LEGAL AID, SENTENCING AND PUNISHMENT
OF OFFENDERS BILL
Further Delegated Powers Memorandum
prepared by the Ministry of Justice
for the
House of Lords Delegated Powers
and Regulatory Reform Committee
5 March 2012
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Introduction
This Memorandum describes the purpose and content of a series of technical amendments
to the Legal Aid, Sentencing and Punishment of Offenders Bill which confer powers to
make delegated legislation, and it explains in each case why the power has been taken
and the nature of, and reason for, the procedure selected.
The Committee has previously received a full Memorandum in relation to the delegated
powers under the Bill. For the avoidance of doubt, this Memorandum concerns only those
new powers being sought in relation to specific technical amendments detailed below, and
is limited to Part 1 of the Bill (legal aid).
PART 1
LEGAL AID
Provision of legal aid
Schedule 1: Powers under Schedule 1
Power conferred on:
The Lord Chancellor
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary procedure:
Negative Resolution
1. Under paragraph 17 of Part 1, civil legal services provided in relation to judicial
review are in scope, except for certain immigration cases which are excluded in
sub-paragraphs (5) and (6) of paragraph 17. We are tabling an amendment to
provide an exception to these exclusions, to bring into scope legal aid for judicial
review of removal directions where prescribed conditions are met relating to (either
or both of) the period between the individual being given notice of the removal
direction and the proposed time for their removal, and the reason for proposing that
period. This will enable regulations to be made, for example, to allow for legal aid
for judicial review of removal directions where the person being removed has been
given less than the standard notice period of removal because of risk of self harm or
suicide. The purpose of this power is to provide an exception to matters otherwise
out of scope (similar to that in paragraph 26(3) of Part 1).
2. Paragraph 40 of Part 1 of Schedule 1 enables the Lord Chancellor to make
regulations about the provision of legal aid where a case raises a number of
different matters, not all of which will be in scope. We have tabled an amendment to
sub-paragraphs (2)(a) and (b) of paragraph 40 to enable regulations to provide
which of the exclusions in Part 2 and 3 are to apply to the prescribed services, and
to prescribe additional exclusions.
3. Paragraph 15 of Part 2 of Schedule 1 excludes from scope civil legal services
provided in relation to a benefit, allowance, payment, credit or pension under certain
social security legislation. We have tabled an amendment to change the reference
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in paragraph 15(g) from “any other enactment relating to social security” to “any
prescribed enactment relating to social security”. This provision, if amended, would
enable other social security legislation to be prescribed for the purposes of
paragraph 15 of Part 2 of the Schedule. We consider that this will provide greater
certainty.
4. These powers, like the other powers under Schedule 1, are subject to the negative
resolution procedure. It is considered that this is the appropriate procedure because
they are detailed powers concerned with, among other things, ensuring clarity in the
Schedule.
Clause 38: Consequential amendments
Power conferred on:
The Lord Chancellor
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary procedure:
Affirmative Resolution where regulations under clause 38 amend
or repeal a provision of an Act. Negative Resolution where
regulations under clause 38 revoke such regulations or insert or
repeal a provision previously repealed or inserted by such
regulations. Negative Resolution where regulations under clause
38 do not amend or repeal a provision of an Act.
5. Clause 38(2), if amended as intended, will allow the Lord Chancellor, where he
considers it appropriate as part of the arrangements for effecting the transition from
the operation of Part 1 of the Access to Justice Act 1999 to the operation of Part 1
of the Bill, to make regulations requiring or enabling some or all of the services that
may be funded under Part 1 of the Access to Justice Act to be made available to
individuals or other persons under Part 1 of the Bill for a period specified or
described in the regulations.
6. Clause 38(4), if amended as intended, will provide that, where the Lord Chancellor
considers it appropriate for the Legal Services Commission (LSC) to cease to exist
before Part 1 of the Bill is brought fully into force, the Lord Chancellor may by
regulations make provision requiring or enabling the Lord Chancellor and the
Director, or persons authorised by the Lord Chancellor or the Director, to carry out
LSC functions for a period specified or described in regulations. These provisions
ensure that, if necessary, the Lord Chancellor and the Director of legal aid
casework can operate the existing legal aid system under the Access to Justice Act
in lieu of the scope provisions of the Bill under Schedule 1 coming into force.
7. Clause 38(7), as amended, would provide that regulations made under clause 38
may amend, repeal, revoke or otherwise modify Part 1 of the Access to Justice Act,
the Bill once enacted, any other Act and instrument made under an Act. These
powers would be used to ensure that the main purpose of making the regulations
could be achieved.
8. The intention is for Part 1 of the Bill to be commenced at one time and the Bill is
currently structured on this basis. The delegated powers provided for in these
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amendments are intended to provide the flexibility to enable the Government to
respond, if necessary, to matters (such as protracted litigation over the new
contracts with providers that will underpin the civil scope provisions provided for in
Part 1 of the Bill) that may delay the full implementation of Part 1 of the Bill.
Regulations under clause 38(2) or under clause 38(4) would allow for the abolition
of the LSC in advance of all or some of the provisions of Part 1 of the Bill being
brought into force.
9. Although it remains the objective to commence all of Part 1 at one time, the
Government considers it appropriate to take powers to make such provision by way
of secondary legislation given the need for flexibility. The alternative would be to
set out detailed provision on the face of the Bill even though it is not yet certain
whether such provision would be needed and the need for such provision is likely to
be determined by as yet unknown events that may occur in the future.
10. In addition, provision made in regulations under clause 38(2) and (4) will only have
effect for a period specified or described in the regulations. This emphasises the
temporary nature of any such provision.
11. In respect of the appropriate Parliamentary procedure, we have also tabled an
amendment to Clause 40 to provide that any regulations made under Clause 38
that amend or repeal a provision of an Act are subject to the affirmative procedure.
The Government considers this to be the appropriate procedure given that a
provision of primary legislation would be being amended or repealed.
However, regulations made under clause 38 that revoke regulations previously
made under clause 38 (or which insert or repeal provision previously repealed or
inserted by such regulations) would be subject to the negative procedure.
Although a provision of primary legislation would be being amended, the
Government considers that in this particular case the negative procedure is justified
as the effect of revoking such regulations would be to move towards full
implementation of Part 1 of the Bill, which would have been approved by
Parliament.
Schedule 4: Transfer of employees and property etc of Legal Services Commission
Power conferred on:
The Lord Chancellor
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary procedure:
Negative Resolution
12. Related to the above provisions, The Government has tabled an amendment to
paragraph 12 of schedule 4 to modify the definition of “transfer day” so that it takes
effect when the LSC is abolished by the commencement of clause 37 (abolition of
Legal Services Commission). Schedule 4 provides for the transfer of employees,
rights and liabilities etc of the Legal Services Commission.
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13. We have also tabled an amendment that provides that the Lord Chancellor may by
regulations amend or otherwise modify the definition of “the transfer day” in
paragraph 12 of Schedule 4. . The purpose of the regulation-making power is to
provide for flexibility to change the transfer day if it proved necessary to make the
transfer date dependent on commencement of another provision of Part 1 of the
Bill. We think that the use of this power is probably unlikely, but given the
uncertainty as to future events, we think it wise to allow for this flexibility.
14. The negative procedure is justified as Parliament will have given approval for the
transfers provided for under Schedule 4, and for operational simplicity, flexibility and
convenience, it may be necessary to vary the transfer day to address issues that
may arise in the commencement of other provisions.
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