40. (1) This section applies to the following (in this section referred to as “proceedings”):

(a) legal proceedings involving law or practice relating to the protection of human rights which a person has instituted or wishes to institute;

(b) legal proceedings in the course of which a person relies on or wishes to rely on such law or practice;

(c) the making of a reference or application under—

(i) this Part,

(ii) Part III of the Act of 2000,

(iii) Part VII of the Act of 1998,

(iv) section 19 of the Act of 2003, or

(v) any legal proceedings resulting from or arising out of a reference or application referred to in subparagraphs (i), (ii), (iii) or (iv),

in circumstances where a person considers that a club referred to in section 8 of the Act of 2000 is a discriminating club within the meaning of that section, or discrimination has been directed against him or her by another person, or that he or she has been adversely affected by the failure or refusal by another person—

(I) to comply with an equality clause or an equal remuneration term,

(II) to implement a decision, order or determination under this Part or Part III of the Act of 2000, or

(III) to implement a mediated settlement under section 78 of the Act of 1998 or section 24 of the Act of 2000.

(2) A person (in this section referred to as the “applicant”) may apply to the Commission for assistance in relation to proceedings to which this section applies.

(3) Where an applicant applies to the Commission for assistance, the Commission may decide to grant to the applicant such assistance as is appropriate on any of the criteria specified in subsection (4) but before making a decision in that regard, the Commission shall consider whether—

(a) the assistance sought could be obtained by the applicant—

(i) under the Civil Legal Aid Act 1995,

(ii) under the Criminal Justice (Legal Aid) Act 1962, or

(iii) by any other means, whether or not provided for by or under any enactment,

or

(b) powers to award redress or grant relief in relation to the matter to which the proceedings relate stand vested in any tribunal or other person and the matter could, in the opinion of the Commission, be more effectively or conveniently dealt with by that tribunal or other person.

(4) Each of the following criteria is specified for the purposes of subsection (3):

(a) the matter to which the proceedings concerned relate raises a question of principle;

(b) it would be unreasonable to expect the person to deal with the matter to which the proceedings concerned relate without assistance because of its complexity or for any other reason;

(c) there are other special circumstances which make it appropriate for the Commission to grant such assistance.

(5) Any arrangements made by the Commission under this section for the provision of legal advice to, or representation for, the applicant may include provision for the recovery of expenses incurred by or on behalf of the Commission in that behalf from the applicant in specified circumstances.

(6) The relationship between a solicitor employed by the Commission or any barrister retained by him or her and a person granted assistance under this section shall be the same as the relationship between a solicitor or barrister and a client who is not such a person.

(7) Subsection (6) is without prejudice to the rights and responsibilities of the Commission and the obligations arising out of the relationship between the Commission and the solicitors employed by it.

(8) For the avoidance of doubt, it is declared that sections 59 and 64 of the Solicitors Act 1954 do not apply in relation to the provision by a solicitor employed by the Commission of assistance under this section.

(9) The powers conferred on the Commission under this section are in addition to and not in substitution for any other power of the Commission to institute proceedings, refer any matter or make any application by or under this Act, the Act of 1998, the Act of 2000 or any other enactment.

(10) In this section—

“assistance” means any or all of the following:

(a) the provision, or the arranging for the provision of, legal advice to the applicant;

(b) the provision, or the arranging for the provision of, legal representation to the applicant;

(c) the provision of such other assistance to the applicant as the Commission deems appropriate in the circumstances;

“person requesting assistance” includes a person to whom assistance is being, or has been, provided under this section;

“relationship” includes rights and privileges arising from the relationship.