Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)

I beg to move amendment No. 1, in clause 1, page 2, leave out line 23.

As the hon. Member for Somerton and Frome (Mr. Heath) has recognised, much of our debate will be on Government amendments Nos. 1 and 2, which could be said to go together. It may help the Committee if I explain the Government's position.  

The object of amendment No. 1 is to overturn an amendment passed in the House of Lords, because we do not feel that it would be helpful to have judicial oversight, in the way proposed in the other place, of what is essentially an administrative procedure. We accept that there has to be a right of appeal in cases in which a defendant believes that the interests of justice have not been served. As I stated on Second Reading, we make that clear in the supplement to the framework document, and I do not think that anybody would disagree. However, the Government strongly argue, as we have consistently argued, that should a defendant complain about a miscalculation or an error in the administration of a means test, an administrative review of the application would be more appropriate than an appeal.

Concerns expressed in the other place led to the amendment to which I have referred but I believe that the were misplaced. Amendment Nos. 1 and 2 seek to reverse the position and to restore the Bill to its original state. We believe unequivocally that the applicant should have the opportunity to challenge a determination if he is found to be not financially eligible for criminal legal aid. We propose judicial review not as an alternative to appeal but as a further stage after review. The key question, therefore, whether the hearing should be conducted by the Legal Services Commission or whether there should be a full court appeal. We have consistently stated our view that the financial eligibility test is almost entirely a matter of fact, not of judgment. It is an administrative process, not a judicial one. As I stressed on Second Reading, that assessment is shared by senior members of the judiciary.

David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton & Frome, Liberal Democrat)

Will the Minister confirm that she said what I think I heard her say—that it is almost entirely a matter of fact?

Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)

Personally, I would say that it is entirely a matter of fact; I cannot foresee a situation in which the financial eligibility test would not be purely administrative.

The decisions that will need to be taken will not call for fine judgments on obscure or complex issues of law, so I see no need for the courts to be involved, as they should be left to focus on judicial matters. It is right, for example, that they should decide on appeal whether it would be in the interests of justice that a defendant should be legally represented. That would rightly fall within the ambit of the court. The court might also be asked to consider whether assault was likely to result in imprisonment if the defendant was convicted.

The judiciary should clearly take a view on such matters, but it is not for the courts to decide on appeal whether the state should intervene to pay an individual's defence costs. Determining whether an applicant's declared income has been properly calculated is not the sort of task that should be dealt with other than administratively. That is why Government amendment No. 2 to clause 2(2) re-introduces a provision to allow for the review of such decisions. It will form part of proposed new paragraph 3B(4) on financial eligibility, which will be   inserted into schedule 3 to the Access to Justice Act 1999.

The hon. Member for Somerton and Frome has argued that application of the means test could give rise to complex cases that would be more appropriately dealt with by appeal. On Second Reading, he referred to the problems of assessing joint incomes if there has been an estrangement or if the applicant has a new partner. I raise the subject now although I am sure that he will come back to it later in the debate because it allows me to ask some questions.

Is the hon. Gentleman saying that the ''complex'' cases he talks of raise issues of fact or of law? If they remain issues of fact, however complex they might be, it would surely be suitable for the Legal Services Commission to review them, and they therefore should not be the subject of an appeal to the court. A case might raise a question of law or interpretation of the Access to Justice Act 1999 or the regulations, and a complaint on an error of law would be a proper ground for judicial review. Nevertheless, we believe that such cases will be so rare that it will be proper for them to be dealt with by judicial review, after internal review. They will not require an intermediate appeal to the court.

I have gone into considerable detail in explaining the Government's reasoning for introducing a review process for applicants unhappy with determination of the means test. I hope that it is clearer why retention of the power in paragraph 4 of schedule 3 to the Access to Justice Act 1999 is so critical. The power allows cases to be prescribed in which an applicant cannot appeal against a decision to refuse representation or to withdraw a right to representation. Without that power in its current form, there would be a clear inconsistency with proposals to allow for a review of the means test.

I stress that the power would never be used to implement regulations that might seek a wholesale ban on the right of appeal. However, it will allow us to guard against abuse of the system. For example, it is possible that some applicants might seek to abuse the system—for example, by submitting countless appeals against an unfavourable decision. That would be a gross misuse of the court's time and resources. Retention of the power will give us the means to tackle such abuse, and we therefore consider the amendment both prudent and essential.

I suspect that this will be my longest speech today, so I conclude by saying that it is my belief that the appeal and review process proposed by the new scheme strikes the correct balance between a robust defence of an individual's rights and the need to ensure that court resources are not misused. I trust I can rely on the Committee's support for the Government's first and, indeed, the second amendment.

Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)

I declare any interest that I might have as a practising solicitor.

This brief Bill—I use the word brief in the context of our position on Second Reading, where we made it clear that it will do little to alleviate the hard times that have befallen legal aid practitioners—will allow the power to grant rights for representations to be   transferred from the courts to the Legal Services Commission, introduce a means test for the granting of such funding and, where the test is met, advise for contribution orders based on means.

Several amendments were made in the other place, and I pay tribute to their lordships for the work done on the Bill. The Conservative Opposition feel that access to justice is an important matter that requires full and serious consideration. Through the determined efforts of our noble Friends and others in the other place such detailed consideration has been possible. As the Minister said, today is not the time or place to go over every single argument that has already been made.

We welcome the restoration by amendment in the other place of responsibility for legal aid matters to the Lord Chancellor, as we welcome the amendments made on appeals. I will emphasise that point later, but suffice it to say for the moment that we believe it important that the court should be able to hear appeals on the interests of justice tests as well as on the eligibility tests, and they should be able to consider such matters afresh. We were, therefore, somewhat disappointed with the Government's decision to overturn measured, considered and expert amendments supported by their noble lordships. I point out immediately that the Conservative party has long been in favour of many of the measures contained in the Bill, particularly the concept of means-testing for those who can afford it, which was abolished by the Government in 2001.

We have problems with amendment No. 1 and with the Government's general position. This ground has, of course, been extensively covered by in the other place, where Lord Goodhart—

David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton & Frome, Liberal Democrat)

Hear, hear.

Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)

Hear, hear. Lord Goodhart succinctly expressed the context in which the paragraph in question changed and the amendment was passed:

''The basic rule must be that a decision that may lead to a denial of access to justice should be taken only by a judge or at the least, if taken by someone else, should be subject to appeal to a judge or a court. That is particularly so in a case such as this, where the Legal Services Commission has a conflict of interests, because it has the responsibility for keeping legal aid within budget and therefore arguably has interests which potentially conflict with those of applicants.''—[Official Report, House of Lords 17 October 2005; Vol. 674, c. 583.]

I agree with that position, which was strongly supported by my noble Friends. We oppose the amendment on the same grounds.

As it stands, line 23 allows appeals in all cases and removes the power by regulation to remove the right of appeal. A total removal of the right of appeal on eligibility grounds cannot, we believe, be justified. We welcome the Government's acceptance of appeals relating to merits cases but we stress that there will always be cases in which exceptional circumstances require funding for people who fail to meet the basic eligibility criteria. The Government recognise that to some extent in their supplement to the framework document:  

''The basic rule must be that a decision that may lead to a denial of access to justice should be taken only by a judge or at the least, if taken by someone else, should be subject to appeal to a judge or a court.''

We therefore believe that reducing the decision to a purely administrative issue of the kind described in the Minister's opening remarks is not adequate. The Law Society supports our view and has stated that there must be a right of appeal to the magistrates court. It has written to me and, I imagine, to other members of the Committee, and we should keep it in mind that the Law Society represents the view of users at the coal face. Its position therefore deserves to be reviewed carefully, and I shall ask the Minister to address some of its comments.

The Law Society believes that

''the right of appeal must be to the magistrates' court. This will not only be quicker, but the magistrates will have a good understanding of the case and of whether or not the client should be represented. This would be more efficient than having an appeal to a separate body totally disconnected from the Court process. The appeal mechanism should not be tied strictly to the mathematical formula on which the means test is based, but must have the flexibility to be varied when the interests of justice require.''

It notes:

''The Government proposes that the only two grounds on which a review may be requested are when there has been 'a material change in the defendant's circumstances', or when there has been 'a suspected miscalculation . . . or some other evidence of maladministration of the test''.

It believes that

''there are likely to be many other circumstances in which a client of average means may be unable to pay for his/her representation, and should be afforded the opportunity to appeal to the court against a refusal of legal aid on the grounds that it would be in the interests of justice for legal aid to be granted.''

The Law Society accepts that

''a detailed assessment of the clients' means in every case would be disproportionate,''

but states that that is why

''the discretion of the court in appropriate circumstances is required.''

It goes on to say:

''It is therefore crucial that in the interests of justice, there is a degree of flexibility built into the decision-making process that would ensure that those people who are genuinely unable to pay are not left without representation.''

It believes that

''appeals against refusals to grant legal aid on the grounds of means must also be referred to the court, as in many cases there will more to consider than a simple miscalculation.''

I find those arguments compelling, and the Minister should address them.

I think that I can foresee where the Liberals will come from on this issue, and I ask hon. Members to vote against the amendment.

David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton & Frome, Liberal Democrat)

The hon. Member for Huntingdon (Mr. Djanogly) has covered some of the ground that I want to cover, including his approbation for the work of my noble Friend Lord Goodhart. My party is absolutely clear: we welcome the Government's change in   position, which incorporates the interests of justice test and the capacity for appeals in the interests of justice. That is absolutely right and a major step forward.

The remaining issue, therefore, is the eligibility test. As the Minister properly points out, it is based on an arithmetical calculation of the means available to the applicant. The applicant no longer faces a steep threshold, as might previously have been the case; instead, there is a taper, so the consequences of being in a marginal position as regards the eligibility test are not as drastic as they once were. However, there are circumstances in which the interpretation of a person's financial and legal status falls outside an administration function. That is the kernel of what was suggested when the amendment was introduced in another place.

The Minister almost gave the game away when I picked her up for saying that these were almost always factual issues. Yes, they are almost always factual issues. I am quite prepared to concede some common ground. Where we are talking simply about arithmetic or adding up, there is no reason why that should not be under administrative review, but I hope that, in return, she will concede that there may be exceptional circumstances in which that is not the case. She says that such cases can be dealt with by judicial review, but that is too cumbersome a process and would not properly address the rights of the individual in those circumstances. I accept that it would be sufficient to pass the article 6 test, as Baroness Ashton of Upholland said in another place, but in the wider interests of justice for an individual caught up in the court process in this country, it would not pass what should be our test of whether such a person is properly catered for.

Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)

In practice, the Minister's review said that the process is extremely cumbersome and expensive. It is unlikely that the average individual will be able to afford it in the first place.

David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton & Frome, Liberal Democrat)

Precisely; this really is a Catch–22: one cannot afford to go to court because one has not been given legal aid, one objects to the decision to refuse legal aid and is told that the way to do that is to go to court—to buy oneself a lawyer. It is absurd to think that that would give individuals the opportunity to get what they need in those circumstances. I resist the Minister's argument that the Lords amendment needs to be defeated and should be expunged from the Bill.

In the spirit of the new year, I offer an olive branch, as I think that there is a way around this impasse. It would be perfectly proper for us to construct an alternative mechanism. Perhaps we can apply our minds to that before Report, if the Minister has her way, which I sincerely hope that she does not. We could devise a mechanism that allows someone who fails the eligibility test to appeal on the ground of the interests of justice when the case concerns a matter of law or the way in which the eligibility rules were interpreted, as opposed to whether the person has the means. That would prevent abuse of the system, through multiple appeals, about which the Minister is worried, and would apply a mechanism for avoiding the disturbing consequences for individuals who are   refused on the basis of eligibility when they do not have the funds to mount a proper defence to the charges on which they are indicted. That is my olive branch. It is worth applying our minds to whether there is an alternative way of achieving the same result, because we are not as far apart as we might pretend to be on this issue.

In the absence of such an agreement, I maintain that there is a need for the amendment made in the other place and that the Minister is quite wrong to seek to remove it when she has no alternative and given that the consequences might be disastrous for access to justice within the judicial system of some people, albeit a small number.

Jeremy Wright (Rugby & Kenilworth, Conservative)

I, too, declare an interest as a non-practising barrister.

I want to put one, straightforward point to the Minister. A great deal of what has been said by my hon. Friend the Member for Huntingdon and, indeed, the hon. Member for Somerton and Frome, is extremely important to the amendment, which I, too, oppose, but the fundamental question that the Government must answer is what harm would be done if the amendment put by noble Friends and others in the other place were to remain. It seems to be commonly believed that the courts would deal with relatively few cases under the eligibility criteria.

The courts appear to be well used to dealing with unmeritorious appeals; they deal with such appeals in many other areas and do so very effectively. It would not delay the process of justice substantially, if at all, if the courts were presented with appeals without merit under the eligibility criteria.

If I am right that Ministers have formally argued that what we discussing is a simple and straightforward arithmetical exercise, which they certainly argued on Second Reading, surely the courts can also do it straightforwardly, which would not delay things at all. If that is right, no harm would be done by retaining the amendment made in the other place, but considerable harm could be done by removing it.

Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)

I shall discuss the ''almost entirely'' comment first, and will then deal with some of the other points made, particularly that made by the hon. Member for Huntingdon about the Law Society's position.

Occasionally, the question is not how much money a person has but whether that money actually counts. I believe that the hon. Member for Somerset and Frome is really referring to marginal cases that involve estrangement, or difficulty in assessing who owns what and whether one would take into account the funds of a non-cohabiting spouse. There are established ways to deal with such cases, but some issues may occasionally have to be decided judicially, hence judicial review. Indeed, that is exactly what judicial review is for; it reviews administrative decisions. I cannot see why an intermediate appeal system needs to be put in place to allow that to happen.  

David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton & Frome, Liberal Democrat)

I am most grateful to the Minister, whom I will eventually train to say my constituency correctly. It is, in fact, Somerton and Frome, not Somerset and Frome.

I accept that what she has identified is one of the functions of judicial review, but surely it is cheaper, faster and better to put such matters into an appeal before the court, rather than to enter into a new and separate process through judicial review. If it is accepted that that will have to be done at some stage, we should surely, in the interests of justice, use the mechanism that the Bill provides to do the same thing in relation to eligibility.

Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)

I apologise for mispronouncing the hon. Gentleman's constituency, a mistake made worse by the fact that I went through it at Christmas and thought very fondly of him as I did so. The Celts among us must learn this language for ourselves.

There must be a sensible balance in the use of court time, a point that refers to some extent to the one made by the hon. Member for Rugby and Kenilworth (Jeremy Wright), which is much easier to pronounce. We all agree that the vast majority of cases will be factual and fairly straightforward, and I accept that the alternative of judicial review is somewhat cumbersome in comparison, but we must balance the possibility of using a slightly more cumbersome method in very rare cases with the possibility of the pretty regular time wasting of factual appeals being brought before the courts. In the end, that would diminish the service of the courts for the vast majority of users in favour of a small minority. I should also point out that the courts may well already have dealt with such cases, but the fact that they have had to deal with administrative matters in the past is not necessarily a good reason for adding to what they do. Courts should really be about the judicial process, and they should make judicial, not administrative decisions.

Jeremy Wright (Rugby & Kenilworth, Conservative)

The Minister will know that a method that courts tend to use to discourage frivolous appeals such as those that she has described is the costs mechanism. Has she considered the implications of allowing the courts to impose costs on those who bring frivolous appeals of the kind that we are considering?

Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)

I have not considered that in any detail; we have been talking about sensible balance, and I am happy to consider that it might be worth some attention. That brings me back to the point made by the Liberal Democrats: if there is a possibility of some form of compromise, I am happy to think about it. It may be possible later to table amendments for discussion.

Perhaps I should provide the Committee with some reassurance about people who might fall outwith the means test eligibility criteria. That is why we are providing for hardship cases. If the Legal Services Commission does not agree with the applicant on the matter of hardship, judicial review will be available, but we have made specific arrangements for those very unusual cases. The example that I gave on Second Reading was of someone who would fall outside the   eligibility criteria in straight financial terms, but who, because they perhaps looked after a very disabled child or had other, extra costs that would not apply to most other people, could argue a hardship case. The LSC could consider the matter on that basis.

I think that all members of the Committee have received the Law Society briefing. First, there are two limbs to the proposed scheme. One is whether the applicant is eligible for state-funded representation. The other is whether it is in the interest of justice that a right of representation should be granted. I fear that the Law Society has confused those a little. The first limb is a purely factual test, which is best carried out by the qualified court staff who carry out the tests today, not the magistrates. We have had discussions about that with the magistrates too, and they are content with what we propose.

At the moment, we propose to allow a review of the means test on one of two grounds: a material change in the defendant's circumstances or a suspected miscalculation. It seems that the Law Society believes that there are likely to be many other circumstances in which a client is unable to pay for representation. I cannot see what other such circumstances would not already be covered by the regulation that provides for exceptional funding on the grounds of hardship.

It is incorrect to say that we have said we consider the internal review mechanism to be appropriate only in unusual circumstances, and that we do not expect it to be used widely. The phrase ''unusual circumstances'' appears in the supplement to the framework document in relation only to hardship provision, not the internal review mechanism. The Law Society appears to have confused the two. The hardship provision recognises that an applicant in unusual circumstances may fail the means test yet be genuinely unable to pay for a defence. It allows such applicants to apply for their circumstances to be given special consideration.

The Law Society is also concerned that the criteria on which exceptional funding on the grounds of hardship would be granted will be restricted to particularly high outgoings and unusually expensive cases. However, the supplement to the framework document makes it clear that these are only two of the possible criteria, and that further ones will be included in regulations.

The Law Society has again raised the issue of unusually high housing costs. I want to make it clear that actual housing costs will be deducted from the applicant's income when a decision is made on whether that applicant passes the means test, so unusually high housing costs will automatically be taken into account.

I hope that that answers the issues raised by hon. Members. I believe that the amendment is sensible and gives the balance that the Government think appropriate for an essentially administrative function.

Question put, That the amendment be made:— 

The Committee divided: Ayes 8, Noes 5.

Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)

I beg to move amendment No. 4, in clause 1, page 2, line 33, at end add—

'(11) Notwithstanding powers conferred on the Legal Service Commission by this section, the Court will have a residual power to grant a representation order upon oral application to the Court.'.

Now that Government amendment No. 1 has been passed, the amendment is somewhat more important. Two points must be stressed, one of principle and one of practice.

By inserting this amendment, the principle of judicial determination would be given a residual platform rather than conferred exclusively upon the Legal Services Commission. Through the determined efforts of our noble Friends, the Bill provided for an appeal process that in some part satisfied the Human Rights Act 1998. The residual power for the courts to grant a representation order upon oral application would further safeguard compliance with the European convention.

As a practical point, practitioners need the opportunity to apply in court orally for a grant of representation—for example, where a matter is urgent. That is in the interests of the court in avoiding unnecessary delays in the administrative process. Other practitioners have agreed that the idea is sensible in allowing administrative matters to be dealt with expeditiously, given that case management is critical in making the legal aid process more efficient, which is the ultimate intention of the Bill.

We discussed administrative speed in the last debate, and I shall not repeat that discussion. The point is that exceptional circumstances may arise where it would be in the interests of justice to enable the court to grant legal aid on oral application, rather than by the written court staff route.

David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton & Frome, Liberal Democrat)

I support the views of the hon. Member for Huntingdon. I can foresee situations in which the circumstances of the defendant may change or a matter may arise during court proceedings that necessitates representation in the interests of justice, or where the court is not satisfied that the defendant is able to represent himself or herself adequately to allow justice to be done. It would seem absurd for that matter to be referred back to the Legal Services Commission rather than dealt with expeditiously by the court itself. The residual power therefore seems appropriate. It would be used only in exceptional circumstances, but nevertheless it would prevent unnecessary delay and improve the efficiency and expedition of court proceedings.  

Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)

Unfortunately, I feel unable to accept the amendment because of the Bill's two key objectives: to transfer the power to grant representation from the courts to the Legal Services Commission and to introduce a compulsory means test element that must be satisfied before any grant of legal aid can be made.

The transfer of the power from the courts to the LSC will help to achieve greater consistency in granting representation as well as ensure that the commission achieves greater control over criminal legal aid expenditure. If the amendment were passed and the courts given a residual power to grant representation, we would threaten to undermine those objectives. A residual power might even be open to abuse by applicants who want to circumvent the means test. For example, a defendant might calculate that he is better off deferring an application for representation until he has been before the court. At that late stage, he might consider that the court would be reluctant to delay proceedings by ordering a means assessment to be carried out, even though in practice it might take only a few minutes. I think that the amendment would undermine the very point that the Government made in our earlier amendment.

David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton & Frome, Liberal Democrat)

It would be a pretty naive judge and court that could not see through such a transparent device.

Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)

We would like to think that that would be the case, but anecdotal evidence suggests that it is not always so and that it is quite possible for a court under pressure to move a case on to feel that it would be prepared to grant legal aid in order to ensure that a person was properly represented.

That leads me to another reason why I feel obliged to resist the amendment. Handing decision making to the LSC will ensure consistency across the country, and it will also enable us to record that consistency and ensure that we have evidence of the way the system is working. I feel unable to support the amendment, and I ask the Committee to resist it.

Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)

I do not think that for practical purposes we are talking about circumvention, which is what the Minister suggested. I was suggesting a practical application of the rules in real-life situations—matters can just happen. The amendment would make it easier for trials to proceed without delay, but in the context of what she said and the passing of Government amendment No. 1, we will have to take another look at the issue and come back to it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, ordered to stand part of the Bill.