ACCESS TO JUSTICE BILL [HL]
Memorandum by the Lord Chancellor's
1. This memorandum identifies provisions for
delegated legislation in the Access to Justice Bill 1998. The
object of the memorandum is to explain the purpose of the delegated
powers taken; describe why the matter is to be left to delegated
legislation; and explain the procedure selected for each power
and why it has been chosen.
2. The Access to Justice Bill contains a range
of measures for reforming the provision of legal services, both
publicly and privately funded, and the courts. It has five main
- to replace the existing Legal Aid Board and legal
aid scheme with a Legal Services Commission to run two new schemes:
the Community Legal Service and the Criminal Defence Service;
- to reform the law on conditional fee agreements
between lawyers and their clients, and on rights of audience and
rights to conduct litigation;
- to make changes to the system of appeals in the
- to facilitate various changes to the organisation
and management of magistrates' courts, and to extend and clarify
the powers of civilians to execute certain warrants; and
- to provide certain judicial officers with immunity
and indemnity against legal action and costs.
3. More detailed information about the purpose
and effect of the provisions in the Bill, and the background to
the proposals, can be found in the Explanatory Notes published
with the Bill.
4. The Bill contains 31 clauses and 3 Schedules
(in all 55 subsections and paragraphs) which contain powers to
make orders or regulations by Statutory Instrument. It also contains
clauses which clarify or extend the scope of Rules of Court made
under existing powers, and clauses which give the Lord Chancellor
power to give direction about various matters. The Annex to this
memorandum identifies and explains all the relevant clauses.
5. Most of the orders and regulations made under
the powers in this Bill will follow the negative resolution procedure.
This is because the Department considers that none of the considerations
set out in paragraph 78 of the Second Report of the Joint Committee
on Delegated Powers ("the Brooke Report") apply. The
Annex identifies the 11 powers clauses where the affirmative resolution
procedure is provided.
6. The Committee may wish to note that a number
of clauses effectively re-enact (with minor amendments), or take
analogous powers to, existing provisions. This is true, in particular,
of many of the powers taken in Part I (The Legal Services Commission),
which creates a new framework for the public funding of legal
services, replacing the framework established by the Legal Aid
Act 1988; and in Part V (Magistrates), which largely amends existing
provisions, especially the Justices of the Peace Act 1997. The
Annex indicates whether or not the powers taken in each clause
7. However, the new Community Legal Service is
a fundamentally different scheme from civil legal aid, and this
has a number of implications for the approach taken to delegated
powers. Before considering the particular powers, the Committee
may find the following general discussion helpful.
8. The existing legal aid scheme consists of
three main parts: advice and assistance under Part III of the
Legal Aid Act 1988; civil legal aid under Part IV of that Act;
and criminal legal aid under Part V.
9. Part III advice and assistance covers both
civil and criminal law. There is power to limit the scope of the
scheme by affirmative procedure regulations. The main component
of Part III is the Green Form scheme, under which solicitors can
provide a limited amount of advice and practical assistance on
almost any matter of English law. Also, the police station and
magistrates' court duty solicitor schemes are established by regulations
under Part III, although they are not mentioned specifically on
the face of the Act.
10. Parts IV and V provide for legal representation
in civil and criminal proceedings respectively. Schedule 2 to
the Act, which is amendable by affirmative procedure regulations,
defines the scope of Part IV in terms of categories of proceedings.
11. All three parts follow the same basic structure.
They are demand-led, in the sense that any lawyer take a case
under the scheme for clients who pass the relevant tests of means
and merits. The details of the schemes are mostly in secondary
- Lawyers' rates of remuneration are defined in
negative procedure regulations. The Lord Chancellor is required
to consider various statutory factors before making regulations.
- Financial eligibility limits for advice and assistance
and civil legal aid, and contribution levels for civil and criminal
legal aid, are all defined in negative procedure regulations.
So are the details of the system by which assisted persons must
repay costs incurred on their behalf from assets recovered or
preserved in the proceedings supported by the scheme.
- The interests of justice test for criminal legal
aid is defined in statute, and applied by the courts.
- The basic principles of the merits test for civil
legal aid are in statute, but the details of their application
in practice are worked out in Notes of Guidance published annually
by the Legal Aid Board (with further information in guidance issued
by the Board to solicitors with delegated powers to take decisions
on the Board's behalf).
- Other negative procedure regulations deal with
various procedural matters, such as forms of application, and
how to appeal against decisions.
In all, 13 sets of regulations made under the Legal
Aid Act are currently extant, with a total of 349 regulations
and 24 Schedules.
The Community Legal Service
12. The current legal aid scheme is essentially
reactive. The Board (and other legal aid authorities) are responsible
for assessing applications in terms of means and merits, and subsequently
for assessing and paying lawyers' bills. The establishment of
the Community Legal Service (and, to a lesser extent, of the Criminal
defence Service) is intended to reverse this position. The starting
point of the Community Legal Service (CLS) scheme is a positive
assessment of the need for legal services and of priorities for
funding that need. The Legal Services Commission (LSC) will then
take active steps to procure the services that will enable it
best to meet those priorities. The structures and powers in the
Bill are intended to establish a system for identifying priorities
and allocating resources in a rational, transparent and accountable
way, while providing flexibility to deal with unforeseen demands
and to adapt to changing needs and priorities and future developments
in the ways legal services can be delivered.
13. There are four key differences between the
CLS scheme and civil legal aid.
- First, the Commission will be under a new
duty to undertake a wide-ranging assessment of needs and priorities,
and to co-operate with other funders to determine how best the
collectively available resources can be deployed to meet those
priorities. This is the principal reason why a new Commission
is being established. Regional Legal Service Committees (see below)
will establish working partnerships with local authorities and
others to determine local needs and priorities.
- Secondly, the Community Legal Service Fund, which
will be available to the LSC to fund services directly, will have
a controlled budget. This will be set in the light of the
overall assessment of need. The Lord Chancellor will have power
to set a framework of national priorities and other policy objectives
for the use of the Fund. The LSC will be under a duty to deploy
the available resources to best effect and value within that framework.
It will be able to set more detailed priorities within the national
framework, which may vary between regions. It will do this on
the advice of its Regional Legal Services Committees (RLSCs).
- Thirdly, the potential scope of the CLS Fund
will be wider than that of legal aid (which is largely limited
to the services of lawyers), in that it will extend to non-lawyer
providers, the provision of basic information, and all forms of
alternative dispute resolution. However, it will take some time
to pay off the bulk of pre-existing legal aid cases, and to establish
the contracts and other systems needed to bring the current budget
under better control. Therefore, it will not be possible at first
to afford a significant extension of scope in practice. In time,
however, it should become easier to move away from the current
situation - in which whole categories of case either fall within
or outside the scope of legal aid - to one where cases are funded
more or less readily according to the priority given to the category
as a whole, and the relative merit of the particular case within
that category. Similarly, it may become possible and appropriate
to take a more flexible approach to financial eligibility than
the absolute limits that exist now.
- The final difference, which applies equally to
the Criminal Defence Service, will be that the LSC will take a
proactive approach to procuring services: mainly through contracts,
but also through grants, loans and employed staff. The key point
is that only those with whom the LSC decides to do business
will be able to provide services under the scheme. Contracts
will allow the LSC to define the services required, to achieve
better value for money through competition and contract payment
systems that encourage efficiency, and to adopt different approaches
to fit different circumstances.
14. The structure proposed for the new scheme
reflects these differences. It adopts a range of different instruments
to deal with matters, of which the equivalents under the current
scheme are mostly contained in regulations.
- The Lord Chancellor will be able to give directions
to the LSC about his priorities and other policy objectives for
the deployment by the LSC of the resources available to the CLS
Fund. These might include directions about how much of the fund
should be spent on contracts (etc.) for particular categories
of service or case; and directions about the weight to be given
to particular factors is assessing whether individual cases should
Directions may also authorise the LSC to fund exceptional cases
in categories generally excluded from scope for the time being
by Schedule 2.
These directions do not have a equivalent now, because
it is not possible to set priorities under the current scheme.
Directions are considered the appropriate instrument, because
they will deal with how the LSC should exercise its administrative
functions (as opposed to governing decisions about whether applicants
are 'entitled' to legal aid).
- The LSC will produce a annual plan setting
out how it intends to allocate the resources of the Fund between
regions and categories of service and case. This will be approved
by the Lord Chancellor, published and laid before Parliament.
At present, the Legal Aid Board's Corporate Plan
is not a statutory document or laid before Parliament. The regional
strategies produced by the RLSCs, which will inform the plan,
will also be published.
- The LSC will also produce a funding code,
setting out the procedures and criteria for deciding where individual
cases should be funded. The LSC will take account of seven statutory
factors and any directions from the Lord Chancellor. The code
will be approved by the Lord Chancellor and laid before Parliament.
At present, the equivalent material about elaborating
the statutory merits test, and guidance to decision-makers, is
contained in Notes of Guidance published by the Legal Aid Board;
while the procedural material is in regulations. The requirement
on the face of the statute to provide a procedure to challenge
decisions is new - the current system of appeals to Area Committees
is entirely in regulations.
- Contracts (etc.) will
define the details of the service which particular providers are
required to give, and their remuneration.
These are matters currently covered in regulations.
But under the new system it will be possible to take different
approaches to fit different circumstances. Contracts will be able
to take account, for example, of the particular requirements of
rural areas. And contract prices will reflect regional variations
in general prices and market conditions, and the relative efficiency
of different firms.
- Regulations will set
out the financial eligibility limits and conditions, and the rules
regarding the award of costs. These affect the entitlements and
obligations of the individuals helped by the scheme (and, in the
case of cost rules, third parties).
Lord Chancellor's Department
3 The LSC's powers to establish committees is in paragraph
12(2) of Schedule 1 to the Bill. Back
This reflects the two broad ways in which it is possible to give
practical effect to priorities: by letting more or fewer contracts
for particular categories of case; and through the tests which
determine which cases within a given category should be funded. Back