Legal Aid Act 1988

JurisdictionUK Non-devolved
Citation1988 c. 34


Legal Aid Act 1988

1988 CHAPTER 34

An Act to make new provision for the administration of, and to revise the law relating to, legal aid, advice and assistance.

[29th July 1988]

B e it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

I Preliminary

Part I

Preliminary

S-1 Purpose of this Act.

1 Purpose of this Act.

The purpose of this Act is to establish a framework for the provision under Parts II, III, IV, V and VI of advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means.

S-2 Interpretation.

2 Interpretation.

(1) This section has effect for the interpretation of this Act.

(2) ‘Advice’ means oral or written advice on the application of English law to any particular circumstances that have arisen in relation to the person seeking the advice and as to the steps which that person might appropriately take having regard to the application of English law to those circumstances.

(3) ‘Assistance’ means assistance in taking any of the steps which a person might take, including steps with respect to proceedings, having regard to the application of English law to any particular circumstances that have arisen in relation to him, whether by taking such steps on his behalf (including assistance by way of representation) or by assisting him in taking them on his own behalf.

(4) ‘Representation’ means representation for the purposes of proceedings and it includes—

(a) all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings;

(b) all such assistance as is usually so given in civil proceedings in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings; and

(c) in the case of criminal proceedings, advice and assistance as to any appeal;

and related expressions have corresponding meanings.

(5) Regulations may specify what is, or is not, to be included in advice or assistance of any description, or representation for the purposes of proceedings of any description, to which any Part or provision of a Part of this Act applies and the regulations may provide for the inclusion, in prescribed circumstances, of advice or assistance given otherwise than under this Act.

(6) Advice, assistance and representation under this Act, except when made available under Part II, is only by persons who are solicitors or barristers, but in the case of Part II, may be by other persons.

(7) In any particular case, advice, assistance and representation under this Act, except when made available under Part II, shall be by solicitor and, so far as necessary counsel; but regulations may prescribe the circumstances in which representation is to be by counsel only or by solicitor only and regulate representation by more than one counsel.

(8) The Lord Chancellor may, if it appears to him to be necessary to do so 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, by order direct that such advice or assistance relating to the application of other laws than English law as is specified in the order shall be advice or assistance for any of the purposes of this Act.

(9) For the purposes of the application of subsection (8) above in the case of an obligation to provide for the transmission to other countries of applications for legal aid under their laws, the reference to advice or assistance relating to the application of other laws includes a reference to advice or assistance for the purposes of making and transmitting such an application.

(10) In this Act ‘person’ does not include a body of persons corporate or unincorporate which is not concerned in a representative, fiduciary or official capacity so as to authorise advice, assistance or representation to be granted to such a body.

(11) In this Act ‘legally assisted person’ means any person who receives, under this Act, advice, assistance or representation and, in relation to proceedings, any reference to an assisted party or an unassisted party is to be construed accordingly.

II Legal Aid Board and Legal Aid

Part II

Legal Aid Board and Legal Aid

S-3 The Legal Aid Board.

3 The Legal Aid Board.

(1) There shall be established a body to be known as the Legal Aid Board (in this Act referred to as ‘the Board’).

(2) Subject to subsections (3) and (4) below, the Board shall have the general function of securing that advice, assistance and representation are available in accordance with this Act and of administering this Act.

(3) Subsection (2) above does not confer on the Board any functions with respect to the grant of representation under Part VI for the purposes of proceedings for contempt.

(4) Subsection (2) above does not confer on the Board any of the following functions unless the Lord Chancellor so directs by order and then only to the extent specified in the order.

The functions referred to are—

(a) determination of the costs of representation under Part IV;

(b) functions as respects representation under Part V other than determination of the costs of representation for the purposes of proceedings in magistrates' courts;

(c) functions as respects representation under Part VI for the purposes of care proceedings other than proceedings on an appeal from the decision of a juvenile court to the High Court;

(d) determination of the financial resources of persons for the purposes of this Act.

(5) Subject to subsection (6) below, the Board shall consist of no fewer than 11 and no more than 17 members appointed by the Lord Chancellor; and the Lord Chancellor shall appoint one of the members to be chairman.

(6) The Lord Chancellor may, by order, substitute, for the number for the time being specified in subsection (5) above as the maximum or minimum membership of the Board, such other number as he thinks appropriate.

(7) The Board shall include at least two solicitors appointed after consultation with the Law Society.

(8) The Lord Chancellor shall consult the General Council of the Bar with a view to the inclusion on the Board of at least two barristers.

(9) In appointing persons to be members of the Board the Lord Chancellor shall have regard to the desirability of securing that the Board includes persons having expertise in or knowledge of—

(a) the provision of legal services;

(b) the work of the courts and social conditions; and

(c) management.

(10) Schedule 1 to this Act shall have effect with respect to the Board.

S-4 Powers of the Board.

4 Powers of the Board.

(1) Subject to the provisions of this Act, the Board may do anything—

(a) which it considers necessary or desirable to provide or secure the provision of advice, assistance and representation under this Act; or

(b) which is calculated to facilitate or is incidental or conducive to the discharge of its functions;

and advice, assistance and representation may be provided in different ways in different areas in England and Wales and in different ways in different fields of law.

(2) Without prejudice to the generality of subsection (1) above, the Board shall have power—

(a) to enter into any contract including, subject to subsection (7) below, any contract to acquire or dispose of land;

(b) to make grants (with or without conditions, including conditions as to repayment);

(c) to make loans;

(d) to invest money;

(e) to promote or assist in the promotion of publicity relating to the functions of the Board;

(f) to undertake any inquiry or investigation which the Board considers necessary or expedient in relation to the discharge of its functions; and

(g) to give the Lord Chancellor such advice as it may consider appropriate in relation to the provision of advice, assistance and representation under this Act.

(3) Subsection (1) above does not confer on the Board power to borrow money or to acquire and hold shares in bodies corporate or take part in forming bodies corporate.

(4) The powers to provide advice, assistance or representation under this Part and to secure its provision under this Part by means of contracts with, or grants or loans to, other persons...

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