Clause 1 - Grant of rights to representation
Criminal Defence Service Bill [Lords]
10:30 am
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.