§ 42 Clause 22, page 16, line 6, at end insert ("and any authorised by the Commission to be taken.").
§ Lord Falconer of Thoroton
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 42. I shall also speak to Commons Amendment No. 44.
Amendment No. 42 corrects an omission in the Bill as drafted. Clause 22(2) provides that people providing services funded by the commission cannot take any payment other than that made by the commission. This carries over from Section 31(3) of the Legal Aid Act 1988 the prohibition on "topping-up"; that is, seeking to supplement legal aid rates by charging the client an additional sum. The Legal Aid Act allows exceptions to be made by regulations. Amendment No. 42 will enable the Commission to authorise exceptions to the general prohibition. It would do this as a term in any relevant contract.
Commons Amendment No. 44 is a drafting amendment intended simply to shorten the Bill by some eight lines. Clause 22(5) mirrors Section 31(2) of the Legal Aid Act 1988. Section 31(2) puts beyond doubt that a successful legally-aided litigant can recover his or her costs from the opposing party. This is to prevent any argument that the assisted person is not entitled to costs under the indemnity principle.
428 A provision along these lines has been part of the legal aid legislation since 1949. Since then, legal aid has become a firmly established part of the legal system, and several other forms of funding which override the strict indemnity principle have developed. Commons Amendment No. 69, which we will discuss later, is a general provision to allow rules of court to override the indemnity principle. So it is now inconceivable that any court would seriously entertain the argument that a legally-assisted litigant was not entitled to costs.
But even if that were in doubt, Clause 22(5) is unnecessary. Clause 12 contains a broad power to make regulations about costs in cases involving people funded by the Community Legal Service, and subsection (3)(e) specifies that these may include regulations about the principles for determining the amount to be awarded to such a person. As for criminal cases, Clause 22(5) does not apply in any event. Costs in these cases are governed by the Prosecution of Offences Act 1985. I commend the amendment to the House.
§ On Question, Motion agreed to.