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Access to Justice (Jersey) Law 2019

Unofficial Consolidated Version

07.025

Showing the law as at 22 July 2021

 




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Access to Justice (Jersey) Law 2019

A LAW to make provision for improving access to justice by establishing a legal aid scheme, and for connected purposes.

Commencement [see endnotes]

1        Interpretation

In this Law, unless the context otherwise requires –

“applicant” means an applicant for legal aid;

“Law Society” has the meaning given by Article 1(1) of The Law Society of Jersey Law 2005;

“Legal Aid Guidelines Advisory Committee” means the committee established under Article 6;

“Legal Aid Guidelines” means the guidelines made under Article 7(1) or any revisions to the Legal Aid Guidelines under Article 7(12);

“Legal Aid Scheme” means the scheme established under Article 3;

“legal aid” means the provision of legal services under the Legal Aid Scheme;

“legal services” includes legal advice, legal assistance and legal representation;

“Minister” means the Chief Minister;

“prescribed” means prescribed by an Order made by the Minister.

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6        Establishment of Legal Aid Guidelines Advisory Committee

(1)     There is established a committee to be known as the Legal Aid Guidelines Advisory Committee for the purpose of advising and assisting the Minister in making the Legal Aid Guidelines.

(2)     The Legal Aid Guidelines Advisory Committee shall be chaired by the Judicial Greffier who shall be a member of the Legal Aid Guidelines Advisory Committee.

(3)     The Legal Aid Guidelines Advisory Committee shall also consist of the following members –

(a)     the Attorney General or a person nominated by the Attorney General;

(b)     the most senior officer of the Magistrate’s Court, or a person nominated by that senior officer;

(c)     the Bâtonnier or a person nominated by the Bâtonnier;

(d)     the President of the Law Society or a person nominated by the President;

(e)     the Chief Executive Officer of the Law Society or a person nominated by the Chief Executive Officer;

(f)      two persons nominated by the Bailiff;

(g)     two other persons nominated by the Minister who are residents of Jersey and who are not members of the States; and

(h)     two members of the States, nominated by the States.

(4)     Before nominating a person under paragraph (3), the Judicial Greffier, must first be consulted.

(5)     A person shall be nominated under paragraph (3) for such period as may be specified by the person who has nominated him or her.

(6)     The Legal Aid Guidelines Advisory Committee may, subject to a quorum of not less than 7 members, meet for the conduct of business, adjourn and otherwise regulate its procedures as it thinks fit.

(7)     The Legal Aid Guidelines Advisory Committee shall, before advising and assisting the Minister –

(a)     consult the Bailiff and Magistrate;

(b)     consult such other persons as it considers appropriate; and

(c)     meet (unless it is inexpedient to do so).

(8)     The reports of the Legal Aid Guidelines Advisory Committee must be signed by not less than 7 members of the Legal Aid Guidelines Advisory Committee.

(9)     The Legal Aid Guidelines Advisory Committee must make a report to the Minister for the purpose of advising and assisting him or her under paragraph (1) no later than 6 months after its establishment under that paragraph.

(10)    The States may, by Regulations, amend the members of the Legal Aid Guidelines Advisory Committee listed in paragraph (3).

7        Legal Aid Guidelines

(1)     The Minister shall, with the advice and assistance of the Legal Aid Guidelines Advisory Committee, make and publish guidelines for the purpose of providing for the administration of the Legal Aid Scheme, including providing –

(a)     for the conditions under which legal aid shall be provided in Jersey;

(b)     for the responsibility for meeting the reasonable costs of legal services under the Legal Aid Scheme;

(c)     for the financial cost to individuals provided with legal aid; and

(d)     information regarding the Legal Aid Scheme to applicants and to advocates and solicitors who provide legal services under the Legal Aid Scheme.

(2)     Without prejudice to the generality of paragraph (1), the Legal Aid Guidelines may do any of the following –

(a)     subject to Article 9, specify the types of cases that may be eligible or not eligible for legal aid;

(b)     provide for different types of cases to be dealt with in accordance with different systems of legal aid under which –

(i)      legal services are provided by an advocate or a solicitor who is paid out of public funds for those legal services, or

(ii)      legal services are provided by an advocate or a solicitor who is not paid out of public funds but may receive contributions from an applicant in accordance with the provisions made under sub-paragraphs (f), (g), (h) and (i);

(c)     specify the factors that may be relevant to providing legal aid, take into account the circumstances in which it is appropriate to provide legal aid, and may, in particular, set out the extent to which the factors ought to reflect the following –

(i)      the likely cost of providing the legal services and the benefit which may be obtained by the legal services being provided,

(ii)      the appropriateness of applying available resources to provide the legal services, having regard to present and likely future demands for the provision of legal services,

(iii)     the importance to an individual of the matters in relation to which the legal services would be provided,

(iv)     the nature and seriousness of the act, circumstances or other matter in relation to which the legal services are sought,

(v)     the availability to an individual of legal services provided and the likelihood of the individual being able to make use of such legal services,

(vi)     if the legal services are sought by an individual in relation to a dispute, the individual’s prospects of success in the dispute,

(vii)    the conduct of an individual in connection with legal services made available or in connection with an application for such legal services,

(viii)   the conduct of an individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties,

(ix)     the public interest, and

(x)     an individual’s residential status, length of residency, or other connection with Jersey;

(d)     set out the system for determining whether legal aid is provided, including provisions in respect of –

(i)      obtaining legal opinions, and such other advice as is required to make a determination,

(ii)      making provision for the involvement of the Bâtonnier, the Law Society, its employees, or any of its officers in the exercise of functions under this Law, and

(iii)     obtaining of an advocate or a solicitor, whether by a system of compulsory assignment of an advocate or a solicitor, or otherwise providing legal representation where an applicant is unable to obtain legal representation;

(e)     establish financial eligibility criteria by reference to income and capital, including that of the applicant’s household;

(f)      make provision for determining whether a case falls within a class for which the advocate or solicitor must be paid by the Judicial Greffier for the provision of legal services;

(g)     make provision for determining the rates and amounts of payments for the provision of legal aid,

(h)     make provision for the criteria for the payment of financial contributions by persons eligible for legal aid to –

(i)      their advocate or solicitor, or

(ii)      the Judicial Greffier;

(i)      make provision for limiting financial contributions under sub-paragraph (h) to –

(a)     a maximum specific payment; or

(b)     a maximum periodic payment and for limiting the length of time for which periodic payments are to be made;

(j)      make provision in respect of procedures for billing persons provided with legal aid, and the recovery of amounts unpaid;

(k)     make provision for legal aid to be conditional on an arbitration agreement (within the meaning given by Article 1 of the Arbitration (Jersey) Law 1998) that disputes as to fees payable for work done shall be subject to arbitration and for the form of that arbitration;

(l)      set out the duties of advocates and solicitors in respect of work undertaken in respect of legal aid and for the provision of legal services and other assistance in the administration of the legal aid scheme;

(m)    provide for the establishment and maintenance of panels of advocates or solicitors, or both, to undertake particular categories of work;

(n)     provide for the waiver of contributions to legal aid, whether payable to the advocate or solicitor or in respect of public funds provided by the States, on the grounds of hardship arising from a change in financial circumstances since the legal services were provided;

(o)     provide for the review, revocation and revision of grants of legal aid;

(p)     impose requirements for an applicant to provide information to the Judicial Greffier;

(q)     impose requirements for an applicant to co-operate with the advocates or solicitors providing legal services under this Law, and impose requirements as to the conduct of the applicant in respect of claims supported by legal aid;

(r)      impose conditions for the renewal of applications;

(s)      impose conditions for the making of payments whether directly or by way of the advocate or solicitor assigned to the client for the purposes of meeting disbursements, such as the obtaining of records or payment of expert witnesses;

(t)      set out conditions whereby amounts paid under the Legal Aid Scheme for the benefit of an applicant will be recoverable under Article 10(3);

(u)     provide for any matters of procedure to be specified by a practice direction published by the Judicial Greffier.

(3)     The Legal Aid Guidelines may do any of the following –

(a)     make different provisions, both in terms of the tests for eligibility and the procedures to be followed, depending on when in the course of litigation an application is made;

(b)     make particular provision (which may include the complete exclusion from eligibility) in respect of companies, partnerships and claims brought in respect of businesses;

(c)     provide for such other matters as are necessary or expedient.

(4)     In preparing the Legal Aid Guidelines, the Minister shall publish the Minister’s proposals and seek representations from the public.

(5)     The manner in which –

(a)     the Minister’s proposal for the Legal Aid Guidelines shall be published; and

(b)     representations may be provided by members of the public,

shall be prescribed.

(6)     The Minister shall consider the representations that he or she has received in preparing the Legal Aid Guidelines.

(7)     If the Minister makes Legal Aid Guidelines, before publishing the Legal Aid Guidelines –

(a)     the Minister shall lay the Legal Aid Guidelines before the States;

(b)     the Minister shall, in the Legal Aid Guidelines, specify the date that they are to take effect, being at least 4 weeks after they are laid before the States.

(8)     A member of the States may, within 4 weeks after the Legal Aid Guidelines are laid before the States under paragraph (7), lodge a proposition requesting that the States annul them.

(9)     The Legal Aid Guidelines shall not come into effect during any period within which a proposition requesting their annulment under paragraph (8) is outstanding.

(10)    If the proposition requesting that the States annul the Legal Aid Guidelines under paragraph (8) –

(a)     is approved by the States, the Legal Aid Guidelines shall be annulled and shall not come into effect; or

(b)     is withdrawn, the Legal Aid Guidelines shall come into effect on the date specified in the Legal Aid Guidelines and shall be published in a way that makes them available to the public..

(11)    The Minister may at any time revoke any Legal Aid Guidelines published under this Article.

(12)    The Minister may, from time to time, revise the Legal Aid Guidelines made under this Article and a reference to the Legal Aid Guidelines includes a reference to the revised Legal Aid Guidelines.

8        Transfer of cases

(1)     The Legal Aid Guidelines may provide for the transfer of different types of cases between the different systems of legal aid referred to in Article 7(2)(b).

(2)     Without prejudice to the generality of paragraph (1), the Legal Aid Guidelines may, in particular, provide for the transfer of cases in respect of legal services referred to in Article 7(2)(b)(ii) if there are insufficient advocates or solicitors to support the system of legal aid under which those legal services are provided.

9        Exceptional circumstances

The Legal Aid Guidelines must make provision for legal aid to be provided in exceptional circumstances which shall include cases in respect of which compliance with –

(a)     the Human Rights (Jersey) Law 2000 or any other enactment;

(b)     obligations arising under Article 2 of the European Union (Jersey) Law 1973; or

(c)     obligations arising under international obligations,

makes it necessary that such legal aid be provided.

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23      Citation and commencement

This Law may be cited as the Access to Justice (Jersey) Law 2019 and shall come into force on such day or days as the States may by Act appoint, and different dates may be appointed for different provisions and different purposes of this Law. [this Article not yet in force]

 


Endnotes

Table of Legislation History

Legislation

Year and No

Commencement

Projet No (where applicable)

Access to Justice (Jersey) Law 2019

L.11/2019

22 July 2021 – except Articles 2 to 5 and 10 to 23

 

Not in force – Articles 2 to 5 and 10 to 23

P.23/2019

Projets available at statesassembly.gov.je

Table of Endnote References

There are currently no endnote references


Page Last Updated: 22 Jul 2021