Legal Aid Act 1988

Part I — Preliminary

Purpose of this Act

1

Interpretation

2

Part II — Legal Aid Board and Legal Aid

The Legal Aid Board

3

Powers of the Board

4

Duties of the Board

5

Board to have separate legal aid fund

6

Accounts and audit

7

Part III — Advice and Assistance

Scope of this Part

8

Availability of, and payment for, advice and assistance

9

Financial limit on prospective cost of advice or assistance

10

Payment for advice or assistance otherwise than through legally assisted person’s contribution

11

Limit on costs against person receiving assistance by way of representation

12

Costs of successful unassisted parties

13

Part IV — Civil Legal Aid

Scope of this Part

14

Availability of, and payment for, representation under this Part

15

Reimbursement of Board by contributions and out of costs or property recovered

16

Limit on costs against assisted party

17

Costs of successful unassisted parties

18

Part V — Criminal Legal Aid

Scope of this Part

19

Competent authorities to grant representation under this Part

20

Availability of representation under this Part

21

Criteria for grant of representation for trial proceedings

22

Reimbursement of public funds by contributions

23

Contribution orders: supplementary

24

Payment of costs of representation under this Part

25

Payment for advice or assistance where representation under this Part is subsequently granted

26

Part VI — Legal Aid in Special Cases

Care proceedings

Representation in care proceedings: scope and competent authorities

27

Care proceedings: availability

28

Contempt proceedings

Representation in contempt proceedings

29

Supplementary

Supplementary

30

Part VII — General and Supplementary

Act not generally to affect position of legal representatives or other parties

31

Selection and assignment of legal representatives

32

Legal aid complaints against barristers and their exclusion from legal aid work

33

The following sections shall be substituted for sections 41 and 42 of the Administration of Justice Act 1985—

(41) (1) The disciplinary provisions applicable to barristers shall apply to legal aid complaints relating to the conduct of barristers as they apply to other complaints about their conduct. (2) Subject to any exclusion or restriction made by those provisions, any disciplinary tribunal which hears a legal aid complaint relating to the conduct of a barrister may, if it thinks fit and whether or not it makes any other order, order that any fees— (a) otherwise payable in connection with his services under or in accordance with the Legal Aid Act 1988, or (b) otherwise chargeable in connection with his services in respect of advice or assistance made available under Part III of that Act, shall be reduced or cancelled. (3) Accordingly, in so far as any of sections 9, 11, 15(6) and (7) and 25(2) of the Legal Aid Act 1988 (which relate to remuneration for legal aid work) has effect in relation to any fees reduced or cancelled by an order under subsection (2) above, it shall so have effect subject to the provisions of that order. (4) An appeal shall lie in the case of an order under subsection (2) above in the same manner as an appeal would lie in the case of any other order of such a tribunal. (5) The reference in subsection (2) above to a disciplinary tribunal is a reference to a tribunal acting under the disciplinary provisions applicable to barristers and it includes a reference to a member exercising any functions of the tribunal delegated to him. (42) (1) Subject to any exclusion or restriction made by the disciplinary provisions applicable to barristers, where a disciplinary tribunal hears a charge of professional misconduct or breach of professional standards against a barrister, it may order that he shall be excluded from legal aid work, either temporarily or for a specified period, if it determines that there is good reason for the exclusion arising out of— (a) his conduct in connection with any such services as are mentioned in section 40(1), or (b) his professional conduct generally. (2) Subsection (4) of section 41 shall apply to an order under subsection (1) as it applies to an order under subsection (2) of that section. (3) The disciplinary provisions applicable to barristers shall include provision enabling a barrister who has been excluded from legal aid work under this section to apply for an order terminating his exclusion from such work. (4) In this section— (a) the reference to a disciplinary tribunal shall be construed in accordance with section 41(5); and (b) references to a person being excluded from legal aid work are references to his being excluded from those who may be selected or assigned under section 32 of the Legal Aid Act 1988.

Regulations

34

Advisory Committee

35

Orders and regulations: general

36

Laying of Board’s annual reports before Parliament

37

Restriction of disclosure of information

38

Proceedings for misrepresentation etc

39

Adaptation of rights of indemnity in cases of advice, assistance or representation in civil proceedings

40

Application to Crown

41

Finance

42

Definitions

43

Part VIII — Miscellaneous

Scottish provisions

Scottish provisions

44

The Legal Aid (Scotland) Act 1986 shall have effect subject to the amendments specified in Schedule 4 to this Act.

Supplementary

Amendments, repeals and transitional provisions

45

Amendments of Legal Aid Act 1974 pending repeal

46

Short title, commencement and extent

47

• (1) This Act may be cited as the Legal Aid Act 1988.

• (2) Subject to subsections (3) and (4) below, this Act shall come into force on such day as the Lord Chancellor appoints by order and different days may be appointed for different provisions.

• (3) Section 44 and Schedule 4 shall come into force on such day as the Secretary of State appoints by order and different days may be appointed for different provisions.

• (4) Sections 35 (together with the repeal of section 21 of the Legal Aid Act 1974) and 46 shall come into force on the date on which this Act is passed.

• (5) An order under subsection (2) or (3) above may contain such transitional and saving provisions as appear to the Lord Chancellor or, as the case may be, the Secretary of State necessary or expedient.

• (6) This Act, with the exception of sections 12(3) and 17(3), section 44 and Schedule 4 and the amendments or repeals of the enactments referred to in section 45(3), extends to England and Wales only and section 44 and Schedule 4 extend to Scotland only.

SCHEDULE 1

Incorporation and Status

1

The Board shall be a body corporate.

2

The Board shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property shall not be regarded as property of, or held on behalf of, the Crown.

Tenure of Members

3

Subject to paragraphs 4 and 5 any member of the Board shall hold and vacate office in accordance with the terms of his appointment, but a person shall not be appointed a member of the Board for a period of more than 5 years.

4

• (1) The chairman or a member may resign office by giving notice in writing to the Lord Chancellor, and if the chairman ceases to be a member he shall cease to be the chairman.

• (2) A person who ceases to be the chairman or a member shall be eligible for reappointment.

5

The Lord Chancellor may terminate the appointment of a member of the Board 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 Board member by reason of physical or mental illness;

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

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

Members’ interests

6

• (1) Before appointing a person to be a member of the Board, 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 Board.

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

• (3) Any person whom the Lord Chancellor proposes to appoint as, and who has consented to be, a member of the Board, and any member of the Board, 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 Board who is in any way directly or indirectly interested in a contract made or proposed to be made by the Board shall disclose the nature of his interest at a meeting of the Board; and the disclosure shall be recorded in the minutes of the Board, and the member shall not take any part in any deliberation or decision of the Board with respect to that contract.

• (2) For the purposes of sub-paragraph (1) above, a general notice given at a meeting of the Board by a member of the Board to the effect that he is a member of a specified company or firm and is to be regarded as interested in any contract which may, after the date of the notice, be made with the company or firm shall be regarded as a sufficient disclosure of his interest in relation to any contract so made.

• (3) A member of the Board need not attend in person at a meeting of the Board 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 Board 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, with the approval of the Treasury, determine.

• (2) Where a person ceases to be a member of the Board 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, with the consent of the Treasury, direct the Board to make that person a payment of such amount as the Lord Chancellor may, with the consent of the Treasury, determine.

Staff

9

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

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

• (3) The Board may only appoint a person to be its chief executive or the holder of any other employment of a specified description after consultation with, and subject to the approval of, the Lord Chancellor.

• (4) The reference in sub-paragraph (3) above to employment of a specified description is a reference to any employment for the time being specified by the Lord Chancellor in a direction given for the purposes of that sub-paragraph.

• (5) An appointment under this paragraph may be made on such terms and conditions as the Board, with the approval of the Lord Chancellor and consent of the Treasury, may determine.

10

• (1) The Board shall make, in respect of such of its employees as, with the approval of the Lord Chancellor and the consent of the Treasury, 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) above may include the establishment and administration, by the Board or otherwise, of one or more pension schemes.

• (3) If an employee of the Board—

• (a) becomes a member of the Board; and

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

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

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

Proceedings

11

• (1) Subject to anything in regulations, the Board may regulate its own proceedings.

• (2) The Board may make such arrangements as it considers appropriate for the discharge of its functions, including the delegation of specified functions and shall make such arrangements for the delegation of functions to committees and persons as may be prescribed.

• (3) Subject to anything in regulations, committees may be appointed and may be dissolved by the Board, and may include, or consist entirely of, persons who are not members of the Board.

• (4) A committee shall act in accordance with such directions as the Board may from time to time give, and the Board may provide for anything done by a committee to have effect as if it had been done by the Board.

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

Instruments

12

• (1) The fixing of the seal of the Board shall be authenticated by the chairman or another member of the Board and by some other person authorised either generally or specially by the Board to act for that purpose.

• (2) A document purporting to be duly executed under the seal of the Board, or to be signed on the Board’s behalf, shall be received in evidence and, unless the contrary is proved, be deemed to be so executed or signed.

Allowances

13

The Board may pay to the members of any committee such fees and allowances as the Lord Chancellor may, with the consent of the Treasury, determine.

SCHEDULE 2

Part I — Description of Proceedings

1

Proceedings in, or before any person to whom a case is referred in whole or in part by, any of the following courts, namely—

• (a) the House of Lords in the exercise of its jurisdiction in relation to appeals from courts in England and Wales;

• (b) the Court of Appeal;

• (c) the High Court;

• (d) any county court.

2

The following proceedings in a magistrates’ court, namely—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) proceedings under section 43 of the National Assistance Act 1948, section 22 of the Maintenance Orders Act 1950, section 4 of the Maintenance Orders Act 1958, or section 18 of the Supplementary Benefits Act 1976;

• (c) proceedings 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 Adoption Act 1976 or proceedings in which the making of an order under Part II or section 29 or 55 of the Adoption Act 1976 is opposed by any party to the proceedings;

• (d) proceedings under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 relating to a maintenance order made by a court of a country outside the United Kingdom;

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) proceedings for or in relation to an order under Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978.

• (g) proceedings under the Children Act 1989.

• (h) appeals under section 20, where they are to be made to a magistrates’ court , and proceedings under section 27 of the Child Support Act 1991 .

• (i) proceedings under section 30 of the Human Fertilisation and Embryology Act 1990 .

3

Proceedings in the Employment Appeal Tribunal.

4

Proceedings in the Lands Tribunal.

5

Proceedings before a Commons Commissioner appointed under section 17(1) of the Commons Registration Act 1965.

6

Proceedings in the Restrictive Practices Court under Part III of the Fair Trading Act 1973, and any proceedings in that court in consequence of an order made, or undertaking given to the court, under that Part of that Act.

Part II — Excepted proceedings

1

Proceedings wholly or partly in respect of defamation, but so that the making of a counterclaim for defamation in proceedings for which representation may be granted shall not of itself affect any right of the defendant to the counterclaim to representation for the purposes of the proceedings and so that representation may be granted to enable him to defend the counterclaim.

2

Relator actions.

3

Proceedings for the recovery of a penalty where the proceedings may be taken by any person and the whole or part of the penalty is payable to the person taking the proceedings.

4

Election petitions under the Representation of the People Act 1983.

5

In a county court, proceedings for or consequent on the issue of a judgment summons and, in the case of a defendant, proceedings where the only question to be brought before the court is as to the time and mode of payment by him of a debt (including liquidated damages) and costs.

6

Proceedings incidental to any proceedings excepted by this Part of this Schedule.

SCHEDULE 3

Part I — Orders made by a court

Collecting court

1

In this Part “collecting court”, in relation to a contribution order, means a magistrates’ court specified in the order; and the court so specified shall be—

• (a) in a case where the court making the order is itself a magistrates’ court, that court;