The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Civil Legal Aid (Remuneration) Regulations 2013 (S.I. 2013/422) (“the Remuneration Regulations”), which make provision about the payment by the Lord Chancellor to persons who provide civil legal services under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) (“the Act”). These Regulations replace the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 (S.I. 2014/607), which were quashed by the High Court by order dated 19th March 2015 in Q (on the application of Ben Hoare Bell Solicitors & others) v Lord Chancellor, [2015] EWHC 523 (Admin).

Regulation 2(3) inserts a new regulation 5A into the Remuneration Regulations. New regulation 5A provides that where an application for judicial review is issued, the Lord Chancellor must not pay remuneration for the making of that application unless (a) permission to proceed is given by the court; (b) permission is neither given nor refused and the Lord Chancellor considers that it is reasonable to pay remuneration (taking into account a number of factors in particular); (c) the defendant withdraws the decision to which the application for judicial review relates (and the withdrawal results in the court refusing permission or neither refusing nor giving permission); (d) the court orders an oral hearing; or (e) the court orders a rolled-up hearing.

New regulation 5A does not affect the payment of disbursements incurred in accordance with the contract under which the civil legal services are provided. New regulation 5A also does not affect the discretion of the Lord Chancellor to make payments on account in accordance with the relevant contract.

Regulation 12 of the Remuneration Regulations makes provision for the Lord Chancellor to make payments on account direct to barristers in independent practice. Regulation 2(6) of these Regulations amends regulation 12 to provide that where the Lord Chancellor does not pay remuneration for the application for judicial review under new regulation 5A, the barrister must repay the amount paid to them under regulation 12 of the Remuneration Regulations.

Regulation 2(2) of these Regulations provides that new regulation 5A is subject to regulation 5 of the Remuneration Regulations, which specifies that the Remuneration Regulations do not apply to civil legal services provided under certain contracts.

Regulation 2(4) and (5) provides that in order for remuneration to be paid under regulations 6(2) and 7(2) of the Remuneration Regulations for civil legal services consisting of making an application for judicial review, the Lord Chancellor must be permitted to pay remuneration under regulation 5A.

Regulation 3 provides that the amendments made by regulation 2 do not apply to a pre-commencement application for civil legal services. Regulation 4 defines a “pre-commencement application”.

An impact assessment of the effect of the policy implemented by this instrument on the costs of business and the voluntary sector was produced with the Government’s response to consultation, Judicial Review – proposals for further reform: the Government response and is available at https://consult.justice.gov.uk/. That impact assessment relates to the policy implemented by this instrument in so far as it relates to regulation 5A(1)(a) and (b) of the Remuneration Regulations. An impact assessment of the policy implemented by this instrument in so far as it relates to regulation 5A(1)(c) to (e) has not been produced; the impact of those provisions would be to reduce the costs as previously assessed for those providing civil legal services to which regulation 5A applies.