are by virtue of this sub-paragraph transferred to
the Secretary of State for Communities and Local Government on the
transfer day.
20
      (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
virtue of sub-paragraph (1),

is to have effect, so far as is necessary for continuing its effect on and after
25
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
transfer day—
(a)
by or in relation to the LSC, and
30
(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
and Local Government.
      (4)
A reference to the LSC in a document, including an enactment, constituting
35
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)
In this paragraph—
“interest in land” means—
40
(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,
but does not include a charge on an estate or interest in land;
“land” includes buildings and other structures.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 4 — Transfer of employees and property etc of Legal Services Commission
Part 3 — Supplementary
182

Transfer of other property, rights and liabilities
7     (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)
Sub-paragraph (1) does not apply to—
(a)
property, rights, powers, duties and liabilities transferred by virtue
5
of paragraph 1 or 6, 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)
by or in relation to the LSC, and
(b)
for the purposes of, or in connection with, anything transferred by
10
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)
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-paragraph (1),

may be continued by or in relation to the Lord Chancellor.
      (5)
A reference to the LSC in a document, including an enactment, constituting
20
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.
Part 3
Supplementary
25
Disapplying restrictions on transfer
8
Paragraphs 1, 6 and 7 and schemes under paragraph 4 have effect in relation
to property, rights, powers, duties and liabilities in spite of any provision (of
any nature) which would otherwise prevent or restrict their transfer.
Certificate
30
9
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, 6 and 7 or a scheme under paragraph 4 is conclusive
evidence of that fact for all purposes.
Validity
35
10
The transfer of property, rights, powers, duties or liabilities by any of
paragraphs 1, 6 and 7 or a scheme under paragraph 4 does not affect the
validity of anything done by or in relation to the LSC before that paragraph
or scheme has effect.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Legal aid: consequential amendments
Part 1 — Amendments
183

Power to make further provision
11    (1)
The Lord Chancellor may by regulations make consequential,
supplementary, incidental, transitional, transitory or saving provision in
connection with—
(a)
transfers effected by this Schedule, or
5
(b)
schemes made under this Schedule.
      (2)
The regulations may, in particular, include provision modifying an
enactment (whenever passed or made), including this Schedule.
Interpretation
12    (1)
In this Schedule—
10
“the LSC” means the Legal Services Commission;
“the transfer day” means the day on which section 38(1) comes into
force (subject to regulations under sub-paragraph (2));
“enactment” means an enactment contained in an Act or an instrument
made under an Act (and “Act” includes an Act or Measure of the
15
National Assembly for Wales).
      (2)
The Lord Chancellor may by regulations amend or otherwise modify the
definition of “the transfer day” in sub-paragraph (1).
Schedule 5
Section 39

Legal aid: consequential amendments
20
Part 1
Amendments
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
25
“Legal Services Commission.”
Parliamentary Commissioner Act 1967 (c. 13)
2
In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc
subject to investigation) omit “Legal Services Commission.”
Criminal Appeal Act 1968 (c. 19)
30
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”
substitute “relating to a requirement to make a payment under regulations
under section 23 or 24 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012”.
35

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Legal aid: consequential amendments
Part 1 — Amendments
184

Children and Young Persons Act 1969 (c. 54)
4     (1)
Section 23(5A) of the Children and Young Persons Act 1969 (restrictions on
imposing security requirement on child or young person who is not legally
represented) is amended as follows.
      (2)
In paragraph (a)—
5
(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
2012 for the purposes of the proceedings but”, and
(b)
for “to be granted such a right” substitute “for such representation”.
10
      (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
and Disorder Act 1998 (restrictions on remand of boy who is not legally
represented), subsection (4A) is amended as follows.
15
      (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
Aid, Sentencing and Punishment of Offenders Act 2012 for the
purposes of the proceedings but”, and
20
(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”.
Attachment of Earnings Act 1971 (c. 32)
6
In section 1(3)(c) of the Attachment of Earnings Act 1971 (cases in which
25
magistrates’ court may make attachment of earnings order) for the words
from “paid by” to the end substitute “paid under regulations under section
23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012”.
Solicitors Act 1974 (c. 47)
30
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
the Legal Services Commission as part of the Criminal Defence Service”
substitute “criminal legal aid work”.
35
      (3)
In subsection (2A)—
(a)
for “providing representation” substitute “criminal legal aid work”,
and
(b)
for “funded by the Legal Services Commission as part of the
Community Legal Service or Criminal Defence Service” substitute
40
“provided under arrangements made for the purposes of Part 1 of
the Legal Aid, Sentencing and Punishment of Offenders Act 2012”.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Legal aid: consequential amendments
Part 1 — Amendments
185

      (4)
After subsection (3B) insert—
“(3C)
In 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 2012 of—
(a)
advice or assistance described in section 13 or 15 of that Act,
5
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)”.
10
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)
15
11
In 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)
12
The Magistrates’ Courts Act 1980 is amended as follows.
20
13
In 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
25
Act 2012.”
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,
30
Sentencing and Punishment of Offenders Act 2012”, 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”.
35
15
In 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
40
Act 2012.”
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

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Legal aid: consequential amendments
Part 1 — Amendments
186

23 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
(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—
5
(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
Punishment of Offenders Act 2012.”
18
In section 145A(4) (rules about costs orders against legal representatives) for
10
“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 2012”.
Senior Courts Act 1981 (c. 54)
19
The Senior Courts Act 1981 is amended as follows.
15
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 23 or 24 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2012”.
21
In section 29(6) (mandatory, prohibiting and quashing orders) for “orders
20
under section 17 of the Access to Justice Act 1999” substitute “requirements
to make payments under regulations under section 23 or 24 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012”.
Prosecution of Offences Act 1985 (c. 23)
22
Part 2 of the Prosecution of Offences Act 1985 (costs in criminal cases) is
25
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
Services Commission as part of the Criminal Defence Service” substitute “of
whether, for the purposes of the proceedings, representation has been
30
provided under Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012”.
24
In section 20(2) (regulations) for “by the Legal Services Commission or out
of central funds” substitute “by the Lord Chancellor under arrangements
made for the purposes of Part 1 of the Legal Aid, Sentencing and
35
Punishment of Offenders Act 2012 or out of central funds in accordance with
a costs order”.
25    (1)
Section 21 (interpretation) is amended as follows.
      (2)
In 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,
40
assistance or representation is provided under arrangements made for the
purposes of Part 1 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012”.
      (3)
In subsection (4A)(a) for the words from “not” to “Service” substitute “not to
include the cost of advice, assistance or representation provided to the
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 5 — Legal aid: consequential amendments
Part 1 — Amendments
187

person under arrangements made for the purposes of Part 1 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012”.
      (4)
In subsection (4A)(b) for the words from “the cost” to the end substitute “the
cost of such advice, assistance or representation”.
Child Abduction and Custody Act 1985 (c. 60)
5
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)
the provision of any civil legal services (within the meaning
of Part 1 of the Legal Aid, Sentencing and Punishment of
10
Offenders Act 2012) under arrangements made for the
purposes of that Part of that Act,”.
Administration of Justice Act 1985 (c. 61)
27
Part 3 of the Administration of Justice Act 1985 (legal aid) is amended as
follows.
15
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
Offenders Act 2012”.
29
In section 41(2) (reduction of fees payable where legal aid complaint
20
made)—
(a)
for “Legal Services Commission” substitute “Lord Chancellor”, and
(b)
for “by him as part of the Community Legal Service or Criminal
Defence Service” substitute “by the barrister under arrangements
made for the purposes of Part 1 of the Legal Aid, Sentencing and
25
Punishment of Offenders Act 2012”.
30    (1)
Section 42 (exclusion of barristers from legal aid work) is amended as
follows.
      (2)
In subsections (1) and (3) for “providing representation funded by the Legal
Services Commission as part of the Criminal Defence Service” substitute
30
“criminal legal aid work”.
      (3)
At the end insert—
“(5)
In 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 2012 of—
35
(a)
advice or assistance described in section 13 or 15 of that Act,
or
(b)
representation for the purposes of criminal proceedings.”
31
In section 43(3) (reduction of costs payable where legal aid complaint
made)—
40
(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
Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012”.
45