Commentary Provision of legal aid Section 5: Delegation
77.Section 5 makes provision about the delegation of the Lord Chancellor’s and Director’s functions.
78.Subsection (1) allows the Lord Chancellor to delegate the functions of the Lord Chancellor under section 1(3), which would include aspects of the civil legal advice telephone helpline, and under section 3, which may include delegating the accreditation and monitoring function to an outside organisation.
79.Subsection (2) allows the Lord Chancellor to make regulations providing for any functions that may be given to the Lord Chancellor under regulations made under Part 1 of the Act to be exercisable by a person authorised by the Lord Chancellor or employees of such a person.
80.Subsection (3) allows the Director to delegate the Director’s functions. This enables the Director to delegate, for example, decision-making in relation to the merits of a legal aid application, the application of any relevant means test for a particular area of work in relation to a legal aid application and the on-going monitoring of decisions.
81.Subsection (4) enables the Lord Chancellor to make regulations providing for functions conferred on the Director under regulations made under Part 1 of the Act to be exercisable by a person authorised by the Director or an employee of such a person.
82.Subsection (5) provides that under section 4 the Lord Chancellor may give directions to the Director about the delegation of the Director’s functions. The Lord Chancellor will be able to require the Director to delegate, or not to delegate, particular functions and to give directions about the persons to whom the Director may or may not delegate those functions.
83.Subsections (6) to (8) ensure that a function of the Lord Chancellor or Director may be delegated entirely or subject to limitations or conditions. For example, decision-making in relation to the merits and financial eligibility might be delegated to providers in relation to particular matters, or subject to particular financial limits as to the amount of work that can be carried out before the case must be referred to the Director for a decision on further legal aid funding.