Until the Standard Contract came in in November 2010 (for all except family and housing with family contracts), the general rule was that firms had devolved powers to issue emergency certificates. The exception was immigration; instead of all firms having devolved powers by default, only those specifically awarded them by the LSC did so.
The Standard Contract added restrictions to devolved powers in judicial review cases. Paragraph 5.5 (a) provides:
Judicial Review Proceedings: you do not have the power to grant, amend or
refuse to amend an Emergency Certificate for Judicial Review Proceedings in
any Category of Law, other than in relation to proceedings under Part VII
Housing Act 1996, section 21 National Assistance Act 1948, section 20
Children Act 1989 or section 47(5) National Health Service and Community
Care Act 1995 unless we have specifically granted you this power in writing.
If we grant such a Devolved Power you must exercise it only in relation to
such cases and in such circumstances as we specify
Therefore, devolved powers in judicial review cases could only be exercised in a limited number of emergency situations.
However, the LSC did not bring that provision into force for existing providers when the contract began – only new entrants (or those who had previously had devolved powers removed) were caught by it. Instead, they said in November 2010 that they would consult on new arrangements in early 2011, with a view to introducing them in April 2011. No consultation was ever forthcoming.
The LSC has now announced that the status quo will continue until at least January 2012. There is also detailed guidance (PDF). In summary, the following do NOT have devolved powers to issue certificates in judicial review cases (apart from the limited cases specified in 5.5(a)):
- Immigration contract holders (except those specifically granted devolved powers);
- Providers whose devolved powers were suspended or removed under the Unified Contract;
- New entrants who did not previously hold a Unified Contract.
All other providers do have devolved powers. But remember that you can only exercise devolved powers in a category of law in which you have a contract – a family firm, for example, could not exercise devolved powers in a housing case unless it also held a housing contract. Instead it would have to make an emergency application to the LSC.
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