House of Lords - Explanatory Note
Access to Justice Bill [H.L.] - continued          House of Lords

back to previous text

COMMENTARY

The Commission

49. Clause 1: The Legal Services Commission. This clause establishes the new Legal Services Commission, and makes provision for appointments to it. The Commission will replace the Legal Aid Board. It is considered necessary to establish a new body to reflect the fundamentally different nature of the Community Legal Service (CLS) compared to civil legal aid. Within the broad framework of priorities set by the Lord Chancellor, the Commission will be responsible for taking detailed decisions about the allocation of resources. It will also be required to liaise with other funders to develop the CLS more widely.

50. The Commission will also have a wider role in respect of the Criminal Defence Service than the Legal Aid Board does in respect of criminal legal aid. The Board has very limited responsibilities for legal aid in the higher criminal courts.

51. Clause 1 is similar to section 3 of the Legal Aid Act 1988 (the 1988 Act), which established the Legal Aid Board. However, the Commission is to be rather smaller than the Board: 7-12 members rather than 11-17. This is intended to facilitate focused decision-making.

52. Schedule 1 makes further provisions about the Commission. Paragraphs 1-10, 12, 16 and 17, concerning the members, staff, and proceedings of the Commission, mirror provisions about the Board in Schedule 1 to the 1988 Act. Paragraph 11 provides for the Commission's administrative budget, mirroring section 42(1)(b) & (2) of the 1988 Act. Paragraph 13 requires the Commission to provide any information requested by the Lord Chancellor; this mirrors provisions in section 5 of the 1988 Act. Paragraph 16 requires the Commission to prepare accounts and provides for them to be audited; this mirrors section 7 of the 1988 Act.

53. Paragraph 15 requires the Commission to prepare an annual plan, which will be laid before Parliament. This will include the Commission's detailed plans for allocating the resources available to the CLS fund. This is a new requirement. The Legal Aid Board produces annual Corporate and Business plans, but these are not statutory documents or laid before Parliament.

54. Paragraph 14 requires the Commission to prepare an annual report on the discharge of its functions. This will be laid before Parliament. It will include a report on the impact of the Commission's activities on the supply and development of legal services within the wider CLS. (Section 5 of the 1988 Act provides for the Legal Aid Board's Annual Report).

55. Part II of Schedule 10 makes transitional provisions for the replacement of the Legal Aid Board by the Commission. Briefly, it provides that, on an appointed day, the Commission shall take over all the property, rights and liabilities of the Board. Staff of the Board will automatically become staff of the Commission, and their employment and pension rights are preserved.

56. The intention is that the provisions of the 1988 Act will remain in force for any cases that have already started when the new schemes come into effect. The Commission will be responsible for the continued administration of these cases.

57. Clause 2: Power to replace Commission with two bodies. This clause allows the Lord Chancellor, by order subject to the affirmative resolution procedure (see clause 23(3)), to split the Legal Services Commission into two separate bodies, one responsible for the Community Legal Service and the other for the Criminal Defence Service.

58. The intention is to allow for the possibility that, because of the different nature and objectives of the two schemes, it may prove more effective in the longer term to administer them separately. It would not be practicable to set up two bodies from the outset. This is because of the need to retain, in substance, the existing infrastructure and expertise of the Legal Aid Board to manage the transition from legal aid to the two new schemes. This involves both administering existing cases under the old scheme and developing contracting as the principal means of procuring services under the new schemes.

59. There is no definite intention to split the administration of the two schemes in future. Rather, the intention is to review the situation once the new schemes are firmly established, probably after about 5 years.

60. Clause 3: Powers of Commission. This clause gives the Commission similar general powers to those presently enjoyed by the Legal Aid Board (section 4 of the Legal Aid Act 1988). These powers will allow the Commission to do whatever it believes is necessary in the discharge of its functions, (subject to any directions given by the Lord Chancellor under clause 4). Later clauses exemplify the ways in which the powers may be used in the provision of specific services (see clauses 7, 13 and 14)

61. Clause 4: Directions and guidance. This clause enables the Lord Chancellor to give directions and guidance to the Commission about the discharge its functions. He will be required to publish any directions and guidance. However, the Lord Chancellor may not give directions or guidance about the handling of individual cases. The Commission will be required to comply with any directions given by the Lord Chancellor and to consider any guidance.

62. The purpose of clause 4 is to establish a flexible mechanism by which the Lord Chancellor can ensure that the Commission discharges its functions in a way that meets the Government's policy objectives and, in particular, that it allocates the resources of CLS fund according to national priorities. The power to issue guidance reflects the fact that it will sometimes be more appropriate to express the desired outcomes or developments in very general terms, leaving it to the Commission to decide how best to achieve them in the light of particular circumstances.

63. As well as priorities for the CLS fund, directions might cover things like: the types of contract that the Commission should (or should not) employ for particular types of case (e.g. contracts that fix a price per case for a set number of cases); the need for the Commission's regional offices to be coterminous with the areas of other agencies in the criminal justice system; the desired numbers and/or physical accessibility of service providers, by region or locality; targets to reduce, or limit increases in, the average cost of a particular type of service or case; or maximum rates or fees to be paid for specified services, cases or items.

The Community Legal Service

64. Clause 5: The Community Legal Service. This clause describes the role of the Commission in establishing and developing the CLS, and the services which will be provided by the CLS. These will range from the provision of basic information about the law and legal services, to providing help towards preventing or resolving disputes and enforcing decisions which have been reached. The scheme will encompasses advice, assistance and representation by lawyers (which have long been available under the legal aid scheme), and also the services of non-lawyers. It will extend to other types of service, including, for example, mediation in family or civil cases where appropriate.

65. The services provided under the CLS are defined as those which are not part of the Criminal Defence Service, in order to avoid any overlap between the two schemes.

66. Clauses 5(3) and 5(4) set out the Commission's two key roles in respect of the CLS. First, it will itself fund the provision of services through the CLS Fund (which is described further in clause 6). Secondly, the Commission will facilitate the development of the wider CLS, by working with other funders of services, such as local authorities, to plan for the most appropriate use of available resources in order to match the provision of services to identified needs and priorities. The intention is to build on the work already being carried out by the Legal Aid Board's Regional Legal Services Committees in order to establish systems for determining (i) the need for legal services at regional level, and (ii) the ability of providers to supply those services, to the required standard, within the available resources.

67. The Commission will help to ensure that the services provided are of a high quality by setting and monitoring standards and establishing quality accreditation systems. The intention is that only accredited providers will be eligible for funding from the CLS fund and that other funders of legal services will be able to impose a similar requirement.

68. Clause 6: Funding of services. This clause establishes the CLS Fund and the mechanisms by which the Lord Chancellor will provide the resources to the Fund. Each year, as part of the general public expenditure planning process, the Lord Chancellor will set a budget for the CLS. This will take account of the receipts from contributions and other payments expected under the regulations made under clauses 10 and 11, with the balance of the budget provided by Lord Chancellor from money voted by Parliament. The CLS fund will therefore not be an open-ended fund, as the legal aid fund is now.

69. The Lord Chancellor will be able to direct the Board to use specified amounts within the fund to provide services of particular types. The intention is that the Lord Chancellor will divide the fund into two main budgets, for providing services in (i) family and (ii) other civil cases, while allowing the Commission limited flexibility to switch money between the two areas. The Lord Chancellor may set further requirements within these two budgets, by specifying the amount, or the maximum or minimum amount, that should be spent on, say, services from the voluntary advice sector, mediation, or cases involving a wider public interest. In this way, it will be possible to ensure that resources are allocated in accordance with the Government's priorities.

70. A duty is placed on the Commission to aim to obtain the best value for money - a combination of price and quality - when using the resources of the fund to provide services. Clause 5 describes how the Commission will seek to ensure that services are of high quality. Clause 6, in providing for a controlled budget, and clause 7 in setting out the ways, principally contracting, through which services will be procured, provide the means to control cost.

71. Clause 7: Services which may be funded. This clause builds on the general powers contained in clause 3, by setting out the ways in which the Commission may use the CLS fund to provide services. These include making contracts with or grants to service providers, or employing staff to provide services directly to the public.

72. These flexible powers are intended to give effect to one of the principal objectives of the reform of publicly funded legal services: that is the ability to tailor the provision of services, and the means by which services are to delivered, to the needs of local populations and particular circumstances. They will also allow the Commission to test new forms of service provision through pilot projects.

73. Clause 7 also gives effect to Schedule 2, which excludes from the scope of the CLS Fund specified types of service which would otherwise fall within the broad definition provided by clause 5. The Schedule may be amended by the Lord Chancellor, by regulations subject to the affirmative resolution procedure (see clause 23(3)). The Lord Chancellor may also issue directions to the Commission, authorising it to provide services within the excluded categories in exceptional circumstances. For example, the Lord Chancellor may direct that for personal injury cases (which are generally excluded by the Schedule because most such cases are suitable for conditional fees) funding by the CLS fund should nonetheless be possible where exceptionally high investigative or overall costs are likely to be necessary, or where issues of wider public interest are involved.

 
previous Section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries

© Parliamentary copyright 1998
Prepared: 3 december 1998