Clause 2 - Rights to representation: financial eligibility
Criminal Defence Service Bill [Lords]
11:15 am
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
I beg to move Government amendment No. 2, in clause 2, page 3, line 16, at end insert—
'(ba) provision for the review of such decisions;'.
We are proceeding swiftly, and I can be briefer still because this amendment goes hand in hand with our previous one. It sits entirely logically with Government amendment No. which retains the power in paragraph 4 of schedule 3 of the Access to Justice Act 1999, because both amendments concern the appeals review mechanism.
I have outlined in detail why the Government seek to introduce the amendments, and I do not propose to go over that ground again. As I stressed, our firm position is that where a defendant alleges miscalculation or error in the administration of the means test, a review of the application and not a full judicial appeal is the appropriate mechanism. In that respect, the amendment seeks simply to restore our original stated policy. I commend it to the Committee.
Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)
Likewise, the Conservatives have set out our position in respect of Government amendment No. 1. To the extent that the amendments are tied together, I do not intend to pursue that position further at this stage.
David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton and Frome, Liberal Democrat)
The Minister knows what the Liberal Democrats think of the provision: we do not think that it is the right way forward. However, it would be perverse to argue against the amendment, because in its absence there would be no review. Administrative review is better than no review at all, so she must have the amendment.
Amendment agreed to.
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. 5, in clause 2, page 3, line 24, leave out 'may' and insert 'shall'.
We think it important to have an overriding interests of justice test, as agreed by our noble Friends in the other place, to ensure that no one is excluded from legal aid when the interests of justice require that they receive it. The interests of justice test is a requirement of article 6 of the European convention on human rights, which states:
''Everyone charged with a criminal offence''
has the right,
''if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require''.
When a person does not satisfy the means test, it is difficult to see that the interests of justice would require him to receive legal aid, but it is easy to see that a rigid means test such as the one presupposed by the Government could deny legal aid when the interests of justice require that it be given. We should be interested to hear the Government's opinion on whether, in order to comply with article 6, it is necessary to amend the Bill to ensure that we deal with regulations not allowing for an override of the eligibility limits where the interests of justice require it, which may be defective and invalid. Any override must be provided for in the Bill and not merely possible through an interpretation of the Act that the Bill will become.
As the noble Lord Goodhart stated:
''Circumstances will vary widely and there is a real possibility that people who on the face of it have quite substantial incomes but who also have considerable outgoings, not all of which are recognised by the regulations, would in practice be unable to obtain legal aid when they could not afford to pay for representation out of their own income.''—[Official Report, House of Lords 28 June 2005; Vol. 673, c. GC14.]
On that basis, the relevant provision in clause 2 should therefore state that regulations ''shall'' and not ''may''
''prescribe circumstances in which the grant of a right to representation shall be taken to be in the interests of justice''.
We feel that the issue is important, and we should be grateful for the Government's comments.
David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton and Frome, Liberal Democrat)
I seem to spend a large part of my life debating amendments replacing the word ''may'' with the word ''shall'' or ''shall'' with ''may.'' It is a hardy perennial.
I shall be satisfied if the Minister makes it clear that it is the Government's intention to introduce regulations in the form implied by the Bill. I think that that is their intention, and it is consonant with what she said earlier. This might be the appropriate moment to address the compromise that I suggested earlier. If those regulations were also to prescribe circumstances of genuine disagreement over the eligibility terms of a particular financial arrangement either in law or in determining the ownership of assets, and if the matter could properly be considered under those regulations, I think that that would deal with our grave concern about the amendment passed earlier by the Committee. I therefore ask the Minister carefully to consider that proposition.
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
First, may I say to the hon. Member for Somerset and Frome—
David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton and Frome, Liberal Democrat)
Somerton.
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
Somerton and Frome; I am sorry. I will certainly consider whether what the hon. Gentleman suggests is the appropriate way to make that kind of compromise, if compromise is possible.
If amendment No. 5 were accepted, Ministers would be required to impose on the courts a list of circumstances in which the interests of justice test would automatically be passed. I am surprised that the Opposition want to give that kind of power to Ministers, because in general they prefer Ministers to have less power rather than having more conferred upon us.
The point of the interests of justice test is that it should be flexible, so that it can be applied in all cases. Courts are used to applying the test. In practice, they use a commonly understood set of criteria, which seems to be working reasonably well and we do not feel any need to change that. The idea that Ministers should legislate to constrain the court's power to determine whether the interests of justice test is met does not sit easily with the way in which we want the Bill to proceed. The courts have a long history of applying the interests of justice test; they do it pretty well by all accounts and I see no reason why Ministers should intervene.
For example, we could prescribe certain cases, such as murder. However, it is so obvious that the courts would see that that would automatically satisfy an interests of justice test that it is difficult to see what benefit our doing so would bring. I therefore ask the hon. Member for Huntingdon to withdraw the amendment on the basis that it is not necessary in the present circumstances.
Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)
On the basis of the Minister's representations of her views on the interests of justice tests, I do not currently wish to pursue the point further, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)
One of the principal motivations behind the Bill concerned the rising cost of criminal legal aid and the funding crisis that has engulfed the criminal defence service. One reason for that has been high-cost cases, and another bad case management. As a probing amendment, we tabled a new clause that would have limited the amount of money to be spent on high-cost cases, to ensure better and more efficient case management of all cases, particularly so-called high-cost cases. I appreciate that that new clause was not selected, for all the best reasons, I am sure.
We appreciate what the Law Society said in its parliamentary briefing on its opposition to limiting defence costs, noting that if that were considered, prosecution costs should likewise be limited in order to preserve parity. However, we contend that the extremes of bureaucracy involved in the legal aid process must continue to be broken down. Where savings measures are introduced, the savings should be real. It seems to us that the Government give in to the ever-present pressure to come up with short-term reforms designed to control the budget, when what it needed is a longer-term strategy. In addition, something should be done immediately to reduce the amount spent on high-cost cases.
The following figures represent the crux of the problem that the Government are simply not addressing. The cost of the half dozen most expensive criminal legal aid cases in 2003 was no less than 25 per cent. of the total criminal legal aid budget. As my noble friend Lord Kingsland said in relation to means testing:
''I hazard that however much money it will save, it will save nothing like the amount of money that high cost cases cost the criminal legal aid system.''—[Official Report, House of Lords 13 June 2005; Vol. 672, c. 1083.]
We recognise that legal aid costs in general have increased. However, the budgets of the lower courts are generally under control. Should not, therefore, the true target for cost cutting be high-cost cases? Why do the Government refuse to address the issue, when those cases are clearly such a drain on the resources of the Criminal Defence Service? Without suitable contemplation of the figures relating to high-cost cases, the Bill cannot be the success that it deserves to be.
The problem is not that the Government are spending too little, but that cases need to be managed more efficiently. We need clarity about what legal aid is spent on. To manage cases more efficiently, the Crown Prosecution Service and the judges need to deal with management issues at an early stage in order to avoid bigger problems and spiralling costs later. However, the Government seem unable to get to grips with the problem, and we believe that that constitutes a significant failure on the part of the Department for Constitutional Affairs. It must recognise that the reintroduction of means testing will not, in itself, solve the problem or make significant savings in relative terms.
There is also concern in relation to the perverse incentive in cases that might be tried either way for defendants to choose the Crown Court route, which might put them in a more favourable position with regard to legal aid. As that would serve only to increase costs, we believe that it needs to be reviewed further. We continue to have concerns about a Bill that seeks to translate the magistrates court regime in some modified form to Crown Court simply by way of delegated legislation, as is loosely set out in the supplement to the framework document. Separate regimes for the magistrates courts and the Crown Courts should be introduced simultaneously through primary legislation in order to avoid both uncertainty in the drafting of regulations and the perverse incentive that I have just mentioned. That outweighs the benefit of first appraising the magistrates scheme and then implementing a phased roll-out of the Crown Court scheme outlined in the supplement to the framework document.
We have noted the Law Society's views in that respect, but we should like to probe the Government on the matter. The regulations for the Crown Court system have yet not been presented in full and, given our concerns, we feel that it would be appropriate for the Government to provide more than indicative details of the scheme at this stage. For example, is it proposed that the eligibility thresholds for the Crown Court means test be the same as the proposed test for the magistrates court even though there is clearly a discrepancy between the costs of the two types of case? Has there been any assessment of the average cost of a privately funded Crown Court case? That might assist in determining the means test for Crown Court cases. What assessments have the Government made of the likely increase in the number of unrepresented defendants, of the costs to the police, prosecution and courts of dealing with that, and of the impact on victims who are cross-examined by the defendants in person? The Government will no doubt argue that all those matters are being examined by Lord Carter's review of legal aid and that we should await the outcome of that. We disagree. The Carter review, valuable as its conclusions are sure to be, should not preclude action in certain areas now.
It is evident that there needs to be far greater emphasis on reducing expenditure in high-cost cases, and it is obvious that we need to pursue initiatives aimed at achieving better value for money across the criminal justice system, such as more effective trial management. Irrespective of Carter, the Government should aim to make urgent progress in those areas—they are important matters for the opposition parties. The Bill must signify only the very beginning of the reform of our legal aid system, which this Government have neglected to the point of crisis.
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
Let me respond first on Crown Court cases. Eligibility is not about excluding people from legal aid; it is about bringing people into a contribution regime.
Secondly, the hon. Gentleman makes a great deal of high-cost cases, but let me assure him that no one is more aware of high costs than we in the Department. That is why we have taken action to deal with high-cost cases before Lord Carter's review and we shall continue to make savings. We have also taken action to ensure the proper management of cases in the courts, and the judiciary has been very positive and keen to be involved in ensuring that we have much better case management than in the past.
Something is being done, and the high-cost case contract unit of the Legal Services Commission is proving quite successful at controlling costs. It is making savings of about £35 million—that represents about 10 per cent. of cases—which is not an insignificant sum. I therefore agree with the hon. Gentleman in principle about taking control of high-cost cases but would have appreciated it if he had recognised that the Department has already set in train several ways of dealing with the issue.
The hon. Gentleman also says that we should not wait for Lord Carter, but Lord Carter will publish his review within weeks. The idea that we should suddenly do something two or possibly three weeks before Lord Carter publishes the review that we asked him to undertake is, quite frankly, daft. It would send nothing like the right messages to the judiciary, the legal profession or anyone else, particularly Lord Carter.
Derek Conway (Old Bexley and Sidcup, Conservative)
Order. I notice that the hon. Member for Huntingdon is about to intervene. Before he does so, I should say that I have allowed the debate to go reasonably wide because our proceedings have been well tempered and are not destined to be overlong. As the hon. Gentleman knows, however, there are very good reasons why new clause 1 was not selected, and although I have allowed the Minister to respond in kind, it would be wrong for the debate to stray much further beyond the scope of clause 2. I am not sure what the hon. Gentleman intends to say, but I am sure that he will not tempt the Minister to go beyond the scope of the clause; indeed, I would not allow him to.
Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)
Thank you, Mr. Conway, and I appreciate the leeway that you have allowed us. This is an important and, I believe, relevant issue. If it is daft not to wait for Lord Carter, why is the Committee being held today, rather than in three weeks' time?
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
I am quite pleased that it is being held now. The Bill was actually meant to have been taken before the general election, but it fell by the wayside. Indeed, let me say in passing—I shall move on very swiftly, Mr. Conway—that we have benefited from the fact that it fell by the wayside, because the Bill before us is a much improved version of the one that was available before.
I should also correct something that I said—just to make things absolutely clear. The £35 million savings are savings from the Bill and are quite separate from savings that are already being made under the high-cost case scheme.
On clause 2, it is essential for rights to representation to be granted only where the individual satisfies financial eligibility criteria—that is the other key feature of the Bill, as opposed to the one that we discussed under clause 1. Clause 2 is required to ensure that tax-funded legal aid is restricted to those who genuinely need it and is essential to prevent criminal legal aid from being available to defendants who do not require it.
Mr. Heath rose—
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
I knew that that would inspire an intervention from the hon. Gentleman.
David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton and Frome, Liberal Democrat)
I do not want to delay the Minister, but she should be very cautious about saying that something is essential when, only a few years ago, it was essential that quite the reverse should apply.
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
It is important that I address that. As I said in response to an intervention on that point on Second Reading, the Government did away with all criteria for legal aid about five years ago and made legal aid available to everyone in criminal cases. It must be said that we were not aware of how legal aid would be taken up. We have reviewed the matter and have listened to what people had to say. Clearly, it is right to reflect on what has happened and to decide that some form of means-testing is appropriate.
I have no problem with saying that we considered the matter and that abolishing the criteria did not turn out as we wanted it to, so we have advanced this proposal because we believe that it is a better way to deal with things. I have no problem with having thought about it, listening to what people have said and accepting change where change is necessary.
Many hon. Members have written to me about the case of the footballer El-Hadji Diouf, who was on loan from Liverpool to Bolton. I am reluctant to go too far into the football situation, because I know that my hon. Friend the Member for Ealing, North (Stephen Pound) will want to mention Fulham at some point.
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
Not at this point.
El-Hadji Diouf was on loan from Liverpool to Bolton when he spat in the face of his opponent, Arjan de Zeeuw. I can pronounce those names more easily that I can the constituency of the hon. Member for Somerton and Frome, but I am getting there. El-Hadji Diouf was fined two weeks' wages—a total of £80,000, as he was paid £40,000 a week—yet he was eligible for legal aid. That upset a great many people who would not be eligible for legal aid in civil cases. That example illustrates why the Bill is so timely.
Under clause 2, means information will be collected from defendants at the earliest opportunity after they enter the criminal justice system on a consolidated application form covering both the early advice and assistance scheme and the granting of representation. In response to comments made on Second Reading, I want to make it clear that the information should be collected when the defendant is charged, as that is the most appropriate time to collect it.
A number of limited eligibility allowances will be introduced to ensure that the scheme is fair and sensitive to individual circumstances and reflects capacity to pay. Defendants will be able to apply for legal aid under an extended advice and assistance scheme up to and including the first hearing, when a means-tested representation order comes into force. Eligibility for the extended advice and assistance scheme will be determined on merit alone, and applicants will not be tested for means at that point.
Question put and agreed to.
Clause 2, as amended, ordered to stand part of the Bill.