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Session 1998-99
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Access to Justice Bill [H.L.]


 

These notes refer to the Access to Justice Bill [H.L.]
as introduced in the House of Lords on 2nd December 1998 [HL Bill 4]

ACCESS TO JUSTICE BILL [H.L.]


Explanatory Notes

Introduction

1. These explanatory notes relate to the Access to Justice Bill as introduced in the House of Lords on 2 December 1998. They have been prepared by the Lord Chancellor's Department in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

OVERVIEW

3. This Bill replaces the legal aid system with two new schemes; and makes provisions about rights to supply legal services, appeals, magistrates and magistrates courts, and the immunity from action and costs of certain officials exercising judicial functions. 4. The provisions in the Bill form part of the wide-ranging programme of reforms to legal services and the courts, described in the Government's White Paper, Modernising Justice, published on 2 December 1998. 5. Except where noted, the Bill only affects England and Wales.

6. These Notes are divided into five main parts, reflecting the main topics in the Bill.

A. Funding of Legal Services (Parts I & II and clauses 27 & 28)

7. Part I of the Bill provides for two new schemes, replacing the existing legal aid scheme, to secure the provision of publicly-funded legal services for people who need them.

8. It establishes a Legal Services Commission to run the two schemes; and enables the Lord Chancellor to give the Commission directions and guidance about how it should exercise its functions.

9. It requires the Commission to establish, maintain and develop a Community Legal Service. A new Community Legal Service fund will replace the legal aid fund in civil and family cases. The Commission will use the resources of the fund, in a way that reflects priorities set by the Lord Chancellor and its duty to secure the best possible value for money, to procure or provide a range of legal services. The Commission will also have a duty to liaise with other funders of legal services to facilitate the developments of co-ordinated plans for making the best use of all available resources. The intention is to develop a network of legal service providers of assured quality, offering the widest possible access to information and advice about the law, and assistance with legal problems.

10. The Commission will also be responsible for running the Criminal Defence Service, which replaces the current legal aid scheme in criminal cases. The new scheme is intended to ensure that people suspected or accused of a crime are properly represented, while securing better value for money than is possible under the legal aid scheme.

11. Part II makes two minor changes to the legal aid scheme in Scotland.

12. Clauses 27 and 28 (in Part III) relate to privately-funded litigation. They amend the law on conditional fee agreements between lawyers and their clients, and the recovery of insurance premiums as costs between the parties to litigation.

B. Rights of audience etc. (Clauses 29-37)

13. The rest of Part III reforms the law relating to lawyers' rights of audience before the courts, and rights to conduct litigation.

  • It replaces the Lord Chancellor's Advisory Committee on Legal Education and Conduct with a new Legal Services Consultative Panel.

  • It provides that, in principle, all lawyers should have full rights of audience before any court, subject only to meeting reasonable training requirements.

  • It reforms the procedures for authorising further professional bodies to grant rights of audience or rights to conduct litigation to their members; and for approving changes to professional rules about the conduct of these rights.

C. Appeals and court procedure (Part IV - clauses 38-48)

14. Part IV reforms the system for appeals in civil and family cases.

  • It establishes the principles that should underlie the jurisdiction of the civil courts to hear appeals.

  • It gives the Lord Chancellor power to define the venue for appeal in different categories of case.

  • It changes the law relating to the constitution of the Civil Division of the Court of Appeal.

The intention is to ensure that the appellate system reflects the principle, which underlies the Government's wider programme of civil justice reforms, that cases should be dealt with in a way that is proportionate to the issue at stake.

15. Part IV establishes the jurisdiction of the High Court to hear cases stated by the Crown Court for an opinion of the High Court. It enables these and certain other applications to the High Court to be listed before a single judge. It also prohibits the publication of material likely to identify a child involved in proceedings before the High Court or a county court.

D. Magistrates (Part V - clauses 49-67)

16. Part V provides for various changes to the organisation and management of magistrates' courts.

  • It unifies the Provincial and Metropolitan Stipendiary Magistrates into a single bench.

  • It abolishes the requirement for magistrates to sit on cases committed to the Crown Court for sentence.

  • It extends and clarifies the powers of civilians to execute warrants; this is intended to enable this function to be transferred from the police to the magistrates' courts.

E. Immunity and indemnity (Parts VI - clauses 68-74)

17. Part VI makes provision about immunity from action and costs and indemnities for certain officials exercising judicial functions.

18. Part VII (clauses 75-80) makes general supplementary provisions.

A. FUNDING OF LEGAL SERVICES (Clauses 1-28)

SUMMARY

19. The Bill reforms the legal aid system in England and Wales, and amends the law relating to conditional fee agreements between lawyers and their clients. It also makes minor amendments to the legal aid scheme in Scotland.

20. The Government's intention is to increase access to justice, by:

  • reforming the legal aid scheme, which provides public funding for legal services, in order to ensure that resources can be allocated in a way that reflects priorities, and secure better value for money.

  • co-ordinating central Government funding with funding from other sources, in particular local authority grants to advice centres, to ensure that the available resources are used to the best effect overall.

  • extending the scope and improving the operation of conditional fees, in order to allow more people to fund litigation privately.

21. The Bill replaces the existing legal aid system with two separate schemes for funding services in civil and criminal matters. These will be known as the Community Legal Service and the Criminal Defence Service respectively.

  • Both schemes will be run by a new body, the Legal Services Commission, which will replace the Legal Aid Board.

  • Both will secure legal services for people who need them largely through contracts with quality assured providers. But the Commission will also be able to make grants and loans, and employ staff to provide services directly.

Community Legal Service

22. The Legal Services Commission will have two main duties in respect of the Community Legal Service (CLS).

  • First, it will manage a Community Legal Service fund, which will replace legal aid in civil and family cases. The CLS fund will be used to secure the provision of appropriate legal services, within the resources made available to it, and according to priorities set by the Lord Chancellor and by regional and local assessments of need. A Funding Code, drawn up by the Commission and approved by the Lord Chancellor, will set out the criteria and procedures for deciding whether to fund individual cases. As spending is brought under better control, it will be possible to expand the scope of the fund over time into areas that are not covered by legal aid. In particular, the intention is to extend the availability of alternatives to lawyers and courts, like mediation and advice agencies.

  • Secondly, as part of a wider CLS, the Commission will, in co-operation with local funders and interested bodies, develop local, regional and national plans to match the delivery of legal services to identified need and priorities.

23. The development of the CLS at a local level is dependent in practice on the formation of Community Legal Service Partnerships (CLSPs) in each local authority area. (These do not require specific provisions in the Bill). The CLSP will provide a forum, in each local authority area, for the local authority and the Legal Services Commission, and if possible other significant funders, to come together to co-ordinate funding and planning of local legal and advice services, to ensure that delivery of services better matches local needs.

24. The Commission will develop a system of kitemarking, on the basis of common quality criteria. This should reinforce public confidence that the voluntary sector is a provider of good quality legal advice and help.

25. The Commission and the CLSPs will encourage innovation by the voluntary sector in the delivery of advice through increased use of information technology and mobile 'outreach' services providing help to people in remote communities.

26. Overall, the intention is to:

  • make best use of all the resources available for funding legal services, by facilitating a co-ordinated approach to planning.

  • improve value for money through contracting and the development of quality assurance systems.

  • establish a flexible system for allocating central Government funding, in a rational and transparent way within a controlled budget, so as to provide legal services where they are judged to be most needed.

  • ensure that the scheme is capable of adapting to meet changing priorities and opportunities.

 
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Prepared: 3 december 1998