Access to Justice (Northern Ireland) Order 2003

SCHEDULES

Article 3(4)

SCHEDULE 1 N.I. NORTHERN IRELAND LEGAL SERVICES COMMISSION

Incorporation and status N.I.

1.—(1) The Commission shall be a body corporate. N.I.

(2) Subject to the provisions of this Order, section 19 of the Interpretation Act (Northern Ireland) 1954 shall apply to the Commission.

2.  The Commission shall not be regarded— N.I.

(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 N.I.

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. N.I.

(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 may resign office by giving notice in writing to the Lord Chancellor. N.I.

(2) A person who ceases to be a member of the Commission shall be eligible for re-appointment.

5.  The Lord Chancellor may terminate the appointment of a member of the Commission if satisfied that— N.I.

(a) he has become bankrupt or made a composition or 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 convicted of a criminal offence,

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

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

6.—(1) Subject to sub-paragraphs (2) to (5), the member appointed to chair the Commission shall hold and vacate office as such in accordance with the terms of his appointment. N.I.

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

(3) A member appointed to chair the Commission may at any time resign from office as such by giving notice in writing to the Lord Chancellor.

(4) A member so appointed shall be eligible for re-appointment on ceasing to hold office as such (if still a member of the Commission).

(5) When a member is appointed to chair the Commission or ceases to hold office as such, the Lord Chancellor may vary the terms of the member's appointment as a member of the Commission so as to alter the date of cessation of membership.

Members' interests N.I.

7.—(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. N.I.

(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.

8.—(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— N.I.

(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 N.I.

9.—(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 N.I.

10.—(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.

11.—(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. N.I.

(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 9.

(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. N.I.

12.—(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 civil legal services 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 N.I.

13.—(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) Where a committee is to consider 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, any member of the committee who is in any way directly or indirectly interested in the contract or the grant, loan or other payment shall disclose the nature of his interest at a meeting of the committee; and—

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

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

(6) For the purposes of sub-paragraph (5), a general notice given at a meeting of a committee by a member of the committee 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.

(7) A member of a committee need not attend in person at a meeting of the committee 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.

(8) 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 N.I.

14.—(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. N.I.

(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 N.I.

15.—(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 civil legal services, and

(b) funded criminal defence services, and

(c) exercised its other functions.

(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 16 and 17 “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 N.I.

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

(a) to fund civil legal services,

(b) to fund criminal defence services, and

(c) to exercise its other functions,

and the plan shall include a summary of what the Commission has ascertained in the exercise of its functions under Article 6(1).

(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 N.I.

17.—(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) send a copy of his report to the Commission.

(5) The Commission shall lay before each House of Parliament—

(a) a copy of each statement of accounts prepared under sub-paragraph (1), and

(b) a copy of each report received from the Comptroller and Auditor General under sub-paragraph (4)(b).

Instruments N.I.

18.—(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. N.I.

(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.

Article 12(5)

SCHEDULE 2 N.I. CIVIL LEGAL SERVICES: EXCLUDED SERVICES

1.  The Commission may not fund services consisting of the provision of advice (beyond the provision of general information about the law and the legal system and the availability of legal services) or assistance in relation to— N.I.

(a) conveyancing,

(b) boundary disputes,

(c) the making of wills,

(d) matters of trust law,

(e) defamation or malicious falsehood,

(f) matters of company or partnership law, or

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

2.  The Commission may not fund services consisting of representation in any proceedings, except, subject to paragraph 4, such proceedings as are specified in sub-paragraphs (a) to (j)— N.I.

(a) proceedings in—

(i) the[F1 Supreme Court] in the exercise of its jurisdiction in relation to any appeal from Northern Ireland,

(ii) F2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) the Court of Appeal,

(iv) the High Court, or

(v) any county court,

(b) proceedings before any person to whom a case is referred (in whole or in part) in any proceedings within sub-paragraph (a),

(c) proceedings in the Crown Court under the Proceeds of Crime Act 2002F3 to the extent specified in paragraph 3,

(d) proceedings in a court of summary jurisdiction—

(i) for or relating to an order under the Summary Jurisdiction (Separation and Maintenance) Act (Northern Ireland) 1945F4 or the Domestic Proceedings (Northern Ireland) Order 1980F5 or the Family Homes and Domestic Violence (Northern Ireland) Order 1998F6 [F7 or Schedule 16 to the Civil Partnership Act 2004],

(ii) under section 22 of the Maintenance Orders Act 1950F8 or section 13 of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966F9 ,

(iii) under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972F10 relating to a maintenance order made by a court of a country outside the United Kingdom,

(iv) such as are referred to in paragraph (i) and are brought by virtue of Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972,

(v) which are debt or ejectment proceedings within the meaning of Part VI of the Magistrates' Courts (Northern Ireland) Order 1981F11 , other than proceedings under Article 62(2) of that Order,

(vi) under section 97, 143 or 144(1) of the Children and Young Persons Act (Northern Ireland) 1968F12 or the Children (Northern Ireland) Order 1995F13 ,

(vii) under Article 101 of the Health and Personal Social Services (Northern Ireland) Order 1972F14 or section 101 of the Social Security Administration (Northern Ireland) Act 1992F15 ,

(viii) which are appeals under Article 22 of the Child Support (Northern Ireland) Order 1991F16 , so far as such appeals are to be made to a court of summary jurisdiction by virtue of Article 2 of the Child Support Appeals (Jurisdiction of Courts) Order (Northern Ireland) 1993F17 ,

(ix) under Article 28 of the Child Support (Northern Ireland) Order 1991,

Sub para. (x) rep. by 2003 c. 42

(xi) for an order or direction under paragraph 3, 5, 6, 9 or 10 of Schedule 1 to the Anti-Terrorism, Crime and Security Act 2001F18 ,F19 . . .

(xii) for an order or direction under section 295, 297, 298, 301 or 302 of the Proceeds of Crime Act 2002,[F20 or]

[F20 (xiii) under section 89, 90, 97, 100, 104, 108, 109, 114, 118, 123, 125 or 126 of the Sexual Offences Act 2003,]

(e) proceedings in any devolution issue (within the meaning of Schedule 10 to the Northern Ireland Act 1998, Schedule 8 to the Government of Wales Act 1998F21 or Schedule 6 to the Scotland Act 1998F22 ) before any court in Northern Ireland,

(f) proceedings brought by an individual before the Proscribed Organisations Appeal Commission,

(g) proceedings before the Mental Health Review Tribunal,

(h) proceedings in the Lands Tribunal for Northern Ireland,

[F23 (hh) proceedings under Article 3 or 4 of the Anti-social Behaviour (Northern Ireland) Order 2004;]

[F24 (i) proceedings before the Asylum and Immigration Tribunal or the Special Immigration Appeals Commission,]

(j) proceedings in the Enforcement of Judgments Office in connection with any proceedings mentioned in sub-paragraphs (a) to (i).

(k) F25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 Words in Sch. 2 para. 2(a)(i) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 84; S.I. 2009/1604, art. 2(a)(d)

F2 Sch. 2 para. 2(a)(ii) repealed (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 146, 148, Sch. 18 Pt. 5; S.I. 2009/1604, art. 2(f)

F3 2002 c. 29

F4 1945 c.14 (NI)

F5 1980 NI 5

F6 1998 NI 6

F7 2004 c. 33

F8 1950 c. 37

F9 1966 c. 35 (NI)

F10 1972 c. 18

F11 1981 NI 26

F12 1968 c. 34 (NI)

F13 1995 NI 2

F14 1972 NI 14

F15 1992 c. 8

F16 1991 NI 23

F17 SR 1993/104

F18 2001 c. 24

F19 2003 c. 42

F20 2003 c. 42

F21 1998 c. 38

F22 1998 c. 46

F23 Sch. 2 para. 2(hh) inserted (8.6.2008) by Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)), arts. 1(3)(a), 84(1)

F24 2004 c. 19

F25 Sch. 2 para. 2(k) repealed (8.6.2008) by Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)), arts. 1(3)(b), 102(2), Sch. 6 Pt. 2

3.—(1) These are the proceedings under the Proceeds of Crime Act 2002 referred to in paragraph 2(c)— N.I.

(a) proceedings which relate to a direction under section 202(3) F26 . . . as to the distribution of funds in the hands of a receiver;

(b) applications under section 210 relating to action taken or proposed to be taken by a receiver;

(c) applications under section 211 to vary or discharge an order under any of sections 196 [F27 to 199] for the appointment of or conferring powers on a receiver;

(d) applications under section 220 or 221 for the payment of compensation;

(e) applications under sections 351(3), 362(3), 369(3) or 375(2) to vary or discharge certain orders made under Part 8.

(2) But sub-paragraph (1) does not authorise the funding of the provision of services to a defendant (within the meaning of Part 4 of the Proceeds of Crime Act 2002) in relation to—

(a) proceedings mentioned in [F28 head (a)] of that sub-paragraph, or

(b) an application under section 221 of that Act for the payment of compensation if the confiscation order was varied under section 179.

F26 Words in Sch. 2 para. 3(1)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), ss. 74(2), 92, 94(1), Sch. 8 para. 163(2), Sch. 14; S.I. 2008/755, art. 2(1)(a)(c)(d) (subject to arts. 3-14)

F27 Words in Sch. 2 para. 3(1)(c) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), ss. 74(2), 94(1), Sch. 8 para. 163(3); S.I. 2008/755, art. 2(1)(a) (subject to arts. 3-14)

F28 Words in Sch. 2 para. 3(2)(a) substituted (8.6.2008) by Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)), arts. 1(3)(a), 85(1)

4.  Subject to paragraph 5, the following services may not be funded by the Commission as civil legal services, even where they fall within the descriptions specified in paragraphs 2(a) to (j)— N.I.

(a) representation in proceedings in respect of which representation may be granted as a criminal defence service;

(b) representation wholly or partly in respect of defamation;

(c) representation in relator actions;

(d) representation in relation to election petitions under the Representation of the People Act 1983F29 or the Electoral Law Act (Northern Ireland) 1962F30 ;

(e) representation in proceedings (other than proceedings referred to in paragraph 2(j)) for the recovery of a debt (including liquidated damages) which is admitted where the only question to be brought before the court is as to the time and mode of payment of that debt;

(f) representation in proceedings incidental to any proceedings mentioned in sub-paragraphs (a) to (e).

F29 1983 c. 29

F30 1962 c. 14 (NI)

5.  Notwithstanding paragraph 4, the making of a counterclaim for defamation in proceedings for which representation may be granted shall not of itself affect any right of a defendant to the counterclaim to representation in the proceedings and representation may be granted to enable him to defend such counterclaim. N.I.

Article 48(2)

SCHEDULE 3 N.I. TRANSITIONAL PROVISIONS AND SAVINGS

Interpretation N.I.

1.  In this Schedule— N.I.

• “the 1981 Order” means the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981F31 ;

• “the first appointed day” means the day appointed by the Lord Chancellor under Article 1(2) for the coming into operation of Article 3(1);

• “the Old Fund” has the meaning given by paragraph 3;

• “the second appointed day” means the day appointed by the Lord Chancellor under Article 1(2) for the coming into operation of Article 11(1).

F31 1981 NI 8

Rights, obligations and property N.I.

2.—(1) Subject to paragraphs 3 and 9, on the first appointed day all rights, obligations and property of the Law Society which are referable to its functions under the 1981 Order shall become rights, obligations and property of the Commission. N.I.

(2) Any payments which are required to be made into or out of the Old Fund in connection with legal aid or advice or assistance under the 1981 Order shall, on and after the first appointed day, be paid to or by the Commission.

(3) Anything which, immediately before the first appointed day, is in the process of being done by or in relation to the Law Society may, if it relates to anything transferred by sub-paragraph (1), be continued by or in relation to the Commission.

(4) Anything done (or having effect as if done) by or in relation to the Law Society before the first appointed day for the purpose of, or in connection with, anything transferred by sub-paragraph (1) shall, so far as is required for continuing its effect after that time, have effect as if done by or in relation to the Commission.

(5) Any reference in any document, including any statutory provision, constituting or relating to anything transferred by sub-paragraph (1)—

(a) to, or to the Council of, the Law Society, or

(b) to the Legal Aid Committee, certifying committee or any other committee or tribunal established by the Law Society under Part II of the 1981 Order, or

(c) to any member or office-holder of such a committee or tribunal,

shall, so far as is required for giving effect to that sub-paragraph, be construed as a reference to the Commission, or in relation to a function exercisable by any individual or committee under arrangements made by the Commission under Article 7(4) of this Order, as a reference to that individual or committee.

(6) The Lord Chancellor may by order make any consequential, incidental, supplementary or transitional provisions, and any savings, which appear to him to be appropriate in consequence of or otherwise in connection with the transfers effected by sub-paragraph (1).

(7) An order under sub-paragraph (6) may include provisions in the form of amendments or repeals of this Schedule or any other statutory provision.

The Legal Aid Fund N.I.

3.—(1) On the first appointed day the legal aid fund ( “the Old Fund”) maintained by the Law Society under Article 19 of the 1981 Order shall be wound up. N.I.

(2) If, as at the first appointed day, after taking account of all receipts and expenses of the Law Society attributable to its functions under the 1981 Order, there is in relation to the Old Fund any surplus or deficit—

(a) such surplus shall be paid by the Law Society to the Lord Chancellor; and

(b) such deficit shall be made up by payment to the Law Society by the Lord Chancellor of the amount of the deficit.

(3) The Law Society shall, as soon as possible after the first appointed day, prepare a report in accordance with Article 18(8) of the 1981 Order—

(a) in relation to the last financial year ending before the first appointed day (if it has not done so before then), and

(b) in relation to the period between the end of that financial year and the first appointed day (as if that period were a financial year).

(4) The Law Society shall, as soon as possible after the first appointed day, prepare a statement of accounts in accordance with Article 20 of the 1981 Order—

(a) in relation to the last financial year ending before the first appointed day (if it has not done so before then), and

(b) in relation to the period between the end of that financial year and the first appointed day (as if that period were a financial year).

(5) Paragraphs (2) to (5) of Article 20 of the 1981 Order shall, on and after the first appointed day, apply in relation to—

(a) the preparation of a statement under sub-paragraph (4)(a) or (b), and

(b) the auditing of accounts kept under that Article for the periods mentioned in sub-paragraphs (4)(a) and (b).

(6) Notwithstanding its repeal by this Order, Article 19(5) of the 1981 Order shall continue to have effect for the purposes of any determination as to the expenses or receipts of the Law Society.

(7) The Lord Chancellor shall meet the costs of remunerating auditors and any other costs incurred by the Law Society in connection with the exercise of any of its functions under this paragraph.

Part II of the 1981 Order N.I.

4.—(1) The provisions of this paragraph shall have effect if the first appointed day falls before the second appointed day.

(2) With effect from the first appointed day until the second appointed day it shall be the responsibility of the Commission—

(a) to establish and maintain a fund, which shall be deemed for all purposes of the 1981 Order to be the legal aid fund,

(b) subject to the provisions of Part II of the 1981 Order and this Schedule, to make arrangements with the approval of the Lord Chancellor and the concurrence of the Treasury for securing that legal aid, advice and assistance are available as required by Part II of the 1981 Order,

(c) to monitor the conduct of solicitors and barristers advising or assisting or acting for persons entitled to receive advice or assistance or legal aid under the 1981 Order and, where it considers it appropriate to do so—

(i) to make a complaint about the conduct of a person so advising or assisting or acting to the Law Society (in the case of a solicitor) or to the General Council of the Bar of Northern Ireland (in the case of a barrister), or

(ii) to refer any complaint which is made to the Commission about the conduct of a person so advising or assisting or acting to the Law Society (in the case of a solicitor) or to the General Council of the Bar of Northern Ireland (in the case of a barrister), and

(d) generally to administer Part II of the 1981 Order.

(3) In relation to any time from the first appointed day to the second appointed day, any reference in Part II of the 1981 Order or in any statutory provision made, or treated as made, under that Part—

(a) to, or to the Council of, the Law Society, or

(b) to the Legal Aid Committee, certifying committee or any other committee or tribunal established by the Law Society under that Part, or

(c) to any member or office-holder of such a committee or tribunal,

shall, so far as is required to enable the Commission to exercise its functions under sub-paragraph (2), and subject to sub-paragraph (4), be construed as a reference to the Commission, or in relation to a function exercisable by any individual or committee under arrangements made by the Commission under Article 7(4) of this Order, as a reference to that individual or committee.

(4) Sub-paragraph (3) shall not apply to Article 23 or 24 of the 1981 Order; but instead in Article 24—

(a) any reference to the Law Society shall, in relation to any time from the first appointed day to the second appointed day, be deemed to include a reference to the Commission; and

(b) paragraph (1) shall have effect as if there were inserted after sub-paragraph (c)—

“or

(d) for the purpose of facilitating the proper performance by the Law Society or the General Council of the Bar of Northern Ireland of their functions in relation to complaints made or referred to them by the Commission.”

(5) The Commission shall pay into the fund established under sub-paragraph (2)(a)—

(a) sums received from the Lord Chancellor under sub-paragraph (7),

(b) any receipts of the Commission attributable to Part II of the 1981 Order, and

(c) such other receipts of the Commission as the Lord Chancellor may, with the concurrence of the Treasury, determine.

(6) All expenses of the Commission attributable to Part II of the 1981 Order shall be paid out of the fund established under sub-paragraph (2)(a).

(7) The Lord Chancellor shall pay to the Commission out of money provided by Parliament such sums as are required (after allowing for sums received apart from this sub-paragraph) to meet the payments which, under sub-paragraph (6), are to be paid by the Commission out of the fund established under sub-paragraph (2)(a).

(8) The Lord Chancellor may, with the approval of the Treasury—

(a) determine the manner in which and times at which the sums referred to in sub-paragraph (7) shall be paid to the Commission; and

(b) impose conditions on the payment of the sums referred to in sub-paragraph (7).

(9) Estimates of the sums required as mentioned in sub-paragraph (7) shall from time to time be submitted to the Lord Chancellor by the Commission.

(10) An estimate shall be submitted under sub-paragraph (9)—

(a) at least once in the period beginning with the first appointed day and ending with the next 31st March, and

(b) at least once in each subsequent period of twelve months ending with 31st March,

at such time as the Lord Chancellor may, with the approval of the Treasury, direct.

(11) An estimate under sub-paragraph (9) shall be in such form and shall give such particulars as may be so directed.

(12) Any provision of Part II of the 1981 Order requiring anything to be paid into or out of the fund established under sub-paragraph (2)(a) is not to be taken as requiring the making of an actual payment, so as to prevent the obligation to make it being satisfied in whole or in part by an allowance on account or in any other way; and in that Part references to payments, to sums paid or payable or to receipts and similar references shall be construed accordingly.

(13) Where a fund is established under sub-paragraph (2)(a), that fund shall, with effect from the second appointed day, be treated as if it were established under Article 11(1).

Part III of the 1981 Order N.I.

5.—(1) The provisions of this paragraph shall have effect if the first appointed day falls before the day appointed by the Lord Chancellor under Article 1(2) for the coming into operation of Article 21.

(2) With effect from the first appointed day until the day appointed by the Lord Chancellor under Article 1(2) for the coming into operation of Article 21, in any case where a criminal aid certificate is granted under Part III of the 1981 Order in respect of any person, the expenses properly incurred in pursuance of the certificate, including the fees of a solicitor and, where counsel has been assigned, of counsel, shall be paid—

(a) by the Lord Chancellor, or

(b) by the Commission,

as the Lord Chancellor may direct.

(3) Sub-paragraph (2) is subject to any rules made under Article 36 of the 1981 Order and to any directions given under that Article.

(4) The Commission shall establish and maintain a fund from which it shall make any payments which, under sub-paragraph (2), are to be paid by the Commission.

(5) The Commission shall pay into the fund established under sub-paragraph (4)—

(a) sums received from the Lord Chancellor under sub-paragraph (6), and

(b) such other receipts of the Commission as the Lord Chancellor may, with the concurrence of the Treasury, determine.

(6) The Lord Chancellor shall pay to the Commission out of money provided by Parliament such sums as are required (after allowing for sums received apart from this sub-paragraph) to meet the payments which, under sub-paragraph (2), are to be paid by the Commission.

(7) The Lord Chancellor may, with the approval of the Treasury—

(a) determine the manner in which and times at which the sums referred to in sub-paragraph (6) are to be paid to the Commission; and

(b) impose conditions on the payment of the sums referred to in sub-paragraph (6).

(8) Estimates of the sums required as mentioned in sub-paragraph (6) shall from time to time be submitted to the Lord Chancellor by the Commission.

(9) An estimate shall be submitted under sub-paragraph (8)—

(a) at least once in the period beginning with the first appointed day and ending with the next 31st March, and

(b) at least once in each subsequent period of twelve months ending with 31st March,

at such time as the Lord Chancellor may, with the approval of the Treasury, direct.

(10) An estimate under sub-paragraph (8) shall be in such form and shall give such particulars as may be so directed.

(11) Where a fund is established under sub-paragraph (4), that fund shall, with effect from the day appointed by the Lord Chancellor under Article 1(2) for the coming into operation of Article 21, be treated as if it were established under Article 21(1).

Commission's annual plan and annual report N.I.

6.—(1) Where the Commission exercises any functions by virtue of paragraph 4(2) or 5(2) during any financial year, it shall deal with how it has exercised those functions during that year in the report which it is required to provide to the Lord Chancellor in relation to that year under paragraph 15 of Schedule 1. N.I.

(2) Where the Commission proposes to exercise any functions by virtue of paragraph 4(2) or 5(2) during any financial year, it shall deal with how it intends to exercise those functions during that year in the plan which it is required to prepare in relation to that year under paragraph 16 of Schedule 1.

(3) In this paragraph “financial year” has the meaning given by paragraph 15 of Schedule 1, but does not, in relation to any plan prepared under paragraph 16 of that Schedule, include the year specified in paragraph 15(4)(a) of that Schedule.

Grants and approvals under the 1981 Order N.I.

7.—(1) Any grant of legal aid under Part II of the 1981 Order which is in force immediately before the second appointed day shall, on and after that day, have effect as a decision of the Commission to fund representation as a civil legal service. N.I.

(2) Any approval given in connection with the grant of legal aid under Part II of the 1981 Order which is in force immediately before the second appointed day shall, on and after that day, have effect as a decision of the Commission to fund representation as a civil legal service.

(3) Any approval given in connection with the grant of assistance by way of representation under Part II of the 1981 Order which is in force immediately before the second appointed day shall, on and after that day, have effect as a decision of the Commission to fund representation as a civil legal service.

(4) Any approval given in connection with the grant of advice or assistance under Part II of the 1981 Order which is in force immediately before the second appointed day shall, on and after that day, have effect as an approval by the Commission in connection with the funding of advice or assistance as a civil legal service.

Chief Executive of the Commission N.I.

8.—(1) Notwithstanding anything in paragraph 10 of Schedule 1, the first appointment of a chief executive of the Commission shall be made by the Lord Chancellor. N.I.

(2) Any appointment under this paragraph shall be made on such terms and conditions as the Lord Chancellor may determine.

The Commission: transfers of employment N.I.

9.—(1) The Commission shall make, not later than such date as the Lord Chancellor may determine, an offer of employment by the Commission to such of the persons employed immediately before that date by the Law Society for the purpose of its functions under the 1981 Order as fall within such descriptions as the Lord Chancellor designates for the purposes of this paragraph or are persons whom the Commission wishes to employ. N.I.

(2) The terms of the offer shall be such that they are, taken as a whole, not less favourable to the person to whom the offer is made than the terms on which he is employed on the date on which the offer is made.

(3) An offer made in pursuance of this paragraph shall not be revocable during the period of 3 months commencing with the date on which it is made.

10.—(1) Where a person becomes an employee of the Commission on acceptance of an offer made under paragraph 9, then, for the purposes of the Employment Rights (Northern Ireland) Order 1996F32 , his period of employment with the Law Society shall count as a period of employment by the Commission, and the change of employment shall not break the continuity of the period of employment. N.I.

(2) Where an offer is made under paragraph 9 to any person, none of the agreed redundancy procedures applicable to employees of the Law Society shall apply to him.

(3) Where a person employed by the Law Society ceases to be so employed—

(a) on becoming a member of the staff of the Commission on accepting an offer under paragraph 9, or

(b) having unreasonably refused such an offer,

Part XII of the Employment Rights (Northern Ireland) Order 1996 shall not apply to him and he shall not be treated for the purposes of any scheme in force under Article 21 of the 1981 Order as having been retired on redundancy.

(4) Where a person to whom an offer under paragraph 9 has been made continues in employment in the Law Society after having not unreasonably refused that offer he shall be treated for all purposes as if no offer under paragraph 9 had been made to him.

F32 1996 NI 16

11.—(1) Any dispute as to whether an offer purporting to be made under paragraph 9 complies with that paragraph shall be referred to and be determined by an industrial tribunal. N.I.

(2) An industrial tribunal shall not consider a complaint referred to it under sub-paragraph (1) unless the complaint is presented to the tribunal before the end of the period of 3 months beginning with the date of the offer of employment or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months.

(3) Except as provided by Article 22 of the Industrial Tribunals (Northern Ireland) Order 1996F33 , no appeal shall lie from the decision of an industrial tribunal under this paragraph.

F33 1996 NI 18

Pensions N.I.

12.  Any arrangements made by the Law Society under Article 21 of the 1981 Order in respect of any pension shall be treated on and after the first appointed day (so far as may be necessary to preserve their effect) as having been made under paragraph 11(1) of Schedule 1 to this Order, and any pension scheme administered by the Law Society immediately before the first appointed day shall be deemed to be a pension scheme established and administered by the Commission under that paragraph and shall continue to be administered accordingly. N.I.

Assistance with functions N.I.

13.—(1) The Law Society shall give to the Commission all the information, prepare all the documents and do all other things which appear to the Commission appropriate for the purpose of facilitating— N.I.

(a) the carrying into effect of the transfers effected by paragraph 2(1), and

(b) the exercise of any functions conferred or imposed on the Commission by this Order;

and the Law Society may do anything else which appears to it appropriate for that purpose.

(2) From the first appointed day, the Commission shall make available to the Law Society such facilities as it may reasonably require for exercising its functions under this paragraph or paragraph 3.

N.I.

Schedule 4—Amendments

N.I.

Schedule 5—Repeals