Access to Justice Act 1999 (c. 22)

(The document as of February, 2008)

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(5) Subject to subsection (4), the provisions of this Part (including paragraph 1, but not the rest, of Schedule 14) extend to England and Wales, Scotland and Northern Ireland.

(6) Subject to the preceding provisions, this Act extends to England and Wales.

(7) For the purposes of the [1998 c. 46.] Scotland Act 1998 this Act, so far as it extends to Scotland, shall be taken to be a pre-commencement enactment within the meaning of that Act.

110 Short title

This Act may be cited as the Access to Justice Act 1999.

SCHEDULES

Section 1.

SCHEDULE 1 Legal Services Commission

Incorporation and status

1 The Commission shall be a body corporate.

2 The Commission shall not be regarded--

(a) as the servant or agent of the Crown, or

(b) as enjoying any status, immunity or privilege of the Crown;

and the Commission's property shall not be regarded as property of, or held on behalf of, the Crown.

Tenure of members

3 (1) Subject to paragraphs 4 and 5, any member of the Commission shall hold and vacate office in accordance with the terms of his appointment.

(2) But a person shall not be appointed a member of the Commission for a period of more than five years.

4 (1) A member of the Commission, or the person appointed to chair it, may resign office by giving notice in writing to the Lord Chancellor.

(2) If the person appointed to chair the Commission ceases to be a member of it, he shall cease to chair it.

(3) A person who ceases to be a member of the Commission, or to chair it, shall be eligible for reappointment.

5 The Lord Chancellor may terminate the appointment of a member of the Commission if satisfied that--

(a) he has become bankrupt or made an arrangement with his creditors,

(b) he is unable to carry out his duties as a member of the Commission by reason of illness,

(c) he has been absent from meetings of the Commission for a period longer than six consecutive months without the permission of the Commission, or

(d) he is otherwise unable or unfit to discharge the functions of a member of the Commission.

Members' interests

6 (1) Before appointing a person to be a member of the Commission, the Lord Chancellor shall satisfy himself that that person will have no such financial or other interest as is likely to affect prejudicially the exercise or performance by him of his functions as a member of the Commission.

(2) The Lord Chancellor shall from time to time satisfy himself with respect to every member of the Commission that he has no such interest as is referred to in sub-paragraph (1).

(3) Any person whom the Lord Chancellor proposes to appoint as, and who has consented to be, a member of the Commission, and any member of the Commission, shall (whenever requested by the Lord Chancellor to do so) supply him with such information as the Lord Chancellor considers necessary for the performance by the Lord Chancellor of his duties under this paragraph.

7 (1) A member of the Commission who is in any way directly or indirectly interested in an individual contract entered into or proposed to be entered into, or an individual grant, loan or other payment made or proposed to be made, by the Commission shall disclose the nature of his interest at a meeting of the Commission; and--

(a) the disclosure shall be recorded in the minutes of the Commission, and

(b) the member shall not take any part in any deliberation or decision of the Commission with respect to that contract or grant, loan or other payment.

(2) For the purposes of sub-paragraph (1), a general notice given at a meeting of the Commission by a member of the Commission to the effect--

(a) that he is a person with whom a contract may be entered into, or to whom a grant, loan or other payment may be made, by the Commission, or

(b) that he is a member of a specified body with which a contract may be entered into, or to which a grant, loan or other payment may be made, by the Commission,

shall be regarded as a sufficient disclosure of his interest in relation to any contract subsequently entered into with, or grant, loan or other payment made to, him or the body.

(3) A member of the Commission need not attend in person at a meeting of the Commission in order to make any disclosure which he is required to make under this paragraph if he takes reasonable steps to secure that the disclosure is made by a notice which is brought up and read out at the meeting.

Remuneration of members

8 (1) The Commission may--

(a) pay to its members such remuneration, and

(b) make provision for the payment of such pensions, allowances or gratuities to or in respect of its members,

as the Lord Chancellor may determine.

(2) Where a person ceases to be a member of the Commission otherwise than on the expiry of his term of office, and it appears to the Lord Chancellor that there are special circumstances which make it right for that person to receive compensation, the Lord Chancellor may require the Commission to make that person a payment of such amount as the Lord Chancellor may determine.

Staff

9 (1) The Commission shall appoint a person to be the chief executive of the Commission who shall be responsible to the Commission for the exercise of its functions.

(2) The Commission may appoint such other employees as it thinks fit.

(3) The Commission may only appoint a person to be--

(a) its chief executive, or

(b) the holder of any other employment of a description specified by the Lord Chancellor by direction given to the Commission,

after consultation with, and subject to the approval of, the Lord Chancellor.

(4) An appointment under this paragraph may be made on such terms and conditions as the Commission, with the approval of the Lord Chancellor, may determine.

10 (1) The Commission shall make, in respect of such of its employees as, with the approval of the Lord Chancellor, it may determine such arrangements for providing pensions, allowances or gratuities, including pensions, allowances or gratuities by way of compensation for loss of employment, as it may determine.

(2) Arrangements under sub-paragraph (1) may include the establishment and administration, by the Commission or otherwise, of one or more pension schemes.

(3) If an employee of the Commission--

(a) becomes a member of the Commission, and

(b) was by reference to his employment by the Commission a participant in a pension scheme established and administered by it for the benefit of its employees,

the Commission may determine that his service as a member shall be treated for the purposes of the scheme as service as an employee of the Commission whether or not any benefits are to be payable to or in respect of him by virtue of paragraph 8.

(4) Where the Commission exercises the power conferred by sub-paragraph (3), any discretion as to the benefits payable to or in respect of the member concerned which the scheme confers on the Commission shall be exercised only with the approval of the Lord Chancellor.

Funding of costs relating to administration etc.

11 (1) The Lord Chancellor shall pay to the Commission such sums as he may determine as appropriate for--

(a) the exercise by the Commission of functions in relation to the Community Legal Service other than the funding of services, and

(b) the administrative costs of the Commission.

(2) The Lord Chancellor may--

(a) determine the manner in which and times at which the sums mentioned in sub-paragraph (1) are to be paid to the Commission, and

(b) impose conditions on the payment of those sums.

Proceedings

12 (1) Subject to anything in any instrument made under this Part, the Commission may regulate its own proceedings.

(2) Committees--

(a) may be appointed, and may be dissolved, by the Commission, and

(b) may include, or consist entirely of, persons who are not members of the Commission,

but the Lord Chancellor may by direction require the Commission to make such provision relating to committees as is specified in the direction.

(3) A committee shall act in accordance with such instructions as the Commission may from time to time give; and the Commission may provide for anything done by a committee to have effect as if it had been done by the Commission.

(4) The Commission may pay to the members of any committee such fees and allowances as the Lord Chancellor may determine.

(5) The validity of any proceedings of the Commission or of any committee appointed by the Commission shall not be affected by any vacancy among its members or by any defect in the appointment of any member.

Provision of information

13 (1) The Commission shall provide the Lord Chancellor with such information as he may require relating to its property and to the discharge or proposed discharge of its functions.

(2) The Commission shall--

(a) permit any person authorised by the Lord Chancellor to inspect and make copies of any accounts or documents of the Commission, and

(b) provide such explanation of them as any such person, or the Lord Chancellor, may require.

Annual report

14 (1) The Commission shall provide to the Lord Chancellor, as soon as possible after the end of each financial year, a report on how it has during that year--

(a) funded services from the Community Legal Service Fund,

(b) funded services as part of the Criminal Defence Service, and

(2) The Lord Chancellor may by direction require the Commission to deal with the matters specified in the direction in reports, or a particular report, under this paragraph.

(3) The Lord Chancellor shall lay before each House of Parliament a copy of each report provided to him under this paragraph and the Commission shall publish a report once it has been so laid.

(4) In this paragraph and paragraphs 15 and 16 "financial year" means--

(a) the period beginning with the day on which the Commission is established and ending with the next 31st March, and

(b) each subsequent period of twelve months ending with 31st March.

Annual plan

15 (1) The Commission shall, before the beginning of each financial year (other than that specified in paragraph 14(4)(a)), prepare a plan setting out how it intends in that year--

(a) to fund services from the Community Legal Service Fund,

(b) to fund services as part of the Criminal Defence Service, and

and the plan shall include a summary of what the Commission has ascertained in the exercise of its functions under section 4(6).

(2) The Lord Chancellor may by direction require the Commission to deal with the matters specified in the direction in plans, or a particular plan, under sub-paragraph (1).

(3) The Commission shall send a copy of each plan prepared under sub-paragraph (1) to the Lord Chancellor.

(4) If the Lord Chancellor approves it, he shall lay a copy before each House of Parliament and the Commission shall publish the plan once it has been so laid.

(5) If he does not approve it, he shall by direction require the Commission to revise it in accordance with the direction; and the direction shall include the Lord Chancellor's reasons for not approving the plan.

(6) When the Commission has revised the plan it shall send the Lord Chancellor a copy of the revised plan and he shall lay a copy before each House of Parliament and the Commission shall publish the revised plan once it has been so laid.

Accounts and audit

16 (1) The Commission shall keep accounts and shall prepare in respect of each financial year a statement of accounts.

(2) The accounts shall be kept, and the statement of accounts shall be prepared, in such form as the Lord Chancellor may, with the approval of the Treasury, specify by direction given to the Commission.

(3) The Commission shall send a copy of the statement of accounts in respect of each financial year to the Lord Chancellor and to the Comptroller and Auditor General within such period after the end of the financial year to which it relates as the Lord Chancellor may specify by direction given to the Commission.

(4) The Comptroller and Auditor General shall--

(a) examine, certify and report on each statement of accounts received by him under sub-paragraph (3), and

(b) lay a copy of each such statement of accounts, and his report on it, before each House of Parliament.

Instruments

17 (1) The fixing of the seal of the Commission shall be authenticated by a member of the Commission or by some other person authorised either generally or specially by the Commission to act for that purpose.

(2) A document purporting to be duly executed under the seal of the Commission or to be signed on the Commission's behalf--

(a) shall be received in evidence, and

(b) unless the contrary is proved, shall be deemed to be so executed or signed.

Section 6.

SCHEDULE 2 Community Legal Service: excluded services

The services which may not be funded as part of the Community Legal Service are as follows.

1 Services consisting of the provision of help (beyond the provision of general information about the law and the legal system and the availability of legal services) in relation to--

(a) allegations of negligently caused injury, death or damage to property, apart from allegations relating to clinical negligence,

(b) conveyancing,

(d) the making of wills,

(e) matters of trust law,

(f) defamation or malicious falsehood,

(g) matters of company or partnership law, or

(h) other matters arising out of the carrying on of a business.

2 Advocacy in any proceedings except--

(1) proceedings in--

(a) the House of Lords in its judicial capacity,

(b) the Judicial Committee of the Privy Council in the exercise of its jurisdiction under the [1998 c. 38.] Government of Wales Act 1998, the [1998 c. 46.] Scotland Act 1998 or the [1998 c. 47.] Northern Ireland Act 1998,

(d) the High Court,

(e) any county court,

(f) the Employment Appeal Tribunal, or

(g) any Mental Health Review Tribunal,

(2) proceedings in the Crown Court--

(a) for the variation or discharge of an order under section 5 of the [1997 c. 40.] Protection from Harassment Act 1997,

(b) which relate to an order under section 4 or 10 of the [1998 c. 37.] Crime and Disorder Act 1998, or

(3) proceedings in a magistrates' court--

(a) under section 43 or 47 of the [1948 c. 29.] National Assistance Act 1948, section 22 of the [1950 c. 37.] Maintenance Orders Act 1950, section 4 of the [1958 c. 39.] Maintenance Orders Act 1958 or section 106 of the [1992 c. 5.] Social Security Administration Act 1992,

(b) under Part I of the [1972 c. 18.] Maintenance Orders (Reciprocal Enforcement) Act 1972 relating to a maintenance order made by a court of a country outside the United Kingdom,

(c) in relation to an application for leave of the court to remove a child from a person's custody under section 27 or 28 of the [1976 c. 36.] Adoption Act 1976 or in which the making of an order under Part II or section 29 or 55 of that Act is opposed by any party to the proceedings,

(d) for or in relation to an order under Part I of the [1978 c. 22.] Domestic Proceedings and Magistrates' Courts Act 1978,

(e) under the [1989 c. 41.] Children Act 1989,

(f) under section 30 of the [1990 c. 37.] Human Fertilisation and Embryology Act 1990,

(g) under section 20 or 27 of the [1991 c. 48.] Child Support Act 1991,

(h) under Part IV of the [1996 c. 27.] Family Law Act 1996,

(i) for the variation or discharge of an order under section 5 of the Protection from Harassment Act 1997, or

(j) under section 1, 2, 8 or 11 of the Crime and Disorder Act 1998, and

9 (4) proceedings before any person to whom a case is referred (in whole or in part) in any proceedings within paragraphs (1) to (3).

Section 14.

SCHEDULE 3 Criminal Defence Service: right to representation

Individuals to whom right may be granted

1 (1) A right to representation for the purposes of any kind of criminal proceedings before a court may be granted to an individual such as is mentioned in relation to that kind of proceedings in section 12(2).

(2) A right to representation for the purposes of criminal proceedings may also be granted to an individual to enable him to resist an appeal to the Crown Court otherwise than in an official capacity.

(3) In this Schedule "court" includes any body before which criminal proceedings take place.

Grant of right by court

2 (1) A court before which any criminal proceedings take place, or are to take place, has power to grant a right to representation in respect of those proceedings except in such circumstances as may be prescribed.

(2) Where a right to representation is granted for the purposes of criminal proceedings it includes the right to representation for the purposes of any related bail proceedings and any preliminary or incidental proceedings; and regulations may make provision specifying whether any proceedings are or are not to be regarded as preliminary or incidental.

(3) A court also has power to grant a right to representation for the purposes of criminal proceedings before another court in such circumstances as may be prescribed.

(4) The form of the application for a grant of a right to representation under this paragraph, and the form of the grant of such a right, shall be such as may be prescribed.

(5) A right to representation in respect of proceedings may be withdrawn by any court before which the proceedings take place; and a court must consider whether to withdraw a right to representation in such circumstances as may be prescribed.

(6) The powers of a magistrates' court for any area under this paragraph may be exercised by a single justice of the peace for the area.

(7) Any rules under section 144 of the [1980 c. 43.] Magistrates' Courts Act 1980 which provide for the functions of a single justice under sub-paragraph (6) to be exercised by a justices' clerk may make different provision for different areas.

Grant of right by commission

3 (1) Regulations may provide that the Commission shall have power to grant rights to representation in respect of any one or more of the descriptions of proceedings prescribed under section 12(2)(g), and to withdraw any rights to representation granted by it.

(2) The form of any application for a grant of a right to representation under this paragraph, and the form of the grant of such a right, shall be such as may be prescribed.

(3) Regulations under sub-paragraph (1) may make such transitional provisions as the Lord Chancellor may consider appropriate.

Appeals

4 Except where regulations otherwise provide, an appeal shall lie to such court or other person or body as may be prescribed against a decision to refuse to grant a right to representation or to withdraw a right to representation.

Criteria for grant of right

5 (1) Any question as to whether a right to representation should be granted shall be determined according to the interests of justice.

(2) In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account--

(a) whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation,

(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,

(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and

(e) whether it is in the interests of another person that the individual be represented.

(3) The Lord Chancellor may by order amend sub-paragraph (2) by adding new factors or varying any factor.

(4) A right to representation shall always be granted in such circumstances as may be prescribed.

Section 24.

SCHEDULE 4

Amendments consequential on Part I

The Public Records Act 1958 (c. 51)

1 In the First Schedule to the Public Records Act 1958 (definition of public records), in Part I of the Table at the end of paragraph 3, in the second column, after "Legal Aid Board." insert--

"Legal Services Commission."

The Parliamentary Commissioner Act 1967 (c. 13)

2 In Schedule 2 to the Parliamentary Commissioner Act 1967 (which lists the bodies subject to the jurisdiction of the Parliamentary Commissioner), insert (at the appropriate place in alphabetical order)--

"Legal Services Commission."

The Criminal Appeal Act 1968 (c. 19)

3 In section 50 of the Criminal Appeal Act 1968 (meaning of "sentence"), at the end insert--

" (3) An order under section 17 of the Access to Justice Act 1999 is not a sentence for the purposes of this Act. "

The Children and Young Persons Act 1969 (c. 54)

4 The Children and Young Persons Act 1969 has effect subject to the following amendments.

5 In section 12AA(9) (restrictions on power to require young offender who is not legally represented to live in local authority accommodation)--

(a) for paragraph (a) substitute--

" (a) he was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service for the purposes of those proceedings but the right was withdrawn because of his conduct; or " , and

(b) in paragraph (b), for "legal aid" substitute "such representation".

6 In section 23 (remands and committals to local authority accommodation), in subsection (5A) (restrictions on imposing a security requirement on person who is not legally represented)--

(a) for paragraph (a) substitute--

" (a) he was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service but the right was withdrawn because of his conduct; or " , and

(b) in paragraph (b), for "legal aid" substitute "such representation".

7 In that section as it has effect pursuant to section 98 of the Crime and Disorder Act 1998 (alternative provision for 15 and 16 year old boys), in subsection (4A) (restrictions on remand of boy who is not legally represented)--

(a) for paragraph (a) substitute--

" (a) he was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service but the right was withdrawn because of his conduct; or " , and

(b) in paragraph (b), for "legal aid" substitute "such representation".

The Attachment of Earnings Act 1971 (c. 32)

8 In section 1(3)(c) of the Attachment of Earnings Act 1971 (magistrates' court may make order to secure payment of any sum required to be paid by legal aid contribution order), for "legal aid contribution order" substitute "order under section 17(2) of the Access to Justice Act 1999".

The Powers of Criminal Courts Act 1973 (c. 62)

9 In section 21(1) of the Powers of Criminal Courts Act 1973 (restrictions on imposing sentence on person who is not legally represented)--

(a) for paragraph (a) substitute--

" (a) he was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service but the right was withdrawn because of his conduct; or " , and

(b) in paragraph (b), for "legal aid" substitute "such representation".

The Solicitors Act 1974 (c. 47)

10 (1) Section 47 of the Solicitors Act 1974 (jurisdiction of Solicitors Disciplinary Tribunal) is amended as follows.

(2) In subsection (2)(d) (exclusion of solicitor from legal aid work), for "legal aid work" substitute "providing representation funded by the Legal Services Commission as part of the Criminal Defence Service".

(3) In subsection (2A) (exclusion of solicitor from providing legal aid work because of conduct in connection with services under the Legal Aid Act 1988)--

(a) for "legal aid work" substitute "providing representation", and

(b) in paragraph (a), for "under the Legal Aid Act 1988" substitute "funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service".

(4) In subsection (2B) (exclusion of member of solicitor's firm from legal aid work), for "legal aid work" substitute "providing representation funded by the Legal Services Commission as part of the Criminal Defence Service".

(5) In subsection (2D) (person excluded from legal aid work may apply for termination of exclusion), for "legal aid work" substitute "providing representation funded by the Legal Services Commission as part of the Criminal Defence Service".

The House of Commons Disqualification Act 1975 (c. 24)

11 In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), insert (at the appropriate place in alphabetical order)--

"The Legal Services Commission."

The Northern Ireland Assembly Disqualification Act 1975 (c. 25)

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