'(1) Notwithstanding powers conferred on the Legal Services Commission by section 1, the Court shall retain the power to grant a representation order upon oral application to the Court under circumstances in which it would not be practicable to refer the matter to the Commission.
(2) Paragraph 3B of Schedule 3 to the Access to Justice Act 1999 (c. 22) (financial eligibility) applies to the power in subsection (1) as if it were a power under that Schedule.'. —[Mr. Burrowes.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
I am grateful for the opportunity to present the new clause, having heard the earlier debate on the programme motion in which my right hon. Friend Mr. Forth put properly in context what are important measures in the Bill. The new clause is of great importance in terms both of principle and practice. It is its importance in terms of practice that I wish to concentrate on in the next few minutes.
The context is important. The Government announced their intentions in respect of improving the criminal justice system and legal aid by titling their documentation, "Delivering a fairer deal: swifter and more effective criminal justice". I am sure all hon. Members would sign up to such a laudable aim. Indeed, the new clause seeks to achieve in practice a swifter, more effective criminal justice system. At this stage I must declare an interest as a criminal solicitor of 11 years, a criminal advocate and consultant at a local firm in Enfield.
When one tries to put the legislation that is passed with great intentions by the House into practice in court, there is often a gap. It is that gap that I seek to plug today with the assistance of the House. I seek to avoid the vacuum that we can sometimes fall into when debating criminal legal aid and to look at the reality of the situation.
The new clause properly reflects the need for means-testing and the financial requirements that are the essence of the Bill. It recognises the concerns of the Government in relation to consistency in granting representation orders. It also properly seeks to deal with concerns that have been raised by practitioners local to me and by a chief clerk of a local magistrates court about issues that have arisen as a result of the Bill: primarily, the fact that it would effectively prevent an oral application from being made to the court. An important principle has been put forward by the Government in the Bill: to confer powers on the Legal Services Commission that are presently before the court. While the Government would no doubt say that those powers are being devolved back to court staff and that, for all intents and purposes, in practice, the court staff who grant legal aid on administrative applications now will do the same after the Bill becomes law, there is still the prospect of that being removed from court staff. Even if it is devolved to court staff, as is proposed, within regulations, there is a fundamental gap in terms of preventing an oral application from being made to the court.
It is important to look at the practical context. On the nature of the court process, a magistrates court hearing is not always as we would imagine. There is often a full court list as a result of perhaps operations that have taken place in the locality involving a number of members of the public being arrested for particular practices. It may involve a number of people who have been arrested and need interpretation skills. It may involve a number of people who are in the cells and who need other assistance. They may often be vulnerable. They may be mentally ill and need other assistance. They may require assistance and legal advice from an early stage.
A magistrates court may have occasional court sittings on a Saturday or at holiday times. Those often involve just one magistrate and one court clerk dealing with what can be a very busy list. They have to deal with what we are discussing today, which is a fundamental change in relation to the process of criminal legal aid.
We also have to be aware of the context in relation to the applicant. The applicant is not the straightforward applicant one can describe. The applicant could be illiterate, have learning difficulties, be unable to read or write. There are occasions when the applicant is mute and one has to deal with that situation. In all those circumstances, the option is available to the court to allow the matter to come before the court by way of an oral application, rather than through the administrative route of filling out a legal aid application. That option would not be available if we do not accept the new clause.
I want to look at the example of someone who is mentally ill. It is the case that, increasingly, sadly, many people come before the courts who suffer from mental illness. The provision for them is often patchy and inappropriate. Often, a mentally ill person comes before the court without having any legal representation, despite the fact that under the Police and Criminal Evidence Act 1984 there is the right to have an appropriate adult to direct them to the need for legal advice. For one reason or another, they come before the court having been charged with an offence, they are before the magistrates and they need legal representation. The magistrates can see it clearly; indeed they can probably see on the basis of the charge that it is in the interests of justice that they receive legal aid.
Having sat on the bench for a good number of years, I recognise some of the circumstances to which the hon. Gentleman refers, but can the new clause be used in cases, for example, of fraud, where the person being charged is not in the category concerned? Although prosecuting fraud can never be justified in purely financial terms, there has been at least one significant case that involved fraudulent legal aid claims by a firm of solicitors, which cost the legal aid fund £10 million. That same fund, when that firm was prosecuted, incurred costs of £34 million in defence costs and £10 million in administration—£44 million in total. Would that be covered by the weakening that he describes in respect of new clause 1?
The purpose of the new clause is perhaps not so much to deal with that circumstance. No doubt any first application in relation to someone who is charged with fraud would involve filling out the financial eligibility form, which would be complicated and require the administrative route that is followed in the Bill. The point of the new clause is to deal with those exceptional circumstances that I described: primarily, those applicants who have great difficulty following through with a written application, who have come before the court without any legal representation and whose need is great. That is particularly the case with those who are vulnerable or mentally ill, where there is a great urgency to deal with the matter as quickly, as expeditiously and as fairly as possible.
A statutory framework of regulations will seek to go into detail in relation, for example, to people who originally fail the means test but who, it is recognised, suffer hardship and are unable to afford legal representation. That framework is, I understand, to be published after the Bill becomes law. It would no doubt also involve definitions in relation to practicability.
The issue is that the Bill would without exception confer all the powers upon the Legal Services Commission that at present are devolved to court staff. The new clause seeks to give flexibility in the exceptional circumstances that I described. The term "when it is not practicable" can be judged properly; it is used in other legislation. The clerk can advise the magistrates on whether that is the situation. Plainly, if it is practical for the normal route to be followed—the administrative route of devolved powers to court staff—that can be followed. No doubt the advice can be taken from the clerk. However, there are the exceptional circumstances that I have sought to outline. As is the case presently, some of those who come before the bench will need a decision to be made on the basis of an oral application. The new clause seeks to be constructive. It would give effect to what is in place now and give the option. Perhaps it will be used rarely, although I hear from local magistrates that oral applications increasingly need to be made to deal with the position of the applicant.
The need is perhaps greater now than before the Bill was mooted. Now there will be a financial requirement upon the applicant. If the client is mentally ill or mute, as one of my cases was, and comes before the court without legal representation, the magistrates will realise that there is a need for representation and to determine the issue of legal aid expeditiously. The applicant then needs a solicitor to go through the process of applying for legal aid.
Without the new clause, the solicitor would need to consider the general criminal contract, whether the client was defined as a patient under that contract and whether an application could be made on behalf of the client. The solicitor would also have to have sufficient knowledge of the client's financial circumstances because now there will be a requirement to complete the financial side of the application. The burden is more onerous properly to complete an application for legal aid. Without the new clause, that will happen by the administrative route of going through the process of completing a form. Indeed, if it was refused, there could be an appeal process, which could be lengthy, delay the process and not be in the interests of either justice or the applicant.
In that exceptional circumstance the new clause would allow the matter to be dealt with there and then within the court building and hearing. It would allow the application to be made to the magistrates who can plainly see that it is in the interests of justice for legal aid to be granted. They can determine also the issue of financial eligibility in court orally to allow the matter to move on expeditiously.
My hon. Friend makes some interesting points based on his experience in the criminal sector. Does he agree that if there is the delay that he is talking about, in terms of properly assessing whether legal aid should be given if we follow the current procedure rather than the oral hearing procedure which he is outlining in his new clause, that could be a burden in terms of not giving proper access to justice and seeing that justice is expeditious, and could increase the potential administration and costs if there are continuing delays in ensuring that a particular case or hearing is dealt with appropriately?
I am grateful to my hon. Friend for that intervention. I agree that the new clause would seek to prevent the potential for increased delays and costs. The new clause seeks to meet the intentions of consultations on criminal legal aid. I seek to plug a gap which will be in the legislation without the new clause.
Why not include the new clause as part of the armoury available to deal properly and expeditiously with legal aid, and allow the justice system to move on without delay? Is the issue primarily about wanting to speed up justice and to make it fairer, or is the Government's prevailing concern to confer all powers on the Legal Services Commission, not the courts, in order to gain control over the budget; rather than the prime motivation being, as it is in the new clause, to deliver effective criminal justice?
I urge the House to support the new clause which not only plugs the gap in the one example that I have given, but also provides a safety net for the system so that we can properly achieve the goals that we all have.
I wish to speak only briefly on the new clause. It is sad that we have lost the eloquent skills of Mr. Forth who argued so strongly earlier for more time to scrutinise the legislation. As soon as the motion was passed, he disappeared from the Chamber.
I pay tribute to Mr. Burrowes for the way in which he moved the new clause. I have sympathy with it, but cannot support it because it does not deal with the fundamental problem of transferring the granting of legal aid from the courts to the Legal Services Commission.
The Under-Secretary of State for Constitutional Affairs, my hon. Friend Bridget Prentice, is doing a splendid job at the Department. I have no problems with her being able to deal with, supervise and monitor the work of the Legal Services Commission, but she is creating a framework which will make it difficult in future for people to challenge decisions made by that commission.
I was pleased when an amendment was passed in the other place to allow for the right of appeal on such cases. It gives people who apply for legal aid the opportunity to have that decision scrutinised by a body other than the Legal Services Commission. The most worrying aspect of some steps that the Government have taken on legal services and the court system is their wish to abolish rights of appeal and place decisions with the very organisations or individuals who are commissioned to make the original decisions. That is wrong.
I thought that the new clause would give us the opportunity to restore that right of appeal, but it deals with applications in the first instance. It deals with those circumstances where for some reason an application cannot be referred to the Legal Services Commission. Therefore, it concedes the point that the first decision should be made by the Legal Services Commission. That worries me because there should be scrutiny and an opportunity for individuals to have their cases assessed by those other than the decision makers. In addition, it puts a great deal of trust and faith in the operation of the Legal Services Commission.
It is clear from all the information that I have from individuals and practitioners who have had to deal with the Legal Services Commission that they are dealing with a highly bureaucratic organisation which seems to compound the delays that already exist in our legal system. Of course in reply the Minister could announce some radical shake-up of the way in which the commission operates to satisfy me and others that her faith in the organisation is justified, but neither that nor the new clause deals with the fundamental principle that others should review the decision.
My hon. Friend David Taylor made an important point. We need to know before the passage of the Bill the circumstances in which the new clause will operate. Where are those exceptions which would take us out of the procedures set down by the Government in the proposed statute and allow an oral application? The hon. Gentleman said that perhaps they could be included in draft regulations or by some other method by which Ministers can supplement legislation. That is a real problem. We need to know that information. Otherwise, people will have a choice and, given the choice, most would choose to make their application to the courts rather than to the Legal Services Commission.
The purpose of the Bill is not just to make the system more efficient, which hopefully it will; it is to save money because of the large increase in the legal aid budget over the last 20 years. I think that it now stands at £1.1 billion. The Bill seeks to save about £35 million. It would not be difficult to devise a scheme—we cannot do so now that we have reached Report stage—that will enable people who feel that they have not been treated fairly and have additional information to put before the bodies to go to another body to put their views forward. The new clause would not allow us to do that. It moves us in the right direction, but it is not quite the strengthening amendment that I wanted to see.
I listened with great care to Keith Vaz and I have a great deal of sympathy with his views. We debated in Committee amendments from another place proposed by my noble Friend Lord Goodhart. Here, I must take care not to pre-empt the debate on the next amendment, which forms its own separate group. I hope that we can reach a satisfactory conclusion on the question of the financial eligibility test. The Minister rejected the amendments from another place because she did not want to allow appeals on the strict matter of financial eligibility. However, on the wider, interest-of-justice test, the capacity does exist for someone to apply to the court, and thereby to short-circuit the legal services review system.
The point made by Mr. Burrowes is a slightly different one. It concerns, in effect, having an appeal of last resort: a court's having the residual power to do that which is sensible and in the interests of justice within the confines of a court, rather than entering into a bureaucratic procedure. Indeed, the same point was made by the hon. Member for Leicester, East. The hon. Member for Enfield, Southgate is building on the amendment tabled by Mr. Djanogly in Committee. We had a short debate on it in Committee and, as I recall, we divided on it and I gave my support to the hon. Gentleman. The Minister had a couple of problems with that amendment, but today's new clause addresses them. She was concerned about consistency, which subsection (2) of the new clause addresses. She was also worried about the provision's scope; however, subsection (1) of the new clause would introduce an element of conditionality.
We are not talking about a great matter of principle, but simply about expediency. The question is, when matters have arisen during a hearing that make it clear to the court that the person in question should be granted representation, how do we deal with that situation without the need to enter into a bureaucratic process involving the Legal Services Commission? Such a process is not in the interests of the court hearing, the expedition of the case or of all the other people involved in the case, let alone the person receiving aid under the court's direction. Under such exceptional circumstances—clearly, they are indeed exceptional—restoring the residual power through the new clause would be of value to the court system. Such restoration should commend itself to the Minister as being entirely consistent with her approach to the legal aid system, and with achieving the result that we all want to achieve: a better, faster, more efficient and more effective court system.
I shall take just a brief moment of the House's time to speak in support of the new clause tabled by my hon. Friend Mr. Burrowes. In essence, this is a matter of justice and of ensuring that those members of our society who are vulnerable and less advantaged are not put at risk by the Bill's overall framework. My hon. Friend's comments about people with mental health problems and the obstacles that might ultimately prevent them from receiving legal aid that they are properly entitled to were particularly germane; indeed, that is a very important issue. I should at this stage declare an interest, in that I am a solicitor. However, I am not a criminal solicitor, so the Bill falls outside my area of practice; even so, it to some extent touches on issues of legality with which I am familiar.
The comments of Keith Vaz about bureaucracy and the Legal Services Commission were also relevant. The Bill attempts to streamline the system and to save the cost to the public purse. But we must also ensure effective access to justice, and if the new clause is not accepted, there could be further delays, leading to further costs. In essence, the question is: what is the sensible approach in such circumstances? We need a safety net that allows applications to the court in exceptional circumstances, as my hon. Friend the Member for Enfield, Southgate made clear. Indeed, his new clause uses the phrase,
"under circumstances in which it would not be practicable to refer the matter to the Commission."
So the new clause makes clear the circumstances in which it would provide a safety net and protection.
The new clause might well need to be supplemented by some form of framework along the lines described by my hon. Friend, but there is much merit in it. It would aid access to justice for all in circumstances where bureaucracy, form-filling and over-regulation might otherwise prevent such access. It has my support and I commend it to the Minister. I look forward to hearing what she has to say about the key issues raised by my hon. Friend: ensuring effective access to justice in a timely manner, and ensuring that people who would otherwise be entitled to legal support from the state are not overlooked.
My hon. Friend Mr. Burrowes is a gentleman with no little experience of the practice of criminal law, and I, too, should at this stage declare my interest as a practising solicitor. This is a practical, administrative Bill, and it is important that the views of people such as my hon. Friend be aired and listened to—hopefully—by the Government. He has made an important contribution to this debate.
We did not do so because I was not happy with the Government's position at that stage, and I wanted to ensure that we revisited this issue on Report. I am very pleased that my hon. Friend has dealt with it so comprehensively and well. Of course, I did indeed propose a similar amendment in Committee, and I still believe that the Bill should incorporate such an amendment in the interest of justice. It is important that, in exceptional circumstances where a defendant is incapable of making a written application, and where the situation is sufficiently urgent, there should be a residual platform enabling an oral application to be made in court. The Government rebutted that point of practicality in Committee, on the basis that granting courts such a power could lead to its being abused by applicants. As has been pointed out, such a power would apply in circumstances that courts would recognise as being exceptional, so such abuse would be obvious to any court. As has also been mentioned, the new clause deals with the problem by referring to issues such as practicability.
The proposed procedure deals with real-life scenarios. It would expedite the court procedure, and it could prevent unnecessary delays in the facilitation of the access to justice that the Bill is trying to entrench.
The support of practitioners in that regard should not be ignored. If my hon. Friend wishes to press the new clause to a Division, I assure him that he will have his colleagues' support.
This Bill has two key objectives—to transfer the power to grant representation from the court 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 grant from the court to the LSC is designed to help achieve greater consistency in the grant of representation, as well as ensuring, as my hon. Friend Keith Vaz noted, that the LSC achieves greater control over criminal legal aid expenditure.
By giving the courts—in other words the bench or the Crown Court judge—a residual power to grant representation, this new clause would threaten to undermine these objectives. It is for that reason that I shall ask the House to resist it, and I shall set out my reasons in some detail.
The new clause would almost certainly generate the potential for more inconsistency, as each bench would be using its own discretion to reach decisions. Such inconsistency might therefore create an inherent unfairness in the system and undermine one of the key precepts of this Bill.
Let me make it clear that the Bill will mean that the bench will have the power, ultimately, to determine whether the interests of justice have been satisfied. But it will not have the power to grant legal aid: that power will remain with the LSC, which will be able to make the grant only if the means test and the interests of justice test have both been satisfied. It is important for the House to understand that both limbs must be satisfied before legal aid is granted.
We do not accept that there should be an exception to the two-limbed test. The interests of justice test determines whether it is desirable that a defendant be represented, and the means test determines who should pay for that representation—the state or the defendant. It is only when financial eligibility has been determined that the question of the interests of justice arises.
New clause 1 proposes that there should be a procedure allowing the bench to grant representation, following an oral application. That procedure is said to be subject to paragraph 3B of schedule 3 to the Access to Justice Act 1999, which reintroduces the means test. That seems rather odd, when the court-based staff would be available to conduct that test.
I am conscious of the argument put forward by the hon. Gentleman, who stressed that practitioners need to be able to apply in court for a grant of representation. He said that that need might arise when dealing with an urgent matter, and that that would work in favour of the court by helping to avoid unnecessary delays in the administrative process.
I emphasise again that the Government are confident that the means test will be sufficiently straightforward for the court-based teams to be able to conduct it swiftly and accurately. Under our system, an electronic database in each court will allow instant access to means information.
The hon. Gentleman was also concerned about first hearings involving defendants who are ill, illiterate or who have mental health problems. James Brokenshire made the same point. However, the early-cover scheme will enable defendants to be represented at the first hearing without legal aid being granted. Solicitors will then be able to help their clients to complete the application form.
The Minister referred to a new electronic system. Will she give us an idea of what that is, and when it will be introduced?
I am no electronics whizz, so I cannot go into much detail. However, work on the programme is already in hand, and I can assure the House that it will be ready in time, if the Bill is passed and implemented. Moreover, plans have been made to train court staff to ensure that they are familiar and comfortable with the new system.
The hon. Member for Hornchurch also said that a matter might arise suddenly before a court and that a person might need to be represented quickly. That might indeed happen, but a determination about who pays would still have to be made. If a late application became a route to free legal aid, I would be concerned that the practice might not remain exceptional for very long.
Where there is a fundamental change on the issue of the interests of justice in relation to a defendant, we anticipate that it will be a relatively speedy process to obtain and process the necessary information on the means test. I do not agree with the hon. Member for Huntingdon that the matter would be dealt with more speedily by a bench or a Crown Court judge. In effect, a bench or a Crown Court judge will have to call an adjournment while determining whether a defendant should be legally represented, and for solicitors and counsel to be appointed and properly instructed. The system proposed in the Bill will take advantage of that inevitable and natural pause to seek the information pertinent to the means test. I see no reason why the need to refer back to the court-based grant teams should cause any significant additional delay in the process.
The hon. Member for Enfield, Southgate also suggested that the new clause would further safeguard compliance with the European convention on human rights. I disagree: article 6(3) of the convention says that a person with insufficient means to pay for legal assistance should be given it free when the interests of justice so require. The Bill complies with that, and we will ensure that the regulations under the Bill do so too.
The House should be aware that article 6(3) also gives the accused a right to defend himself in person.
The hon. Gentleman mentioned human rights in our debate on this matter in Committee. The fact that he did not mention them again today perhaps shows that my response then was more than adequate.
As I was saying, article 6(3) of the ECHR also gives the accused the right to defend himself—even in circumstances where other people might think that he would be better off with legal representation.
There are therefore three possibilities: the state pays for legal representation if the defendant cannot afford it; the person defends himself, or he pays for his legal representation. The first two alternatives are a person's rights: the Bill does not change that position, and the new clause would do nothing to safeguard it.
The House will be aware that the bench will also be allowed to hear appeals against a decision to refuse to grant a defendant a representation order on the grounds that the interests of justice have not been satisfied. Although the bench may substitute its own decision on the interests of justice, as before, the responsibility for granting representation will continue to reside with the grant teams, as they must be satisfied that the defendant is also financially eligible.
I emphasise that the Government are not seeking to deny the right to representation in circumstances in which the interests of justice test are met. However, let me repeat that by reintroducing a means test, the Government are legitimately seeking to determine whether the burden of defence costs should be met by the state or the individual.
We believe that in designing the new system we have struck the right balance in defining the role to be played by the court in that process. Any proposal to arm the bench or a crown court judge with a residual power to grant representation runs counter to the consensus that has been built up in negotiations with our key stakeholders. I therefore call on hon. Members to reject the amendment.
The Minister suggests that the new clause should be rejected because allowing oral applications will perpetuate inconsistency in the grant of legal aid. I suggest that that is away from reality. Almost all applications are by way of a written process already. It is only in exceptional cases such as when a mentally ill client is before the court—I will not repeat the examples—that one wants to have the option that remains in the new clause of allowing an oral application. It is hard to rationalise and find statistics to support the suggestion that oral applications that take place at present in exceptional circumstances create inconsistency in the grant of legal aid. The rationale for refusing, I suggest, is not valid.
The Minister also suggested that ultimately the courts have the discretion to determine the interests of justice test. However, we cannot rest assured with that when the supplement to the framework document contains the threat that if the Legal Services Commission considers on monitoring that there is an inconsistency across the country, as the conclusion says on page 13, the Government
"could choose to have the award of grant, including determination of the interests of justice test, administered solely and directly by the LSC, without the involvement of court staff."
—without the involvement of the computer programme to which the Minister referred to allow proper processing of applications for legal aid. The heart of the concern among practitioners and other members of profession is that the essence of the Bill is a measure to remove all powers from those closest at hand to make the proper decisions. Particularly in exceptional cases, magistrates are in the best position in the court to hear an oral application. On that basis, I invite the House to vote.