Clause 2 — Rights to representation: financial eligibility

Criminal Defence Service Bill [Lords] – in the House of Commons at 3:02 pm on 26th January 2006.

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Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 3:02 pm, 26th January 2006

I beg to move amendment No. 1, in page 3, line 21, at end insert—

'(5) The provision which may be made under sub-paragraph (4)(c) includes provision prescribing circumstances in which the person or body reviewing a decision may refer a question to the High Court for its decision.

(6) Section 16 of the Supreme Court Act 1981 (c. 54) (appeals from the High Court) shall not apply to decisions of the High Court on a reference under regulations under this paragraph.'.

Two improvements were made to the Bill in the other place. One was to extend the appeal in the interests of justice and the second was to introduce the capacity for an appeal on the grounds of financial eligibility. It is the latter to which we now turn. I still prefer the proposals made by Lord Goodhart in the other place and I regret that the Government were not able to accept them. However, in Committee I told the Minister that I was prepared to consider ways in which we could accomplish at least part of our objective by another route that was more acceptable to her and the Department. She was kind enough to suggest that we could have further discussions on that matter, and I pay tribute to her advisers who met with me to consider possible alternatives.

The amendment is a compromise based on those discussions, and that is how Parliament should work. A Minister has a position and Opposition Members have a contrary position, and if it is possible to reach an accommodation—sometimes it is not possible—we should seek to do so, especially if it improves the legislation.

The objections that the Minister raised in Committee were threefold. First, she was concerned that we should not have appeals based simply on the arithmetic of the Legal Services Commission. If financial eligibility is simply a question of adding up the sums and coming to a conclusion, it would be wrong for judicial arbitration to be used to decide whether the sums were done properly. That was, as the Minister put it, an administrative matter and an administrative review was the right way forward.

The second concern was that a right of appeal against the financial eligibility conclusions of the commission might lead to vexatious appeals and, therefore, not only a slowing down of the system, but additional costs, without any gain for the outcome as far as the appellant was concerned. There was an additional and more subtle point that if an appeal against a decision of the Legal Services Commission was made to a magistrates court, the court would hear it on the basis of the advice of the clerk to the justices who had made the original decision. That seemed to be a rather circular process that would not get us much further.

It is my strong view that there are occasions when the determination of a person's financial eligibility can be open to doubt when it is judged against the specific criteria laid down by the Legal Services Commission. The system involves a bureaucratic exercise and when dealing with any set of regulations, as we know, there will be exceptions when people do not fit neatly into arrangements. For example, a person might have a nominal income that could not be used because there was a challenge in law regarding the person's right to that income, or because it was being paid into a bank account in a country to which the person had no access, so the funds could not possibly be used to support the representation. It was my concern all the way through to ensure that in such exceptional circumstances, there could not be simply an iteration of the bureaucratic system of the Legal Services Commission to produce a negative outcome when the interests of the person applying for legal aid would clearly be served by a successful outcome, although that could not be achieved by administrative review.

The Minister said from the start that everything is open to judicial review, which is of course right. It could be argued that judicial review might satisfy the article 6 test, although I am not entirely convinced. However, the problem is that judicial review is expensive and slow. A person in such a position would be in a catch-22 situation of not having the funds to mount a defence case, but needing to find funds to undertake judicial review to unlock funds for that defence case. That would be impossible, so it would be an unsatisfactory position.

The amendment satisfies my basic requirements and I hope that it satisfies those of the Minister, too. We are suggesting that when a question of financial eligibility that falls outside the strict criteria arises—when a doubt arises in law, or because of other circumstances, about whether the financial criteria should apply—there should be a duty on the Legal Services Commission to refer the matter to the High Court for adjudication. Under such circumstances, the High Court could determine the funds that should be properly considered under the criteria of the Legal Services Commission and make an award of representation.

The importance of the process is purely that it is a means for appeal, albeit one that is filtered by the Legal Services Commission. There would be a route for circumventing bureaucracy in the exceptional circumstances that I have predicted. The advantage for applicants would be that they would still have the capacity to obtain judicial review on the decision of the Legal Services Commission. If the commission unreasonably decided not to refer a case to the High Court, that decision could be subject to judicial review.

Amendment No. 1 addresses the exceptional circumstances that were in the mind of my noble Friend Lord Goodhart, although the situation is not as satisfactory as it would have been if his amendment had been acceptable to the Government. I again pay tribute to the Minister and her officials for listening carefully to the points that I have made to allow us to come up with an amendment that should represent an agreed solution. I commend the amendment to the House and hope that it will satisfy those in another place who take an interest in such matters.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I will speak only briefly to welcome the amendment. I think that it is the sensible way forward. I, too, would have preferred a provision to allow the right of appeal. I understand that there will be exceptional circumstances. I very much hope that the Government will accept this sensible amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

It is at this stage that we see the real implications of the programme motion. I want the Minister to have time to reply, so I shall be brief.

As for the amendment, I have a certain feeling of déjà vu. It has been the determination of the Government to eliminate the appeal process, which was astutely introduced by my noble friends and Liberal peers in the other place. Once again, I feel obliged, as was the case with Mr. Heath, to reiterate our belief in the importance of an appeal process forming part of the Bill, and in turn upholding the principle of access to justice. However, in the light of the amendment, it seems that we have a compromise. I welcome that to the extent that a right of appeal is not completely removed from the Bill, as would have been the case otherwise. For that, I am grateful.

I must reiterate the importance of an appeal process rather than simply having a judicial review process that the Government seemed to want to stick by. Our noble friends and Opposition peers in the other place felt it appropriate to allow for an appeal process in relation to the eligibility test reintroduced by the Government. We welcomed that because we believed that it was important that the courts should be able to hear appeals on the interest of justice test as well as on the eligibility test, and that the courts should be able to consider these matters afresh.

We therefore found the Government's decision to overturn the amendment moved in the other place to be irrational and potentially damaging to the Bill, but in essence we give our support. I note that Members from all parties, including Keith Vaz, have come to roughly the same position.

Their noble Lords ultimately understood the complicated nature of an eligibility test that cannot be accurate on every occasion. The Government stated in their supplement to the framework document that there will be regulations for the consideration of cases in which exceptional circumstances require funding for those who do not meet the eligibility criteria, but not by appeal.Page 12 of the supplement states that the test is whether the cases require a fine judgment that warrants the intervention of the courts. Surely exceptional cases meet that test.

The Government seem to resist the Lords contribution on the foundation that it is a waste of court time to have to deal with administrative matters. That they are administrative is quite clear. However, the Government should consider the circumstances recognised by their lordships in the other place whereby a defendant's financial, legal and social means fall not within the realms of administration but within the remit of the administration of justice.

The Government have conceded that there are exceptional circumstances where the eligibility test does not simply apply to factual issues, but say that these can be dealt with simply by judicial review. To our mind, that is misguided. The process of judicial review is too cumbersome suitably to address the rights of those whose plight has been worsened by non-financial issues under the merits test. Judicial review demands a new and separate process that can only prove more costly than referring back to a judge or court that has already dealt with the matter.

Hon. Members may now appreciate that the potential compromise that the amendment presents is not one that we would see as the perfect answer to an issue on which we have argued strongly throughout the passage of the Bill. At the same time, we can accept an amendment that provides a platform for referring the question to a court. With the amendment, we accept that nothing will be lost by the defendant and that in the correct circumstances the correct decision will be reached.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs 3:30 pm, 26th January 2006

I am grateful to Mr. Heath and to those Members who served in Committee, who realise how important it is that I manage to get the hon. Gentleman's constituency correctly pronounced for once. I am grateful to the hon. Gentleman for what he has expressed about officials. I will ensure that they are all aware of his gratitude and positive remarks.

It has always been our firm view that an administrative review was the most appropriate mechanism in the situations under discussion. However, we are sensitive to the concerns raised by the hon. Member for Somerton and Frome and others in Committee and on Report. I accept that there may be a very limited number of cases which are not just about number-crunching, but which may raise points of interpretation of the regulations. That is likely to happen at the beginning of the scheme particularly, and we can then set a precedent for what the scheme is intended to achieve.

Having listened carefully to the arguments presented by the hon. Gentleman and others, we are willing to consider his amendment. The proposal has advantages over both consideration by a magistrates court and reliance solely on judicial review. The amendment does not undermine the broad principle that a challenge to the means test where the applicant alleges an administrative error or miscalculation would be most appropriately provided through the administrative review mechanism. However, I acknowledge that in the rare cases where it is anticipated that a difficult issue such as a point of law may arise, the amendment represents a practical and measured response to the concerns expressed.

The amendment marks a coincidence of desire, so to speak. It offers the sensible balance that we have been aiming for, and I am pleased to urge the House to accept it.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I hugely welcome the Minister's remarks. An outbreak of consensus seems to have spread to all Benches. That is a remarkable occurrence at the end of Report, and in this case it has the merits of improving the Bill and makes the Legal Services Commission work better at administering legal aid than it would otherwise have done. I am grateful to the Minister, her officials and hon. Members in all parts of the Chamber who have supported my amendment.

Amendment agreed to.

Order for Third Reading read.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs 3:32 pm, 26th January 2006

I beg to move, That the Bill be now read the Third time.

The Bill marks a significant stride forward in ensuring that the criminal legal aid system becomes fairer and more effective. It will achieve this by re-introducing an updated and revised means test, as well as transferring responsibility for the grant of criminal legal aid representation from the courts to the Legal Services Commission. The Bill reflects our firm view that those who can afford to pay for their criminal defence costs, not least wealthy Premiership footballers or lottery winners, should be asked to do so.

By targeting resources on those who most need them, we will be able to deliver a sustainable legal aid system that continues to serve the needs of this and future generations. In short, the Bill will help provide for a criminal legal aid scheme that ensures access to justice for all, while giving better value for money to the taxpayer. I am sure all hon. Members will be pleased that their constituents can welcome the Bill knowing that those who earn vast sums of money or gain vast sums by other means will no longer be eligible for legal aid.

I have been encouraged that the key principles that underpin the Bill have broadly met with unanimity from both Houses. I am delighted that on the one issue where debate has been most intense—the policy on reviews in respect of the new means test—we have been able to reach a consensus and a practical solution. I hope that the House of Lords will take the same view. The fact that we have been able to work closely with Mr. Heath demonstrates the constructive spirit in which the House has debated the important issues raised by the Bill. I pay tribute to him and others, including Mr. Djanogly, for their contributions today, in Committee and on Second Reading, which have got the Bill to this stage.

I also take the opportunity to thank all hon. Members who served on the Committee and my hon. Friends in the Whips Office, particularly my hon. Friend Kevin Brennan, for ensuring that we have had an informative, albeit concise, debate.

May I express through you, Mr. Deputy Speaker, my apologies to my hon. Friend Mr. Pope, who was one of the Chairmen of the Committee, but who, unfortunately, owing to the precise and concise way in which we dealt with matters, was unable to chair part of our proceedings. I thank, too, everyone on both sides of the House who has participated today and throughout our proceedings for ensuring that we pass a Bill that will stand us in good stead for the future.

Finally, I thank the officials in my Department for the excellent work that they have done, not just on my behalf but on behalf of everyone in the House in ensuring that we have a Criminal Defence Service Bill which will last long into the future. I commend the Bill to the House.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 3:36 pm, 26th January 2006

I join the Minister in thanking all those Members on both sides of the House who have been involved with the Bill. I thank the Minister and her officials generally for being constructive and prepared to consult, and I thank Mr. Heath for his important contribution to the Bill's progress. I pay tribute to my hon. Friends the Members for Rugby and Kenilworth (Jeremy Wright) and for Enfield, Southgate (Mr. Burrowes), who provided me with valuable assistance in Committee and today, and to my hon. Friend Angela Watkinson, who has worked hard on the Bill. I also pay tribute to those in the other place who so ably assisted in allowing this worthwhile Bill to come this far.

The Bill has been a work in progress, and a significant part of that was achieved by their lordships. We remain supportive of the principle that those who can afford to pay for their defence should do so as a necessary prerequisite to a fair, effective justice system that gives taxpayers value for their money.

The Bill was subject to a number of amendments in Committee and on Report, some of which were non-contentious Government amendments, but many others were tabled in an attempt to forge an effective piece of legislation, which is essential in stabilising the current failing legal aid system. Much good work has been achieved. For example, significant progress has been made on producing a thorough and comprehensive set of regulations that set out the detailed calculations necessary to assess whether individuals will be entitled to relief.

Issues raised in debates in both Houses that have been addressed in the supplement and by amendments to the Bill include: that the interests of justice test should be a judicial rather than an administrative decision; that it should be possible for an applicant to be granted legal aid when the interests of justice clearly require it, even if the applicant has failed the means test; that some contribution should be made, by those who qualify for representation and are capable of making it, to costs in the magistrates court; and that responsibility for legal aid matters be restored to the Lord Chancellor's Office. We have supported or proposed those changes.

Throughout the passage of the Bill, one issue, appeals, has persisted despite what has been achieved. Under the scheme originally envisaged, the court could consider an appeal as if it were merely hearing a judicial review rather than making the decision itself. Following strong arguments against that on Second Reading and in Committee in the House of Lords, the Government updated the supplementary framework document published in October 2005, which sets out the details of the regulations that the Secretary of State proposes to make under the Bill. That now makes it clear that the court will be able to hear appeals in the interests of justice, with its own decision replacing that of the Legal Services Commission. That would, however, have applied only to appeals on the misapplication of the interests of justice test. Therefore, under the leadership of our noble Friend Lord Kingsland and Liberal peer Lord Goodhart, an amendment to extend appeals to the eligibility test as well as the interests of justice test was passed on Report.

The amendment tabled by Lord Goodhart and Lord Kingsland appeared to remove the thorn in the side of the Bill, for which we were grateful at the time. However, it was a shame that, in Committee in this House, amendment No. 1 overturned that amendment. We strongly opposed that, and the eligibility test became the remaining issue. It is unsatisfactory that those who are unable to afford to go to court because they have been denied legal aid can seek redress only through an expensive and cumbersome review. In Committee, I tabled an amendment to give the courts a residual power to grant a representation order upon oral application to the court. We thought that that would prevent unnecessary delay in court proceedings in exceptional circumstances. That move would have been all the more important in the context of the Government's amendment that I have just described. We have revisited these issues today. As my hon. Friends have argued in Committee, it is cheaper, faster and better to put such matters into an appeal before the court, rather than through judicial review.

In other respects, the Bill is a good measure, and I hope that the Minister will not allow failure to act on the outstanding issues to overshadow the wider achievements. The Conservative Opposition feel that access to justice is a serious matter that requires full and detailed consideration. Through the determined efforts of our noble Friends in another place, such detailed consideration has been possible. The Conservative party has long been in favour of many of the measures in the Bill, including means-testing for those who can afford it. The Government abolished that means test in 2001. Now, somewhat bizarrely, five years later they are bringing it back.

Photo of James Duddridge James Duddridge Conservative, Rochford and Southend East

What assessment has my hon. Friend made of the additional cost involved in that change? My impression is that the Government simply got it wrong and that, while I welcome the Bill, it seems to be backtracking. What assessment has my hon. Friend made of the amount of money that has been wasted?

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

My hon. Friend asks a good question. Perhaps the Minister will be able to tell the House the answer.

We support the Bill in principle, but there are various questions that the Government need to address. While we largely welcome the Bill, especially the introduction of means-testing, it represents only a very small step towards the reform of the legal aid system. Yes, the growth in spending on the criminal defence service has to be checked, but we also need a focused and sustainable plan of action to address these serious issues.

The Department for Constitutional Affairs press briefing on the Bill stated—rather grandly, I thought—that the Bill would

"ensure that the cost of criminal legal aid does not continue to threaten to erode the civil legal aid scheme, which is recognised as a vital first line of defence against social exclusion".

I am afraid that, on its own, the Bill does no such thing. Much as we agree with the basic premise of the Bill, it does nothing to tackle the other main factors driving the increase in criminal legal aid costs, in particular the very high cost criminal cases and the way in which the Crown Prosecution Service manages prosecutions, especially complex ones. It certainly has nothing to do with helping civil legal aid, as the Department's press release suggests.

As the Department for Constitutional Affairs itself acknowledged in its recent White Paper, more than 50 per cent. of Crown Court legal aid is now consumed by just 1 per cent. of the cases involved. My noble Friend Lord Kingsland said in another place 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."—[Hansard, House of Lords 13 June 2005; Vol. 672, c. 1083.]

The Government will no doubt argue that all these matters are being examined by Lord Carter's review of legal aid—in fact, the Minister has done so already—and that we should await the outcome of that review. If so, we should like to know when that review is to be published. Why is it not available now, when it is so clearly needed in the context of this debate?

It is self-evident that we need a far greater emphasis on reducing expenditure in high cost cases, and 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's review, the Government should be seeking urgently to make progress. What we need are imaginative solutions if we are to achieve a sustainable legal aid system and an application of basic management skills to criminal case management.

We attempted to deal with the issue of a Crown court scheme on Second Reading and in Committee. The Government had made a fairly convincing response to our earlier request for the contemporaneous introduction of the Crown court scheme, and we are prepared to accept the concept of a phased roll-out of a similar regime in the Crown court on the basis that it is expeditious. We should, however, like to know from the Government when that is likely to happen. We should also like a review of the Bill's effects before the means-testing scheme is implemented in the Crown court. Will the Minister please confirm that that will happen, and explain how it is likely to happen? We recognise the benefits of a so-called phased roll-out, but that can only be effective if there is a full and expeditious appraisal of the consequences of the changes proposed in the Bill.

As we discussed these points during the Bill's earlier stages, I shall not discuss them now in great detail. However, if we are to have split magistrates and Crown court systems and starting dates, we—along with our noble Friends in the other place—have concerns about the perverse incentive that may result if the Crown court scheme is implemented at a later date. Defendants may opt for the Crown court route in cases that are triable in either way in order to ensure a more favourable position in regard to legal aid. That is another reason why the Government should be expeditious in applying the scheme to the Crown court.

The aim of the Bill was to address the funding crisis that beset the Government who abolished means-testing. Now they have recognised the error of their ways, it is important also to recognise the drain of high cost cases—particularly in the Crown court—that could hinder the merits, in practice, of what we ultimately support in the Bill.

The problem is not that the Government are spending too little; the problem is that cases need to be managed more efficiently, and there needs to be clarity about what legal aid is spent on. The Crown Prosecution Service, and judges themselves, need to manage cases more efficiently. Dealing with the management issues at an early stage will help to prevent even bigger problems from spiralling later. Yet the Government seem unable to get to grips with the difficulties. This must be seen as a significant failure on the part of the Department for Constitutional Affairs, and it must know that the reintroduction of means-testing in itself will not solve the problem or make significant savings in relative terms. A review before implementation in the Crown court will, we believe, be intrinsic to the fulfilment of what the Minister said on Second Reading was the aim of the Bill:

"a legal aid system that balances fairness with administrative simplicity and that is based on affordability yet is sensitive to an applicant's individual circumstances."—[Hansard, 13 December 2005; Vol. 440, c. 1238.]

All in all, the Government must recognise that the Bill is not a panacea for all the problems to which the legal aid system has been exposed. Although we welcome it in principle, it is only a small step towards desperately needed reform of a legal aid system that the Government have allowed to fall into disrepair, and much more remains to be done. The Department for Constitutional Affairs must know that the Bill in itself will not solve the problems.

The Government must recognise, particularly when producing the regulations that will follow the Bill but also when introducing the scheme into the Crown court, that what is needed is not simply restriction of the number of people being helped by the legal aid system as the Bill proposes, but what was proposed in the Government's own report "A fairer deal for legal aid": a system that is

"fair and effective, providing access to justice for all who need it."

I remain to be convinced that the Government have responded to their own message.

If, despite our general support for the Bill, the Minister thinks that we or the legal profession will accept the Bill as the answer to the legal aid crisis, she will need to think again.

Photo of Keith Vaz Keith Vaz Labour, Leicester East 3:49 pm, 26th January 2006

In response to the amendment tabled by Mr. Heath in the last debate, the Minister referred to a coincidence of desire. Until Mr. Djanogly got to the last part of his speech, I felt like a gooseberry watching not consideration in Committee being reported back to the House, but a love-in, so generous was the praise between those on the Front Benches and so amicable the discussions and various deliberations in Committee and in the House since consideration of the Bill began.

I pay tribute to the Minister and her colleagues at the Department for Constitutional Affairs on the modernising agenda that they have adopted since my noble Friend Lord Falconer became Lord Chancellor. There must be something of a whirlwind in the Department. I remember my time there as a Minister six years ago, when it was not so much sleepy, but at least not as dynamic as it is now. Legislation rushes out the door at breakneck speed and Ministers appear before the House practically every week to tell us about new legislation that is to be passed.

The Bill is important, primarily because we want to save money on the very large legal aid budget. The hon. Member for Huntingdon will not remember the debates held in the House when I was first elected, when the legal aid budget was, even under the last Conservative Government, spiralling out of control. The current legal aid budget is £1.1 billion, which makes the DCA one of the biggest-spending Departments.

The savings that the Bill envisages are quite small—only £35 million out of £1.1 billion—but £35 million is a lot of money. It is better than a poke in the eye, and any legislation that saves money for the taxpayer so that it can be spent wisely is to be welcomed. Therefore, I welcome the Government's approach of targeting legal aid so that it is spent on those who need it. The Minister gave the examples of the lottery winner and the football player, but there are a lot of people in between them and the very poor who must not be left out.

My main concern, in accepting what the Government have done and supporting the Minister in the good work that she does at the Department, is that too much trust and faith are being put in the Legal Services Commission. Once the decision-making process is taken away from the judges and the courts, removing that degree of independence and putting it in the hands of bureaucrats, some of whom are ex-civil servants—not that we have anything against them; I shall use the term "officials", if I may call them that—our ability as Parliament and that of people who apply for legal aid to feel that they have had their case justly treated are also removed.

The Minister accepted the amendment tabled by the hon. Member for Somerton and Frome, and I welcome the spirit in which she did that, but I ask her to spend her time and efforts in supervising and monitoring what the Legal Services Commission does. It is dispensing a huge amount of public money, so both ministerial eyes need to be firmly on those who govern the commission. The Minister should be willing to respond to the concerns of Members of the House, the public and the professions when they point out that things are going wrong.

My hon. Friend Julie Morgan, who unfortunately has had to leave the House, has raised with the Minister, as I am doing again today, her concern and mine about the proposals to stop the specialist support services in England and Wales, which are, instead, to be provided by the Legal Services Commission. My hon. Friend tells me that they will be stopped in July. I see that the Chairman of the Constitutional Affairs Committee, Mr. Beith, and other members of the Committee are here today. We discussed this very matter yesterday.

The concern held by my hon. Friend the Member for Cardiff, North and by me is that these services are being stopped when the Government should be ensuring that we target our money so that services that work—providing assistance and advice to voluntary organisations on issues such as debt, housing and welfare benefits—should continue. I ask the Minister to look into that point at the same time as she is asking us to put our faith in her judgment and that of the Lord Chancellor in transferring yet again so many powers to the Legal Services Commission.

The hon. Member for Huntingdon is right; in a sense, the Government are the victims of their own success. Having taken power in 1997 and having told the public that they would catch criminals faster, that is what they have been doing. But that puts pressure on the court system, which goes back to an earlier point concerning the relationship between the DCA and the Home Office. The DCA is an equal partner with the Home Office. The Home Office is not in charge and the Home Secretary does not tell the Lord Chancellor what to do; I am quite sure that the Lord Chancellor is robust in his dealings with the Home Office. But our great success in catching criminals and reducing the number of crimes committed has resulted in an increase in the legal aid budget.

I see my hon. Friend Chris Bryant looking at me. Clearly he will soon be gesticulating to tell me to bring my speech to a close and, as I am quite afraid of him, I will do so. I have enormous respect for my hon. Friend the Under-Secretary, who has done good work on immigration appeals. I ask her to listen to the professions and not to fight with them.

I have read the Law Society brief on this and it has no problems with what the Government are doing, apart from the effect on the right of appeal. I ask my hon. Friend to work with the professions and with those who help those going through the legal system. I am sure that the good will generated for most of this afternoon will be generated again by similar legislation that I am sure my hon. Friend will propose in the years to come.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 3:56 pm, 26th January 2006

I must say to Keith Vaz that it is paranoia of the highest order to be afraid of Chris Bryant. However, I agree with some of what the hon. Member for Leicester, East said.

There are few months of the year in which I bemoan the dearth of legislation coming from the DCA and the Home Office. Indeed, sometimes it feels as though one does nothing else but read new legislation. However, the hon. Gentleman is right about the relationship between the two, although I would argue that we should have a ministry of justice to take on all criminal justice responsibilities. If we create 800 new offences, people will be tried for them and that costs money, which is where the increase in legal aid comes from.

I believe legal aid to be one of the great glories of this country. The fact that we are prepared to institute a pillar of our welfare state to provide for people who need representation before our courts is something to be rejoiced and not slighted; it is a necessary part of a civilised society.

I pay tribute to the Under-Secretary, who has finally discovered how to pronounce my constituency, to the point that she corrects others. That is a wonderful advance in a short time. She and other Committee members have done a fine job. We debated the Bill and, we hope, improved it, but we did not take an unnecessary amount of time to do so. The fact that we have managed to complete consideration does not suggest a lack of care or scrutiny. It is a simple fact that this is a brief Bill with few complicated proposals that, therefore, does not require long consideration. But we have pointed out what is lacking in it.

It would be easy, were it not for the constraints of the rules of the House on Third Reading, to launch into a much wider debate on the future of legal aid, as it is a serious issue that needs debating. This debate, however, deals with a narrow point. It would also be extremely valuable to pick up on the point made by the hon. Member for Leicester, East and his hon. Friend Julie Morgan, and I hope that the Minister can enlighten us as to the loss of specialist officers in the Legal Services Commission.

This measure deals with eligibility for criminal defence legal aid. Two issues arose in Committee, the other place having dealt with the major issue of the capacity to appeal in the interests of justice. One was the issue of the residual power, which was raised by the new clause. I still maintain that that would have been an improvement to the Bill, that it would have created a better, more appropriate way of dealing with exceptional cases, and that it would have saved a little money in the process. The Minister has not, however, accepted that.

The other issue was that of appeal. I have said that I believe that the amendment from the other place was wider and better in its scope, but I repeat that I am grateful to the Minister for listening to my points and arranging for me to meet her officials to discuss whether a compromise was possible, and for accepting the amendment to the Bill today. I say with a degree of confidence that I think that it will satisfy those in another place who will consider the matter later.

The Minister must not be allowed to get away with the fact that the Government marched us up this hill only a few years ago and are now marching us down again. Consistency is not the Government's strongest point in their approach to this issue. That said, I welcome what has been put in place today to curb what, to the layman, and to an interested observer, are abuses of the system. I welcome the fact that the Government have not reintroduced a crude threshold for means tests but have taken a more sensitive and sensible view about the taper that should be applied, which I commend.

I return to a basic point: nobody wants to see a lot of money spent on legal aid until they need that support to defend themselves in court. It not just millionaires, or those without means, that we are dealing with. It is those in the middle who are most affected when, in extreme circumstances, they find themselves before the court and unable to receive the support that they need to present their case properly. Those people must be clearly in our minds when addressing the Bill. The Bill goes a long way to deal with some of those issues. The wider issues of legal aid in the criminal and civil courts will wait another day, but the Minister can be assured that we have extremely strong opinions on those.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 4:03 pm, 26th January 2006

I support the Bill, particularly in relation to the restoration of the means test and the fact that the Government have learned from their mistakes. In terms of the detail, I welcome the fact that the application of the means test will be much more straightforward and less bureaucratic. I remember the days of the old means applications, when a paper trail among a pile of wage slips or statements was necessary, but I understand that the regulations will introduce a much more straightforward procedure.

I have some fundamental reservations, however, which revolve around the conferring of powers on the Legal Services Commission. In that regard, I support the comments of Keith Vaz. On grounds of principle and practice, we are concerned that the courts' remit will be taken from them. We sought in Committee to retain the residual power. We sought through new clause 1 to retain it as an exceptional power. Both those attempts failed.

Can the Minister give us assurances in relation to the practical application of the conferring of powers to the Legal Services Commission? I draw her attention to page 13 of the supplement to the framework document. It states:

"If . . . the Interests of Justice test is not applied consistently across the country . . . the LSC would issue guidance to court staff about the application of the test."

Then the threat, which raises those fundamental concerns, comes into play. The document suggests that there are two options:

"Ultimately, the Government could amend schedule 3 to the Access to Justice Act 1999 to clarify the working of the Interests of Justice test. Alternatively"— this is the nuclear option—

"it 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."

That option was a matter of concern on principle, but now that we have moved beyond that, it is a concern in practice.

The Minister has justified the Bill on the basis that court staff will be involved in the application of the new regulations. That makes sense because they are on the ground. They know the best way of maintaining the system in terms of granting legal aid and assessing financial eligibility. They are closest to the decision making. They will be able, practically and quickly, to make the decision. Therefore, I ask her to give an assurance that the final option of devolving the practical powers so as not to involve court staff will not be proceeded with and that, at the very least, if the guidance does not work in the Government's eyes, they will seek to bring the matter back before the House to amend schedule 3 to the Access to Justice Act 1999 to deal with the working of the interests of justice test, and will not go straight to the final option, take all the practical powers away from court staff and give them to the LSC. At that point, the concerns of the hon. Member for Leicester, East, practitioners, court staff and others would come into play: decision making would be far removed from where it should take place, which is in the court building. Will the Minister directly respond to that?

This is not the place to do it, but I point out that it is estimated that there will be a saving of £35 million through the application of the scheme. Can that be properly taken into account when Lord Carter's review is published and when consideration is given to how to deal with lower courts' work? It has been accepted by the Department that lower court costs are under control already. We now face the prospect of £35 million savings. Can we properly take account of that and allow that to form part of the judgment before proceeding to, from the practitioners' point of view, another nuclear option: competitive price tendering, which raises concern that the work and service of many local practitioners for the community, not least black, minority and ethnic firms, will be threatened?

Primarily, I seek assurances on the practical implementation of the system in terms of transferring powers from court staff and conferring them on others.

Photo of James Brokenshire James Brokenshire Conservative, Hornchurch 4:08 pm, 26th January 2006

I broadly welcome the introduction of the Bill, particularly in the context of the cost issues affecting legal aid. Since 1997, the legal aid bill has grown from £1.5 billion to around £2.36 billion for the current year. That emphasises the need to tackle that issue urgently, particularly when one considers the different balance between civil legal aid and criminal legal aid. The funding to civil legal aid has gone down by about 1 per cent. during that time, showing that it is the criminal side of legal aid that has seen growth in expenditure.

It is interesting that, when the Government introduced their previous proposals, which effectively scrapped means-testing, in the "Modernising Justice" White Paper, they described means-testing as complex and costly, highlighting issues where lack of documentation led to delays and the further costs associated with that. They talked about it being an unjustifiable waste of money. It is interesting to see how the debate about and, perhaps, the recognition of the need for some form of means-testing has come back. For this to work and to make the potential savings of £35 million that my hon. Friend Mr. Burrowes talked about, it will require good administration, not the bureaucracy that some hon. Members fear may exist in the Legal Services Commission. That needs to be monitored carefully if we are to get the hoped-for cutbacks in the increase in spend through means-testing. For that to happen, we must not get bogged down in a mire of bureaucracy and administration.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

The problem remains that good legal aid practitioners are leaving legal aid work because the rates are so low. It is not that they wish to make a huge profit from it; it is the fact that they cannot afford to continue in that work. That means that those who are not particularly good may remain to do the work because they can afford those rates.

Photo of James Brokenshire James Brokenshire Conservative, Hornchurch

The hon. Gentleman makes a valid point, which I was coming to, about access to justice and the quality of justice, support, advice and guidance that is received by the beneficiaries of legal aid. There is still a much wider debate to be had on the future of legal aid and legal services, which falls outside the scope of today's debate. Clearly, we need to ensure that legal support is there where it is needed and that where it is needed, it is robust and of sufficient quality to ensure that those individuals are properly represented. I agree with the hon. Gentleman, who also sits with me on the Constitutional Affairs Committee. I suspect that we in that Committee will continue to monitor this in the months and years ahead.

We need to monitor the impact of these provisions. I understand that they will be introduced in magistrates courts first and the Crown court thereafter. Obviously, the Minister will closely monitor the impact of that, particularly where offences can be tried in either court, and whether people elect to go down the Crown court route because of the flexibility that might remain there following the introduction of these provisions.

There have been interesting comments about the reasons for the growth in the budget. Mr. Heath highlighted the fact that we have seen an increasing number of offences on the statute book. Clearly, changes to sentencing guidelines have had some impact, in terms of the greater risk of imprisonment, giving rise to demands and needs for access to justice and fair justice, ensuring that people are properly represented. We must not forget the argument about the inequality of arms. We cannot have people feeling intimidated or threatened by the power of the state seeking to impose criminal penalties, and the fact that they cannot be adequately represented or defend themselves.

I remain struck by the comments of my hon. Friend the Member for Enfield, Southgate when he moved his new clause in an attempt to ensure that the less advantaged and perhaps people with mental health problems are not disadvantaged by the Bill. I urge the Minister to monitor this closely to ensure that people from less advantaged backgrounds, people who are illiterate or people with a disability are not prevented from gaining access to justice. I am sure that that is not the intent of the Department for Constitutional Affairs. I ask the Minister to keep this under review and ensure that the fairness that is the hallmark of our justice system remains.

I am pleased that there has been some movement—particularly in another place—on the clarification of appeal rights; such clarification has been an important part of this legislation's development. We must make it clear that there is a separate means of ensuring that, where necessary, the Legal Services Commission's decisions are scrutinised in court. We will need to monitor the system's operation and performance in order to establish how many of the LSC's decisions are successfully appealed. If many are, that would tend to suggest that there are problems with the system's administration, and with the way in which decisions are being determined.

Last July, the Constitutional Affairs Committee's report on the Bill stated:

"Legal aid plays a vital role in ensuring that those who cannot afford their own defence costs can still obtain legal representation. It also protects against unfair trials and 'inequality of arms' between the defendant and the prosecution and makes it easier to protect defendants' rights."

They must be the underlying principles driving the changes being implemented today. I welcome the Bill, but I hope that it will continue to be scrutinised as it completes its legislative passage, that the aims and objectives effectively summarised by the Constitutional Affairs Committee are put into practice, and that we have a strong and robust system that continues to deliver high-quality, effective and cost-effective justice.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with an amendment.