ANNEX A |
ACCESS TO JUSTICE BILL [HL] - DELEGATED
PART 1 - THE LEGAL SERVICES 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
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'
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
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
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
- 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
- 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
Schedule 3 - Criminal Defence Service: right to
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
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
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
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,
- such transitional provisions as the Lord Chancellor
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
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
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
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.
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
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
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