Legal Reform Bill
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A
B I L L
TO
Constitute a national community legal service; to create a right to legal services and legal representation; to establish a legal service of employed lawyers and legal advisers throughout England and Wales under the superintendence of a legal services commission; to set up a Ministry of Justice; to modernise the judiciary, legal services and the legal professions; to curtail the power of courts martial; and for related purposes.
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
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PART I |
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LEGAL SERVICES |
| Access to Legal Services. |
1. - (1) Every person shall have equal access to legal services appropriate to his needs for the determination of his civil rights and obligations and of any criminal charge against him.
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(2) In any case where a person requiring legal services does not have the means to pay for them and the interests of justice (which shall include the public interest, the importance of the matter to the party, the absence of alternative sources of help or remedies and the possible prospects of success) require it, such services shall be provided free of charge or at less than their economic cost.
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(3) Without prejudice to the generality of the above, the Minister of Justice shall make regulations prescribing criteria for the provision of legal services free of charge or subject to a contribution by the assisted party, the categories of work to be undertaken on a means-tested basis, the categories of work to be undertaken on a non-assisted basis, and any other elevant matter.
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(4) In particular, regulations may specify what is, or is not, to be included in advice or assistance of any description or representation for the purposes of proceedings of any description, to which this Act applies and for the inclusion in prescribed circumstances of advice or assistance given otherwise than under this Act.
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(5) Advice, assistance and representation under this Act may be given not only by lawyers who may be solicitors, barristers or legal executives but by other associated or related professional persons including accountants, surveyors, mediators, conveyancers, welfare specialists, forensic scientists and interpreters.
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| National Legal Service. |
2. - (1) It shall be a duty of the Commission established under section 3 to establish a National Legal Service to provide the legal services constituted by this Act.
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(2) The National Legal Service shall be staffed by such personnel as may in the opinion of the Commission be necessary for the proper discharge of the functions of the National Legal Service
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(3) Regulations shall be made by the Commission for the remuneration, terms of service, appointment and dismissal, training, qualifications, disciplining, pensions, superannuation and other benefits of all staff working within the National Legal Service and such regulations may prescribe the experience of any particular kind required by an applicant for employment in the service.
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| Legal Services Commission: constitution. |
3. - (1) There shall be established a body to be known as the Legal Services Commission (in this Act referred to as "the Commission").
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(2) The Commission shall consist of no fewer than ten and no more than seventeen members appointed for a term of five years by the Minister of Justice, who shall also appoint one of the members to be chairman.
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(3) The Minister of Justice may by order substitute for the number for the time being specified in sub-section (2) above as a maximum or minimum membership of the Commission such other number as he thinks appropriate.
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(4) Not fewer than six members of the Commission shall be lawyers of whom at least three shall be barristers and at least three shall be solicitors appointed after consultation with the General Council of the Bar and the Law Society respectively and not fewer than four shall be lay persons each of whom has shown by reference to his professional or personal experience, his expertise in or knowledge of the provision of legal services, the work of the courts and social conditions and management.
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(5) The chairman or any member of the Commission may resign office by giving notice in writing to the Minister of Justice and if the chairman ceases to be a member he shall cease to be the chairman.
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(6) The Minister of Justice may terminate the appointment of a member of the Commission if satisfied that he has become bankrupt or made an arrangement with his creditors, is unable to carry out his duties as a Commission member by reason of physical or mental illness, has been absent from meetings of the Commission for a period of longer than three consecutive months without the permission of the Commission; or he is otherwise unable or unfit to discharge the functions of a member of the Commission.
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(7) The Commission may pay to its members such remuneration and make provision for the payment of such pensions, allowances or gratuities to or in respect of its members as the Minister of Justice may, with the approval of the Treasury determine.
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(8) The Commission shall appoint a person to be Chief Executive of the Commission who shall be responsible to the Commission for the exercise of its functions.
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(9) The Commission may appoint such other employees as it thinks fit and shall make in respect of its employees such arrangements as with the approval of the Minister of Justice and the consent of the Treasury it may determine for providing pensions, allowances or gratuities by way of compensation for loss of employment.
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(10) Subject to anything in regulations under section 1 the Commission may regulate its own procedure and may make such arrangements as it considers appropriate for the discharge of its functions including the delegation of specified functions and shall make such arrangements for the delegation of functions to committees and persons as may be prescribed.
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(11) Subject to anything in regulations under section 1 committees may be appointed and may be dissolved by the Commission and may include or consist entirely of persons who are not members of the Commission.
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| Legal Services Commission: duties. |
4. - (1) The administrative duties of the Commission in relation to the National Legal Service shall include financial control and budgeting, employment of staff and staff discipline, publicity and public relations, research, quality control and supervision, client complaints and appeals, professional indemnity and other insurance and such other functions as the Commission shall reasonably determine
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(2) The Commission shall draw up and promulgate regional plans for the delivery of legal services in England and Wales on a three-yearly basis such plans to set out the factors influencing and predictions of need and types of legal service available in each region and may delegate to regional offices any of its functions relating to that region.
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(3) The Commission may make schemes for the delivery of legal services which may include facilities for first recourse advice, diagnosis and simple early resolution where possible, free of charge or subject to means-testing, referral to agencies without the National Legal Service and representation of local groups.
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(4) The Commission shall constitute an inspectorate whose function shall be to ensure that legal services are being properly provided, to investigate complaints and take remedial action and if necessary to supervise the work of any person employed in the National Legal Service and such regulations may provide for the Commission to have powers of access to premises, to require the production of any papers or records relating to legal services and any other function reasonably required to determine whether legal services are being properly provided.
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(5) The Commission shall from time to time furnish the Minister of Justice with such information as he may require relating to the discharge of its functions.
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(6) The Commission shall have regard in discharging its duties to such guidance as may from time to time be given by the Lord Chancellor but such guidance shall not relate to the consideration or disposal in individual cases of legal services provided by the National Legal Service.
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(7) The Commission shall prepare and from time to time revise as necessary a code of conduct for all persons employed in the National Legal Service.
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(8) The Commission shall prepare and publish as soon as practicable after 31st March in each year an annual report containing such information as is required by the Minister of Justice.
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(9) The Comission shall so far as practicable ensure that-
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(a) any person seeking to become an assisted party has a choice of not less than three lawyers and, where lawyers are with a scheme operating in such a manner as to share professional addresses, that he has a choice of lawyers operating from not less than three professional addresses; |
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(b) any lawyer who provides legal services does so continuously throughout the proceedings unless there be good reason to the contrary; |
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(c) any assisted party is given notice that he may for good reason apply either in the Court in which the proceedings are taking place, or to the Commission to change his lawyer; and |
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(d) legal services should be always available in emergency situations although there might not be a choice of lawyers on such occasions. |
| Legal Services Commission: powers. |
5. - (1) Subject to the provisions of this Act, the Commission may do anything-
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(a) which it considers necessary or desirable to provide or secure the provision of legal services under this Act; or |
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(b) which is calculated to facilitate or is incidental or conducive to the discharge of its functions; |
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and legal services may be provided in different ways in different areas in England and Wales and in different ways in different fields of law.
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(2) Without prejudice to the generality of subsection (1) above, the Commission shall have power-
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(a) to enter into any contract, including any contract to acquire or dispose of land; |
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(b) to make grants (with or without conditions, including conditions as to repayment); |
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(e) to promote or assist in the promotion of publicity relating to the functions of the Commission or of the National Legal Service; |
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(f) to undertake any inquiry or investigation which the Commission considers necessary or expedient in relation to the discharge of its functions; and |
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(g) to give the Minister of Justice such advice as it may consider appropriate in relation to the provision of legal services under this Act. |
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(3) The Commission shall have power to borrow money and to acquire and hold shares in bodies corporate or take part in forming bodies corporate.
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| National Legal Service: funding and accounting. |
6. - (1) The Commission shall annually prepare and publish not later than four months before the commencement of each accountancy year a budget showing anticipated income and expenditure of the National Legal Service for the ensuing accounting year.
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(2) The budget shall contain an estimate of the anticipated income recoverable from clients of the National Legal Service and of the contribution required from central funds.
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(3) The budget shall be considered by the Minister of Justice and the Treasury and subject to their approval there shall be paid to the Commission such sums as are approved not later than the commencement of the accounting year in question.
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(4) Within two months of the end of each accounting year the Commission shall prepare and publish a statement of accounts for the year in such form as the Minister of Justice with the approval of the Treasury directs and such accounts shall be audited by persons to be appointed in respect of each financial year by the Minister of Justice in accordance with a scheme of audit approved by him and the auditors shall be furnished by the Commission with copies of the statement and shall prepare a report to the Minister of Justice and the Treasury on the accounts and statement.
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(5) No person shall be qualified to be appointed auditor under subsection (4) above unless he is a member of a body of accountants established in the United Kingdom and for the time being recognised for the purposes of Section 389 (1)(a) of the Companies Act 1985, authorised by the Secretary of State under Section 389 (1)(b) of that Act to be appointed auditor of a company; or a member of the Chartered Institute of Public Finance and Accountancy but a firm may be so appointed if each of its members is qualified to be so appointed.
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(6) Upon completion of the audit of the account the auditor shall send to the Minister of Justice and to the Treasury a copy of the statement of accounts and of their report and the Minister of Justice shall send a copy of the statement and of the report to the Comptroller and Auditor General and either of them may inspect the accounts and any records relating to them.
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(7) The Minister of Justice shall lay before each House of Parliament a copy of every statement of accounts and report of the auditors sent to him under subsection (6) above.
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| Legal Services Fund. |
7. - (1) The Commission shall establish and maintain a separate legal services fund.
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(2) Subject to anything in regulations under section 1, there shall be paid out of the fund-
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(a) such sums as are, by virtue of any provision of this Act, due from the Commission in respect of remuneration and expenses properly incurred in connection with that provision under this Act, of legal services; |
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(b) costs awarded to any person not receiving services provided by the Commission ("an unassisted party"); |
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(c) any part of a contribution repayable by the Commission under regulation; |
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(d) such other payments for the purposes of this Act as the Minister of Justice may, with the concurrence of the Treasury, determine. |
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(3) Subject to anything in regulations under section 1, there shall be paid into the fund-
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(a) any contribution payable to the Commission by any person in respect of legal services under this Act; |
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(b) any sum awarded under an order of a court or agreement as to costs in any proceedings in favour of any person receiving legal services provided by the Commission and which is payable to the Commission; |
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(c) any sum which is to be paid out of property recovered or preserved for any person receiving services provided by the Commission; |
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(d) any sum in respect of the costs under section 8 which is repaid to the Commission under that section; |
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(e) such other receipts of the Commission as the Minister of Justice may, with the concurrence of the Treasury, determine. |
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(4) In this Part "accounting year" means the period beginning with the day on which the Commission is established and ending with 31st March next following and each subsequent period of 12 months ending with 31st March in each year.
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| Costs of successful unassisted parties. |
8. - (1) This section applies to proceedings in which a person receives legal services wholly or partly free of charge and which are finally decided in favour of a party receiving legal services other than free of charge.
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(2) In any proceedings to which this section applies the court by which the proceedings are so decided may, subject to subsections (3) and (4) below, make an order for the repayment by the Commission to the unassisted party of the whole or any part of the costs incurred by him in the proceedings.
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(3) Before making an order under this section, the court shall consider what order for costs should be made against the assisted party and for determining his liability in respect of such costs.
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(4) An order under this section may only be made if-
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(a) an order for costs would be made in the proceedings apart from this Act; |
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(b) in the case of costs of proceedings in a court of first instance, those proceedings were instituted by the assisted party and the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made; and |
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(c) in any case, the court is satisfied that it is just and equitable in all the circumstances of the case that provision for those costs should be made out of public funds. |
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(5) Without prejudice to any other provision restricting appeals from any court, no appeal shall lie against an order under this section, or against a refusal to make such an order, except on a point of law.
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(6) In this section, "costs" means costs as between party and party, and includes the costs of applying for an order under this section; and where a party begins to receive the assistance after the proceedings have been instituted, or ceases to receive the assistance before they are finally decided or otherwise receives the assistance in connection with part only of the proceedings, the reference in subsection (2) above to the costs incurred by the unassisted party in the proceedings shall be construed as a reference to so much of those costs as is attributable to that part.
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(7) For the purposes of this section proceedings shall be treated as finally decided in favour of the unassisted party-
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(a) if no appeal lies against the decision in his favour; |
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(b) if an appeal lies against the decision with leave, and the time limited for applications for leave expires without leave being granted; or |
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(c) if leave to appeal against the decision is granted or is not required, and no appeal, is brought within the time limited for appeal; and where an appeal against the decision is brought out of time the court by which the appeal (or any further appeal in those proceedings) is determined may make an order for the repayment by the unassisted party to the Commission of the whole or any part of any sum previously paid to him under this section in respect of those proceedings. |
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(8) Where a court decides any proceedings in favour of the unassisted party and an appeal lies (with or without leave) against that decision, the court may, if it thinks fit, make or refuse to make an order under this section forthwith, but if an order is made forthwith it shall not take effect-
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(a) where leave to appeal is required, unless the time limited for applications for leave to appeal expires without leave being granted; |
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(b) where leave to appeal is granted or is not required, unless the time limited for appeal expires without an appeal being brought. |
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(9) For the purposes of this section, "court" includes a tribunal.
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| Complaints. |
9. - (1) Any person requiring or receiving legal services within the National Legal Service may complain to the Commission that the person employed by the National Legal Service providing legal services to him has failed in his professional duty.
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(2) The Commission shall investigate every complaint made to it which has been substantiated in such manner as it may reasonably require and whether or not a complaint is upheld the Commission shall report to the complainant the outcome of the investigation.
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(3) Any person holding judicial office may complain to the Commission in the same manner as any other party and in the event of such a complaint being upheld the Commission shall make a report to the Minister of Justice.
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(3) Any lawyer or other person employed within the National Legal Service providing legal services may lodge a grievance with the Commission in respect of any other lawyer where that grievance arises from an incident which has occurred during the provision of legal services and the Commission shall investigate any such grievance adjudicate on it and, subject to anything in regulations under section 1, determine it.
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(4) In the event of a complaint or grievance under this section being upheld the Commission may decide that the offending person shall be excluded from providing legal services for any period of time, or upon such terms as it considers appropriate.
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(5) Where any person providing legal services within the National Legal Service finds that he is professionally embarrassed in consequence of a conflict between the persons for whom he is acting he shall immediately refer those persons to other employees within the National Legal Service, provided he has more than five years' experience within the National Legal Service and if appropriate after having obtained authorisation from the Commission.
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| Private work. |
10. Any lawyer working as an employee of the National Legal Service may provide legal services on a private basis to an assisted person in accordance with regulations under section 1.
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