Legal Aid Act 1988

34 Regulations. E+W

(1) The Lord Chancellor may make such regulations as appear to him necessary or desirable for giving effect to this Act or for preventing abuses of it.

(2) Without prejudice to the generality of subsection (1) above, any such regulations may—

(a) make provision as to the matters which are or are not to be treated as distinct matters for the purposes of advice or assistance under Part III, as to the proceedings which are or are not to be treated as distinct proceedings for the purposes of representation under Part IV, and as to the apportionment of sums recoverable or recovered by virtue of any order for costs made generally with respect to matters or proceedings treated as distinct;

(b) regulate the procedure of any court or tribunal in relation to advice, assistance or representation under this Act or orders for costs made thereunder and authorise the delegation (subject to appeal) or the exercise of their functions by members, officers or other courts or the judges or members of other courts;

(c) regulate the availability of advice, assistance or representation (other than for the purposes of proceedings for contempt) and the making of contributions towards its provision by reference to the financial resources or, in prescribed cases, the aggregate financial resources, of persons and provide for the courts, persons or bodies who are to determine the financial resources of persons and the persons who are to be required or permitted to furnish information for those purposes;

(d) provide for the cases in which a person may be refused advice, assistance or representation or have the grant of it withdrawn or revoked by reason of his conduct when seeking or receiving advice, assistance or representation (whether in the same or a different matter);

(e) make provision for the remuneration and payment of the expenses of [F1 legal representatives] and for the courts, persons or bodies by whom, and the manner in which, any determinations which may be required for those purposes are to be made, reviewed or appealed;

(f) make provision for the recovery of sums due to the Board and for making effective the charge created by this Act on property recovered or preserved for a legally assisted person and regulating the release or postponement of the enforcement of any charge (however created) in favour of the Board.

(3) Regulations may also modify this Act for the purposes of its application to prescribed descriptions of persons or in prescribed circumstances.

(4) Without prejudice to subsection (3) above, regulations may also modify this Act for the purposes of its application—

(a) in cases where its modification appears to the Lord Chancellor necessary for the purpose of fulfilling any obligation imposed on the United Kingdom or Her Majesty’s Government in the United Kingdom by any international agreement; or

(b) in relation to proceedings for securing the recognition or enforcement in England and Wales of judgments given outside the United Kingdom for whose recognition or enforcement in the United Kingdom provision is made by any international agreement.

(5) Regulations made for the purposes mentioned in subsection (2)(b) above may include provisions—

(a) as to the determination of costs incurred in connection with proceedings not actually begun; and

(b) as to the cases in which and extent to which a person receiving advice, assistance or representation may be required to give security for costs, and the manner in which it may be so given.

(6) Regulations made for the purposes mentioned in subsection (2)(c) above may provide that the income or capital of a person in receipt of prescribed social security benefits is to be taken as not exceeding a prescribed amount.

(7) Regulations made for the purposes mentioned in subsection (2)(e) above may include provisions—

(a) imposing conditions for the allowance of remuneration and expenses;

(b) attaching financial penalties in the event of appeals or reviews of determinations being unsuccessful;

(c) authorising the making of interim payments of remuneration or in respect of expenses.

(8) Regulations made for the purposes mentioned in subsection (2)(f) above may include provisions—

(a) for the enforcement for the benefit of the Board of an order or agreement for costs made in favour of a legally assisted person;

(b) for making a [F2 legal representative’s]right to payment by the Board wholly or partly dependent on his performance of the duties imposed on him by regulations made for the purposes of that paragraph; and

(c) requiring interest to be charged at a prescribed rate in circumstances where enforcement of a charge in favour of the Board is postponed.

(9) The Lord Chancellor, in making regulations for the purposes mentioned in subsection (2)(e) above as respects any description of legal aid work, shall have regard, among the matters which are relevant, to—

(a) the time and skill which it requires;

(b) the general level of fee income arising from it;

(c) the general level of expenses of [F3 legal representatives]which is attributable to it;

(d) the number and general level of competence of [F3 legal representatives]undertaking it;

(e) the effect of the regulations on the handling of the work; and

(f) the cost to public funds of any provision made by the regulations.

(10) Before making regulations for the purposes mentioned in subsection (2)(e) above, the Lord Chancellor shall consult the General Council of the Bar and the Law Society.

(11) Regulations under this Act may make different provision for different descriptions of advice, assistance or representation, for different cases or classes of case, for different areas or for other different circumstances and for different descriptions of persons.

(12) Before making regulations as to the procedure of any court or tribunal, the Lord Chancellor shall so far as practicable consult any rule committee or similar body by whom or on whose advice rules of procedure for the court or tribunal may be made apart from this provision or whose consent or concurrence is required to any such rules so made.

(13) No regulations shall be made under this section which include provision for the purposes mentioned in subsection (2)(c) or (e) above except with the consent of the Treasury.

(14) In subsection (6) above “social security benefits ” means any benefit provided under section 20(1) of the M1 Social Security Act 1986 (income-related benefits).

Textual Amendments

F1 Words in s. 34(2)(e) substituted (1. 4. 1991) by Courts and Legal Services Act 1990 (c. 41, SIF 37), s.125(3), Sch. 18 para. 63(5)(b); S.I. 1991/608, art. 2, Sch.

F2 Words in s. 34(8)(b) substituted (1. 4. 1991) by Courts and Legal Services Act 1990 (c. 41, SIF 37), s. 125(3), Sch. 18 para. 63(2); S.I. 1991/608, art. 2, Sch.

F3 Words in s. 34(9)(c)(d) substituted (1. 4. 1991) by Courts and Legal Services Act 1990 (c. 41, SIF 37), s. 125(3), Sch. 18 para. 63(5)(c); S.I. 1991/608, art. 2, Sch.

Marginal Citations

M1 1986 c. 50.