Commentary Schedule 4: Transfer of employees and property etc of Legal Services Commission Section 40 and Schedule 6: Northern Ireland: information about financial resources
268.Section 40 and Schedule 6 provide a gateway for the disclosure of information to the chief executive of the Northern Ireland Legal Services Commission (or other prescribed person) by the Secretary of State (in practice, the Secretary of State for Work and Pensions), the Commissioners for Her Majesty’s Revenue and Customs (“the Commissioners”), the Department for Social Development in Northern Ireland or the Department of Finance and Personnel in Northern Ireland (the “relevant Northern Ireland Departments”). It also provides restrictions on the disclosure of that information. These provisions closely mirror the provisions in sections 22 and 33 that relate to information requests by the Director (or other prescribed persons).
269.Paragraph 1(1) of Schedule 6 enables the chief executive (or other prescribed person) to make a request for certain information to the Secretary of State, a relevant Northern Ireland Department or the Commissioners. Paragraph 1(2) provides that such a request may only be made for the purpose of facilitating a determination about an individual’s financially eligibility for legal aid under the Northern Ireland legislation that governs the provision of legal aid.
270.Paragraph 1(3) lists the categories of information which may be requested from the Secretary of State or the relevant Northern Ireland Departments. It includes a power to add further categories of information by secondary legislation.
271.Paragraph 1(4) lists the categories of information which may be requested from the Commissioners. It includes a power to add further categories of information by secondary legislation, with the Commissioners’ consent (see paragraph 1(6)).
272.Paragraph 1(7) provides that the Secretary of State, the relevant Northern Ireland Departments and the Commissioners may disclose to the chief executive (or other prescribed person) information specified in an information request made under this Schedule.
273.Paragraph 2 of Schedule 6 provides for the protection of information obtained under the information gateway in paragraph 1. Paragraph 2(1) and (2) provide that a person who receives information under paragraph 1 of this Schedule may only disclose or use that information if it is necessary or expedient to do so in connection with determining financial eligibility for legal aid.
274.Paragraph 2(3) qualifies paragraph 2(2) by providing for limited circumstances in which the information may be used for purposes other than assessing financial eligibility. Disclosure is permitted if it would be in accordance with an enactment or in accordance with a court order, if it is for the purposes of the investigation or prosecution of an offence or suspected offence or if it for the purposes of proceedings before a court, including instituting such proceedings. Disclosure is also permitted if the information has already been lawfully disclosed to the public.
275.Paragraph 2(4) provides that disclosure or use of information contrary to this section is a criminal offence and specifies the maximum penalties. The penalty for the offence will be, on conviction on indictment, imprisonment for a term not exceeding two years or a fine (or both) and, on summary conviction in England and Wales, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and in Northern Ireland to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (currently £5,000), or both.
276.Paragraph 2(5) provides a statutory defence to the criminal offence detailed in paragraph 2(4) where the person charged with the offence reasonably believed that the disclosure or use was lawful.
277.Paragraph 2(7) clarifies, in relation to the summary penalty in England and Wales for an offence under this paragraph committed before the commencement of section 154(1) of the 1991 Act, that the reference to 12 months imprisonment has effect as if it were a reference to 6 months.
278.Paragraph 3 of Schedule 6 enables the Department for Justice in Northern Ireland to make consequential, supplementary, incidental or transitional provision by regulations in relation to the provisions of this Schedule. Paragraph 4 makes provision about the powers to make regulations under the Schedule. Those powers are conferred on the Department for Justice in Northern Ireland. Under paragraph 4(4) the first regulations under paragraph 1 and any regulations under paragraph 3 that amend or repeal Northern Ireland legislation will be subject to the affirmative resolution procedure but otherwise regulations under the Schedule are subject to the negative resolution procedure.