Providers of services etc
Section 27: Choice of provider of services etc
194.Section 27 makes provision about an individual’s choice of provider of criminal and civil legal aid.
195.Subsections (1) and (2) provide that the Lord Chancellor’s duty under section 1(1) does not include a duty to secure that legal aid is provided by the means selected by the individual. For example, in certain cases, the Lord Chancellor may arrange for some services to be provided only by telephone or by other electronic means.
196.Subsection (3) provides that the Lord Chancellor’s duty under section 1(1) does not include a duty to secure that legal aid is provided by a person selected by an individual, except as provided in subsections (4) to (10). For example, in civil cases, as at present, the intention is that an individual must select a person with whom the Lord Chancellor has entered into a contract or other arrangement (for example, provision of services by telephone or by other electronic means) for the provision of those services.
197.In relation to representation for criminal proceedings, subsection (4) and (5) provide that an individual may select a legal representative of their own choice and that choice will be respected, subject to regulations made under subsection (6). Those regulations may limit choice in the ways referred to in subsection (6). For example, the regulations may limit the choice to a specified group of providers or may limit the number of legal representatives who can act for any individual at any one time. They may also restrict the right of the individual to appoint a new legal representative in place of one previously chosen.
198.Similar powers exist in section 15 of the Access to Justice Act 1999 in relation to a right to representation. Under that section provision has been made, for example, limiting an individual’s choice to providers who hold a contract with the LSC to provide legal services and about the circumstances in which an individual may be represented by Queen’s Counsel or by more than one junior advocate, and limitations have been placed on an individual’s right to transfer a representation order to a new provider.
199.Section 26 does not prevent regulations restricting an individual’s choice to a person employed by the Lord Chancellor (unlike section 15(4) of the Access to Justice Act 1999).
Section 28: Position of providers of services
200.Section 28 makes provision similar to the provisions currently set out at section 22(1), (2) and (3) of the Access to Justice Act 1999.
201.Subsection (1) provides that, unless regulations state otherwise, the provision of legal aid to an individual does not affect the relationship between the individual and the provider of the services, including any lawyer-client privilege.
202.Subsection (2) provides that providers of legal aid may not seek remuneration (or a “top up” payment) from their clients in addition to that provided under the legal aid scheme, unless the Lord Chancellor authorises them to do so.
203.Subsection (3) provides that regulations may allow for a provider to be entitled to be paid for work done up to the time when a determination that a person qualifies for legal aid is withdrawn.
Section 29: Code of conduct
204.Section 29 makes provision about a code of conduct to be observed by certain types of persons when providing legal aid.
205.Subsection (1) provides that the Lord Chancellor must publish a code of conduct to be followed by civil servants and by employees of any body set up by the Lord Chancellor to provide legal aid, such as a body like the Public Defender Service that has been established by the LSC.
206.Subsection (2) provides that the code is to include the same range of duties currently listed at section 16(2) of the Access to Justice Act 1999, namely duties to avoid discrimination, duties to protect the interests of the individuals for whom services are provided, duties to the courts and tribunals, duties to avoid conflicts of interest, duties of confidentiality and duties to act in accordance with professional rules.
207.Subsection (4) provides that the persons to whom the code applies are not subject to the direction of the Lord Chancellor when they provide services. This is to ensure their independence in providing such services.
Section 30: Position of other parties, courts and tribunals
208.Section 30 makes provision similar to section 22(4), (5) and (6) of the Access to Justice Act 1999.
209.Subsection (1) provides that unless regulations provide otherwise, the fact that legal aid is provided to an individual does not affect the rights of any third party or the principles governing the exercise of a court’s or tribunal’s discretion.
210.Subsections (2) and (3) enable regulations to make provision about court or tribunal procedures in cases involving legal aid services.