Select Committee on Delegated Powers and Deregulation Fifth Report


ANNEX A

ACCESS TO JUSTICE BILL [HL] - DELEGATED POWERS

PART 1 - THE LEGAL SERVICES COMMISSION

The Commission

CLAUSE 1 - THE LEGAL SERVICES COMMISSION

1.  Clause 1 establishes the Legal Services Commission. Clause 1(3) deals with the composition of the Commission. It provides that the Lord Chancellor may, by order subject to negative resolution, vary the maximum and minimum number of members of the Commission.

2.  This mirrors a similar provision in section 3(6) of the Legal Aid Act 1988 ("the 1988 Act") to change the constitution of the Legal Aid Board. Delegated legislation is appropriate since the power deals with administrative arrangements which may need to be changed from time to time in light of experience.

SCHEDULE 1 - THE LEGAL SERVICES COMMISSION

3.  Clause 1(6) gives effect to Schedule 1. This Schedule gives the Lord Chancellor various powers to make directions concerning administrative and personnel matters affecting the Commission. In each case it is not thought necessary to bring these direction making powers within the ambit of regulations. They are all concerned with the effective management and oversight of the operation of the Commission and as such may require amendment at short notice to meet particular demands or circumstances. They mirror provisions already contained in the 1988 Act.

4.  Paragraph 9(3) makes the appointment of the Chief Executive of the Commission and any holder of any other employment of a specified description subject to consultation with, and the consent of, the Lord Chancellor. Paragraph 9(4) gives the Lord Chancellor power to specify by direction which employment is to be treated as an employment of a specified description under paragraph 9(3). This carries over the provision presently found in paragraph 9(4) of Schedule 1 to the 1988 Act.

5.  Paragraph 16(2) provides that the Lord Chancellor, with the approval of the Treasury, may direct the form in which the Commission's accounts shall be kept and its statement of accounts shall be prepared. This reflects provisions in section 7(2) of the 1988 Act.

CLAUSE 2 - POWER TO REPLACE THE COMMISSION WITH TWO BODIES

6.  Clause 2 provides a power for the Lord Chancellor to establish, in place of the Legal Services Commission, two separate bodies to undertake respectively the functions of the Community Legal Service and the Criminal Defence Service. The power is exercisable by order subject to affirmative resolution. The power is sought because completing the transition from the existing legal aid scheme to the new provisions for publicly funded legal assistance will take time to achieve fully. Initially, it will be important to retain the collective expertise and infrastructure of the Legal Aid Board to enable the Commission to begin work. The Legal Aid Board's offices, staff, IT system etc. will be needed for several years, not least to go on paying bills for work already authorised when the Commission comes into being.

7.  In the future, however, as the two schemes develop, it is possible that the Community Legal Service and the Criminal Defence Service would be better administered separately as their purpose and functions will be quite different. The Community Legal Service will have a wider range of duties than the Criminal Defence Service, not just procuring services, but working with partners in the community in planning them.

8.  The power would be used to establish parallel bodies with the same basic structure as the Commission, and with all the Commission's powers and duties that are relevant to the scheme in question. The power extends to amending enactments to replace references to the Commission with references to the new bodies. The matter is left to delegated legislation to avoid the risk that a desirable change may be precluded by other pressures on the Parliamentary timetable. The use of the affirmative resolution procedure balances this against the need for adequate Parliamentary scrutiny of such a change.

CLAUSE 3 - POWERS OF COMMISSION

9.  Clause 3 sets out the Commissions' general powers for performing its functions in respect of the Community Legal Service and the Criminal Defence Service. These mirror the powers of the Legal Aid Board under section 4 of the 1988 Act, except that the Commission does not need the Lord Chancellor's approval to acquire and dispose of land; and may take part in forming bodies corporate. The limitations in section 4(4) & (5) on the Board's power to make contracts to provide legally-aided services are not repeated, reflecting the different nature of the new schemes. Clauses 7(3), 13(2) & 14(3) set out in more detail how the Commission may exercise its powers to secure the provision of legal services.

10.  Clause 3(4) enables the Commission to delegate its functions to others. For example, it is envisaged that certain decisions about the grant of help (under the Funding Code established by clause 9) may be delegated to contracted providers. Clause 3(4)(b) empowers the Lord Chancellor to make regulations, to be subject to the negative resolution procedure, prescribing arrangements that the Commission must make for the delegation of functions. This is left to delegated legislation to avoid including detailed administrative matters on the face of the Bill, and to allow changes to be made from time to time. For example, the delegation of decisions to contracted providers will depend on the development of robust monitoring systems. This power mirrors an existing provision in paragraph 11(2) of Schedule 1 to the 1988 Act, which has already been used to delegate certain decisions to franchised solicitors' firms.

CLAUSE 4 - DIRECTIONS AND GUIDANCE

11.  Clause 4 enables the Lord Chancellor to give directions to the Commission requiring it to discharge its functions in a particular way. Directions cannot be given relating to individual cases. The clause also allows the Lord Chancellor to give guidance which the Commission will be required to take into account but is not bound to comply with. The Lord Chancellor is required to publish any directions or guidance he gives.

12.  This clause is directed at ensuring the Commission exercises its functions in a way that is consistent with the Lord Chancellor's policy objectives; and, in particular, that it uses the resources of the Community Legal Service Fund in a way that meets his priorities. Clause 7(1) also refers to directions under clause 4 about priorities; and clause 6(4) refers specifically to directions about using specified amounts of the Fund for particular purposes. This will enable priorities to be given practical effect by setting budgets for particular categories of case. The department does not consider that regulations would be the appropriate mechanism for transmitting decisions about setting budgets and priorities. The direction-making power is also needed to give immediate instructions about particular issues that may arise from time to time.

The Community Legal Service

13.  Clause 5 contains no delegated powers.

CLAUSE 6 - FUNDING OF SERVICES

14.  Clause 6 established the Community Legal Services Fund. As stated above, clause 6(4) provides a specific instance of the circumstances in which the Lord Chancellor may make directions under clause 4. 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. Any directions made would have to be published (by virtue of clause 4(4)).

CLAUSE 7 - SERVICES WHICH MAY BE FUNDED

15.  Clause 7 defines the services which may be funded by the Community Legal Service Fund. Clause 7(1) is a further instance of a use of the direction-making power in clause 4. The power will ensure that any priorities for expenditure set by the Commission are in accordance with priorities decided by the Government. As before any direction would need to be published.

16.  Clause 7(5) gives effect to Schedule 2, which lists services which may not be funded. Clause 7(6) allows the Lord Chancellor to amend the Schedule, by order subject to the affirmative resolution procedure. This is similar to the power contained in section 14(2) of the 1988 Act. It will allow the Lord Chancellor to changes the scope of the Community Legal Services Fund from time to time. The use of the affirmative resolution procedure to make any changes will ensure that no category of case can be excluded from the scope of the Fund altogether without Parliamentary approval.

17.  Clause 7(7) states that the Lord Chancellor may make directions under clause 4 requiring or authorising the Commission to fund, in particular circumstances, services that are generally excluded by Schedule 2. This provides flexibility to provide a limited degree of help or funding in exceptional circumstances, while ensuring that categories which command little priority are generally excluded. For example, personal injury is to be excluded as a category because most cases are considered suitable for a conditional fee agreement. The intention is to make a direction authorising the Commission to fund personal injury cases which are not suitable for a conditional fee because of their exceptionally high investigative or overall costs, or where a wider public interest is involved.

18.  The intention is to adjust the scope of the fund over time. Currently excluded categories, which command some priority but cannot presently be afforded, may be brought in once the development of contracting and other systems brings the budget under sufficient control. Equally, further categories may be excluded if conditional fees develop to become widely available as an alternative. Paragraphs 71-77 of the Explanatory Notes explain this in more detail. Together, clauses 7(6) and 7(7) provide the mechanism for achieving these changes in a flexible and gradual way.

CLAUSE 8 - INDIVIDUALS FOR WHOM SERVICES MAY BE FUNDED

19.  Clause 8 allows the Lord Chancellor, by regulations, to set financial eligibility limits for people to receive help from the Community Legal Service Fund. It also allows him to specify circumstances and prescribe conditions under which those limits shall not apply. In effect, this clause replicates the provisions in sections 9, 13B, & 15 of the 1988 Act about financial eligibility, but draws them together into a single clause. Eligibility limits need to be uprated from time to time, and the regulations will also contain the detailed procedures for conducting means tests. As under the 1988 Act, the regulations will be subject to the negative resolution procedure.

CLAUSE 9 - CODE ABOUT PROVISION OF FUNDED SERVICES

20.  Clause 9 requires the Commission to prepare a code setting out the criteria against which the Commission will decide whether to fund (or continue to fund) services from the CLS fund for individual cases, and if so, what services to fund; and the procedures for making and challenging these decisions. The code will replace the existing merits test for civil legal aid, but it will be more flexible because it will be possible to set different criteria for different categories of case or types of service according to priorities. In settling the criteria for the code, the Commission must consider factors set out in clause 9(3), and any other factors which the Lord Chancellor directs the it to consider. The Commission may amend the code from time to time, with the Lord Chancellor's approval.

21.  The department considers that a code is the most appropriate mechanism for several reasons. The Commission can be made responsible for drawing it up, as part of its duty to ensure that the resources of the Community Legal Service Fund are used to best effect in line with the Lord Chancellor's priorities. As well as specific requirements, the code will need to include general guidance to decision-makers which would not be appropriate to regulations. The criteria and guidance will need to be amended from time to time, possibly at short notice, to reflect changes in priorities and the balance between available resources and qualifying demand, changes in the law and judicial decisions. The Code will also include detailed material about procedures which may also need to be amended (eg. as the development of contact monitoring systems allows more decisions to be delegated to providers).

22.  To ensure that Parliament has greater ability to scrutinise the provisions of the Code than is currently the case with the merits test (which is largely contained in guidance issued by the Legal Aid Board), the first version of the code approved by the Lord Chancellor, and any subsequent changes to the funding criteria, will be laid before Parliament.

CLAUSE 10 - TERMS OF PROVISION OF FUNDED SERVICES

23.  Clause 10 makes general provisions for the terms on which funded services are to be provided. Clauses 10(2), (7) & (9) (as glossed by 10(3)-(6)) provide powers for the Lord Chancellor to set, by regulations subject to the negative resolution procedure, financial conditions for receiving help from the Community Legal Service Fund. Financial conditions may take the form of fees and other contributions, and/or impose a charge on any property recovered or preserved. In effect, clause 10 carries over existing provisions contained in sections 9, 11, 13C & 16 of the 1988 Act. The use of the negative resolution procedure continues the present practice with regard to regulations made under the 1988 Act for these purposes. It is necessary to make adjustments to the financial conditions from time to time (for example to change contribution levels or alter the rate of interest applied when the enforcement of a charge on a former assisted person's home is postponed).

24.  The powers in clause 10 are wider than those in the 1988 Act in two respects.

  • they do not repeat the provision in section 16(3) of the 1988 Act which limits contributions by periodical payment to the duration of the case. In future, it will be possible to require assisted persons to continue to make contributions until they had repaid the full cost of the services they received. Clause 10(4)(b) states that interest could be added to the cost of the services in these circumstances. This is intended as a reserve power; there are no plans to impose conditions of this sort.
  • clause 10(2)(c) enables regulations to provide for assisted persons, in the event that they are successful in their dispute, to make contributions that exceed the cost of the services provided (eg. to pay an uplift like that under a conditional fee agreement). This is intended as a reserve power, which could be used, for example, to establish a self-financing contingency fund to cover certain categories of case.

CLAUSE 11 - COSTS IN FUNDED CASES

25.  Clause 11 empowers the Lord Chancellor to make regulations about the award of costs between the parties to litigation, where one or both received services from the Community Legal Service Fund. This gives equivalent powers to those in sections 34(2)(b) and 34(5) of the 1988 Act (essentially about the determination of costs). But it also brings within the ambit of regulations provisions which are currently contained on the face of the 1988 Act in sections 12, 13, 17 and 18. These provide for the circumstances in which either the assisted person or the Legal Aid Board may be required to pay the costs of the successful opponent of the assisted person.

26.  The present cost protection provisions have been criticised as providing too great an advantage in litigation for those supported by legal aid, because it is very difficult to obtain and enforce any order for costs made against assisted people. On the other hand, some degree of protection is necessary to ensure that people of limited means are not unreasonably deterred from bringing cases by the fear of having to meet a costs order. The Government intends to make some limited changes to the degree of protection provided by the 1988 Act (see Annex A to the Explanatory Notes), but it also wishes to be able to make further adjustments in the light of circumstances as experience develops. It is therefore considered appropriate to deal with these matters in regulations rather than on the face of the Bill. However, given the importance to the individual affected of these issues, it is considered appropriate to adopt the affirmative resolution procedure to for regulations that deal with the matters identified in clause 11(2)(a)-(c), that is provisions which limit the liability of the person receiving funded services, or of the Commission, to pay a costs order, or the circumstances in which a costs order may be enforced against the person receiving funded services. Other regulations under this clause, like their equivalents under the 1988 Act, will follow the negative resolution procedure.

The Criminal Defence Service

CLAUSE 12 - THE CRIMINAL DEFENCE SERVICE

27.  Clause 12 sets out the Legal Services Commission's duty to establish and maintain the Criminal Defence Service (CDS) to provide services to people involved in criminal investigations or proceedings. Clause 12(2) empowers the Lord Chancellor to make regulations extending the definition of criminal investigations to include specified investigations about people who have been convicted of an offence. Regulations under this power might be used initially to make clear that advice and assistance can be extended to the preparation of cases to go before the Criminal Cases Review Body. These regulations would, subject to negative resolution, enable the scope of advice and assistance to convicted defendants to be extended to meet changing circumstances.

28.  Clause 12(3)(f) gives him power to extend the definition of criminal proceedings. Regulations under this clause would follow the negative resolution procedure. Initially, regulations under this provision are likely to enable prisoners to be represented before Parole Board panels dealing with "discretionary lifers" and offenders detained at Her Majesty's pleasure. Representation in these cases is currently provided under the Assistance by Way of Representation scheme. Although these hearings are not strictly criminal proceedings, the expertise necessary to provide this type of representation is most likely to be found in those practitioners who will provide services as part of the Criminal Defence Service. Regulations under this power would enable new types of proceedings best provided by criminal defence practitioners to be added to the list of proceedings covered by the Criminal Defence Service. Such changes may be frequent. Regulations under this provision would be subject to negative resolution.

CLAUSE 13 - ADVICE AND ASSISTANCE

29.  Clause 13 deals with the provision of advice and assistance as part of the CDS. It establishes on the face of the Bill that people arrested and held at a police station have a right to legal advice and assistance (in line with the requirements of the Police and Criminal Evidence Act 1984), while giving the Lord Chancellor flexibility to adjust the scope of the scheme in other respects. Clause 13(1)(a) requires the Commission to secure such advice and assistance as it considers appropriate for individuals arrested and held at a police station or other premises. This is currently provided under the 24 hour duty solicitor scheme, or by a defendant's own solicitor, both of which are provided for in regulations under the 1988 Act.

30.  Clause 13(1)(b) provides that advice and assistance must also be provided in such other circumstances as the Lord Chancellor may prescribe, in regulations subject to negative resolution. This provision might be used initially to cover:

  • advice and assistance to a person being interviewed in connection with a serious service offence - which is the equivalent, for military offences, of being interviewed at a police station.
  • advice and assistance to a person who is a volunteer at a police station or other place (as currently defined in regulation 3 of the Legal Advice and Assistance Regulations 1989).
  • advice and assistance in relation to a first appearance in a magistrates' court, provided the offence falls within prescribed categories. (This is currently provided under the court duty solicitor scheme.)
  • advice and assistance at a solicitor's office, or some other authorised location, to a person who is subject to a criminal investigation or charged with or summonsed in relation to a criminal offence, or who has or intends to submit a case to the Criminal Cases Review Commission.

These are broadly the areas covered by the existing advice and assistance arrangements provided in regulations made under the Legal Aid Act 1988.

CLAUSE 14 - REPRESENTATION

31.  Clause 14 deals with the provision of representation as part of the CDS. Clause 14(2) provides for the funding of representation before courts in accordance with Schedule 3. Clause 14(2)(b) requires the Commission to secure the provision of representation for such other circumstances as the Lord Chancellor may prescribe. It is intended to use this power to require the Commission to provide representation before such bodies as the Parole Board Discretionary Lifer Panel and the panel which reviews sentences of those detained at Her Majesty's pleasure. These proceedings would be prescribed in regulations subject to the negative resolution procedure.

32.  Clause 14(5) provides those defendants who have a right of representation in accordance with Schedule 3 with a right to choose their legal representative. Clause 14(6) empowers the Lord Chancellor to make regulations restricting the defendant's right under clause 14(5) so that:

  • it does not to apply in prescribed categories of cases;
  • it does not include a right to select a representative of a prescribed description;
  • it is limited to the selection of a representative of a prescribed description;
  • the defendant can select only one representative or not more than a prescribed number of representatives; and
  • it does not include a right to select a representative if another representative has been previously selected.

33.  In due course, the intention is to limit choice to representatives with a contract with the Commission. Other intended uses of these powers are discussed in paragraphs 98-101 of the Explanatory Notes. Regulations made under Clause 14(6)(a), which would remove the defendant's right to choose altogether, will be subject to the affirmative resolution procedure; other regulations under this clause will follow the negative resolution procedure.

Schedule 3 - Criminal Defence Service: right to representation

34.  Schedule 3 governs the grant of a right to representation to a defendant in criminal proceedings. It mostly replicates material found in sections 20-22 of the 1988 Act, including the criteria that make up the interests of justice test.

Extent of right

35.  Paragraph 2(2) provides for regulations to specify the nature of "preliminary or incidental proceedings" covered by a right to representation. The power to make regulations will enable contracts and payment systems to reflect developments in what matters can be considered "preliminary or incidental". These may change from time to time. Additionally, to specify all proceedings which should or should not be considered preliminary or incidental would add unnecessary detail to the face of the Bill.

Grant of right by court

36.  Paragraph 3(1) provides that courts before which any criminal proceedings take place, or are to take place, has the power to grant a right of representation in respect of those proceedings except in circumstances prescribed in regulations. Initially, this power will be used to re-introduce the current situation in which prevent the House of Lords cannot grant representation in its own proceedings. (Regulations under paragraph 3(2) below will enable the Court of Appeal or the Courts-Martial Appeal Court to grant rights of representation in those cases instead). This is currently provided by section 20(2) of the Legal Aid Act 1988).

37.  Paragraph 3(2) provides that a court has the power to grant a right of representation before another court in circumstances prescribed in regulations. Initially, this power will be used to re-enact section 20 (3)-(8) of the Legal Aid Act 1988. The use of regulations to do so will avoid setting out very detailed provisions, including those relating to paragraph 3(1), on the face of the Bill.

38.  Paragraph 3(3) provides that the form of application for a right of representation and the form of the grant, shall be as prescribed in regulations. Forms of application and grant may need to be changed from time to time to reflect new requirements. Providing for these to be prescribed in regulations allows such changes to be made without the need for primary legislation, and also avoid setting out unnecessary detail on the face of the Bill.

Grant of right by other bodies

39.  Paragraph 4(1) enables the Lord Chancellor to provide by regulations that the Commission may grant or withdraw rights of representation, and that the Commission may delegate those functions to other persons or bodies (eg. contracted providers). It is unlikely that paragraphs 3 and 4(1) will be in force at the same time. The power to delegate the power to grant a right to other persons or bodies might be used frequently, and could be controversial. Accordingly, the power to make such regulations would be subject to affirmative resolution.

40.  Paragraph 4(2) provides for the form of application for a right of representation and the form of any grant made under subparagraph (1) to be prescribed. This provision replicates the provision at paragraph 3(3) but relates to the granting of a right of representation by the Commission or its delegates. Prescribing forms in regulations avoids providing for detailed arrangements on the face of the Bill.

41.  Paragraph 4(3) provides that regulations under subparagraph (1) may restrict or exclude the power of any court to grant representation under paragraph 3 and may contain:

  • amendments of this Schedule or any other enactment, and
  • such transitional provisions as the Lord Chancellor considers appropriate.

If the power to grant a right of representation is transferred from the courts to the Commission and/or its delegates, it will be necessary to restrict the extent to which courts can grant a right of representation. There is likely always to be a need for courts to grant a right of representation in an emergency. Regulations may therefore seek to limit rather than remove the courts' powers in this area. There may also be other circumstances where the courts would retain the power to grant a right of representation. These are likely to be learned through experience. As stated above, these regulations will be subject to the affirmative resolution procedure.

Appeals about a Right of Representation

42.  Paragraph 5 provides for an appeal against a refusal to grant a right of representation to lie to such court or body as may be prescribed, except in circumstances where regulations provide otherwise. This provision reflects section 21(10) of the Legal Aid Act 1988. The content of regulations made under this power will reflect whether the general power to grant a right of representation is exercised by the courts under paragraph 3 or the Commission and its delegates under paragraph 4. Where the courts grant, an appeal against a refusal is likely to lie with the Commission. Where the Commission grants, an appeal is likely to lie with a body similar to the existing Area Committees of the Legal Aid Board, which are made up of practising lawyers and laymen.

Criteria for grant of right

43.  Paragraph 6(2) sets out the interest of justice criteria for granting a right of representation. Paragraph 6(3) provides for the Lord Chancellor by order to amend subparagraph (2), by adding new factors or varying (but not omitting) any of the existing factors. This power reflects section 22(3) of the Legal Aid Act.

44.  Paragraph 6(4) provides for regulations to prescribe circumstances in which a right of representation shall be granted automatically. Initially, the power would be used to replicate section 21(3) of the Legal Aid Act 1988 but these may be subject to changes over time.

45.  All regulations made under Schedule 3 with the exception of those made under paragraph 4 would be subject to negative resolution procedure. Regulations made under paragraph 4 would be subject to affirmative resolution.

CLAUSE 15 - REGULATIONS ABOUT PAYMENTS TO REPRESENTATIVES

46.  Clause 15(1) empowers the Lord Chancellor, with the consent of the Treasury, to make regulations defining the remuneration payable for representation provided under the CDS scheme, other than under a contract with the Commission or by an employee of the Commission. This power will be used primarily during the transitional period while contracts are being developed and piloted. Regulations under this clause will follow the negative resolution procedure.

CLAUSE 16 - TERMS OF PROVISION OF FUNDED SERVICES

47.  Clause 16 provides that services under the CDS scheme shall be free of charge (effectively abolishing the system of means testing in every case that applies now), except where a trial judge in the Crown Court exercises a new power to order a defendant who is not acquitted to pay some or all of the cost of his representation. Clause 16(3) enables the Lord Chancellor to make regulations in respect of the orders that trial judges can make. These regulations will follow the negative resolution procedure, and may prescribe:

  • descriptions of persons against whom such orders could be made;
  • the circumstances in which orders could be made and the principles to be applied and the amount to be paid;
  • how the defendant's costs are to be calculated;
  • how information should be provided to the Commission to inform the judge's decision about an order;
  • where and how payments should be paid; and
  • how orders are to be enforced.

The substance of regulations relating to these factors are likely to be detailed and may need amendment from time to time. Their provision in regulations would avoid setting out lengthy and complex arrangements on the face of the Bill.

48.  Clause 17 contains no delegated powers.

Supplementary

CLAUSE 18 FOREIGN LAW

49.  Clause 18 specifies that the Legal Services Commission may only fund services in relation to domestic law. However, clause 18(2) states that the Lord Chancellor can make directions specifying exceptions to this rule where it appears to him necessary to do so for the purpose of fulfilling any obligation imposed on the United Kingdom by any international agreement. This provision achieves the effect of section 34(4) of the 1988 Act, except that the Lord Chancellor may make changes by directions rather than by regulations. This is consistent with the approach to making exceptions to other exclusions from scope (see clause 7(7) above).

CLAUSE 19 - RESTRICTION OF DISCLOSURE OF INFORMATION

50.  Clause 19 provides protection for information given to the Commission, the court or any other person or body authorised to undertake functions conferred by the Act. It largely mirrors the provisions presently found in section 38 of the Legal Aid Act 1988. But it extends the circumstances in which information can be divulged to cover the investigation of any offence, not just offences under the Act. Clause 19(2)(d) empowers the Lord Chancellor to make regulations, to be subject to the negative resolution procedure, limiting the circumstances in which this extension is to apply.

51.  Although the general presumption is that the Commission should be able to release any information that comes into its possession for the purpose of an investigation, it may be necessary to limit the circumstances in which it can be furnished. For example, there may be problems in releasing information in relation to an offence for which the service is being provided. These circumstances may become clear as the new scheme develops, and it is therefore necessary for the Lord Chancellor to be able to make changes by regulation.

52.  Clause 20 contains no delegated powers.

CLAUSE 21 - POSITION OF SERVICE PROVIDERS AND OTHER PARTIES

53.  Clause 21 carries over into the Bill the provisions of section 31(1) & (2) and part of section 34(2)(b) of the Legal Aid Act 1988. These provide that, except where regulations expressly provide, the fact that services are being funded by the Community Legal Service Fund or under the CDS scheme shall not affect the lawyer-client relationship, or any rights or liabilities of the person receiving services or other parties in an action involving a person receiving funded services. Clause 21(6) (following section 34(2)(b)) provides power to regulate the procedure of courts or tribunals in relation to services funded by the Community Legal Service Fund or under the CDS scheme. As with the present provisions, it is considered appropriate to make the exercise of this power subject to the negative resolution procedure.

54.  Clauses 22-24 contain no delegated powers.


 
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