Criminal Defence Service Bill [HL]

– in the House of Lords at 3:07 pm on 13 June 2005.

Alert me about debates like this

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 3:07, 13 June 2005

My Lords, I beg to move that this Bill be now read a second time.

The Bill is designed to make the criminal legal aid system fairer and more efficient both by transferring responsibility for the grant of representation and by introducing a new system of means testing for criminal cases.

Before I speak in any great detail about the proposals we have before us today, it may assist the House if I briefly place the Bill into some historical context. Your Lordships will be aware that proposals for a system of legal aid were first advanced by the Rushcliffe report in 1945. They were enacted in the Legal Aid and Advice Act of 1949.

The founding principles of legal aid were simple. In a time of historic welfare reform that saw the birth of both the National Health Service and the modern welfare state, it was decided that a "judicare system" should be established whereby lawyers would cater for the needs of the poor as well as the wealthy. The system would guarantee that the poor would be able to receive legal advice and representation so as to prosecute and defend their legal rights and to ensure that they would achieve equality in doing so. Both counsel and solicitors would, at the same time, benefit from fair remuneration for their services.

The Access to Justice Act of 1999 delivered a range of reforms. It created the Legal Services Commission to replace the old Legal Aid Board. It established the Community Legal Service better to focus resources on priority family and social welfare matters and help to take great strides in tackling social exclusion. It also created the Criminal Defence Service to replace the old criminal legal aid arrangements.

Within that framework, the Government have continued to introduce other innovative measures aimed at improving the performance and cost-effectiveness of legal aid. But throughout its history—the 1960s, 70s, 80s and 90s—the cost of providing legal aid rose exponentially. Expenditure this year (2004–05) is expected to reach £2,036 million. That is £511 million more than in 1997–98 and represents an increase of some 34 per cent at a time when inflation was running at a mere 1.3 per cent.

I am sure that we accept that this trend cannot be allowed to continue. It is vital that, even after taking account of a number of measures that we are taking to improve efficiency, we take more strategic action to ensure that legal aid is placed on a sustainable basis for current and future generations.

The growth in expenditure has led to an imbalance. We now spend a disproportionate amount of money defending people accused of crimes compared to the amount that we spend helping and advising the most disadvantaged and vulnerable people in our society. The Bill is one means by which we are seeking to redress that imbalance and to create a fairer deal for the taxpayer, while ensuring that defendants are properly advised and represented. It will ensure that publicly funded legal help and advice can go to those who need it most to resolve their disputes and problems, and will refocus resources on priority need.

Legal aid must ensure that representation is available for criminal cases sufficiently serious to require it and when defendants cannot afford it. But we believe that it is only right that those found guilty who can clearly afford to pay for their own advice and representation should pay for it themselves. Legal aid must be reformed so that it responds to what justice requires and so that it continues to be an effective, fair system that provides access to justice for all who need it and gives the taxpayer value for money.

Your Lordships may recall that the CDS Bill was first published in draft in the third Session of the last Parliament and underwent pre-legislative scrutiny in the spring of last year. The draft Bill and a description of the supporting policy, as it existed at that time, were also published as part of a wider public consultation. The Constitutional Affairs Select Committee published the report of its inquiry into the draft Bill on 27 July 2004 and the Department for Constitutional Affairs responded in November 2004. Subsequently, the Criminal Defence Service Bill, which had an accompanying framework document detailing the supporting policy, was introduced into another place in December 2004 but the Bill failed to complete its passage in the curtailed Session before the general election.

Before I move on to summarise the powers under the Bill and outline the scheme it is intended that they should create, I shall say a few words about the evolution of this policy. The Bill and the new scheme that will be set up under it were developed taking into account not only the findings and recommendations of the Constitutional Affairs Select Committee but also a wide range of input from key stakeholders. That input was received as part of the formal consultation process and as part of a continuing and useful engagement on the part of the professions.

By necessity and design, despite the slightly protracted timetable, the policy in this area has not stood still. In the time since its first introduction, the Government and the Legal Services Commission have worked together to evolve and refine the way in which the final scheme will operate. Those who have followed the progress of the Bill will recall that the early models proposed for its implementation relied heavily on the participation and investment of the professions. Our proposals were not widely well received and we accepted at that time that we needed to devise a scheme that minimised the risks to the supplier and substantially reduced the burden of bureaucracy on the defendant and his or her representative.

In short, in bringing forward the Bill, and in developing the proposals for its implementation, the Government have listened and responded. What we have published in the new framework document now has a broad level of support from the legal professionals who will be most affected by its introduction.

Despite the large amounts of progress made in developing the detail of the policy, the Bill and the powers it is intended to confer remain unchanged, with the exception of a small number of technical consequential amendments. The Bill contains two enabling powers that facilitate the transfer of responsibility for the power to grant representation from the courts to the Legal Services Commission and the reintroduction of a test of financial eligibility; a means test. Both powers relate to criminal cases only. I should add that the Bill extends to England and Wales only.

Clauses 1 and 2 confer these powers by amending Schedule 3 to the Access to Justice Act 1999. Because its overall effect is fairly opaque when read in isolation, we have appended to the framework document a text of Schedule 3, as it would read when amended by the Bill. I hope that the House will find it helpful. Clause 3 takes the power to impose contribution orders, and is required for the purposes of the future Crown Court scheme and for the arrangements for dealing with unusually high cost cases. Clause 4 makes consequential amendments to other legislation.

The scheme to be developed under the powers provided by the Bill will take the following shape: the grant of legal aid will cease to be an almost wholly judicial function and will become the responsibility of the Legal Services Commission. Financial accountability for the means and the merits tests will lie with the LSC, subject to the appeals process. In practice, this will mean that the court staff, who already have substantial experience of the grant of legal aid, will remain responsible for its day-to-day operation in an arrangement to be governed by a service level agreement with the Legal Services Commission. There would be an appeal to the court against a decision to refuse representation based on the interests of justice test. Transfer of grant will ensure consistency and certainty in grant behaviour and will ensure that the Legal Services Commission gains far greater control over expenditure in this area.

There will be an early means test as soon as a legal aid application is made, based on an assessment of gross income and on a number of eligibility allowances designed to reflect average costs of living, calculated on the individual circumstances of the applicant. There would be no contributory element, apart from in exceptional circumstances involving high cost cases. We will introduce a limited number of eligibility allowances to ensure that the scheme is fair, sensitive to individual circumstances and reflects capacity to pay. Means information would be collected from defendants at the earliest opportunity after entry into the criminal justice system on a consolidated application form covering both the early advice and assistance scheme and the grant of representation.

Under the new two-tier scheme, defendants would be able to apply for legal aid under an extended advice and assistance scheme running up to and including the first hearing, at which time a means-tested representation order would come into force. Eligibility for this scheme would be determined on merits only; applicants would not be tested for means. This will ensure that the new system does not introduce delay and that it takes advantage of the natural pauses that already exist within the criminal justice process.

We do not believe that what we are proposing for the Magistrates' Court would be an efficient or fair model for means testing in the Crown Court. In the short term, we therefore plan to strengthen further and enhance the existing system of recovery of defence costs orders in terms of their administration and enforcement, as well as making greater use of the courts' existing power to restrain people from disposing of their assets. The Bill confers the power to introduce formal means testing into the Crown Court.

The eventual scheme will rely on a combination of powers within existing legislation and new powers taken by the Bill. The Government will publish a more detailed model for the Crown Court scheme in due course and repeat their firm undertaking to consult further and widely on these proposals. Your Lordships will note that the new scheme as a whole is described in a good deal more detail in the framework document that accompanies the Bill.

The Government believe that the Bill, and the new scheme, strike the right balance between fairness to the defendant and administrative simplicity. The new arrangements will be predictable in outcome and easy to understand for defendants, solicitors and the court-based teams responsible for administering them. They will ensure that those who can afford to pay for the cost of their own defence will do so, if convicted. Most importantly of all, they will ensure that a sustainable legal aid system continues to exist to protect the rights of current and future generations. On that basis, I have no hesitation at all in commending the Bill to the House.

Moved, That the Bill be now read a second time.—(Baroness Ashton of Upholland.)

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 3:19, 13 June 2005

My Lords, the Bill had pre-legislative scrutiny. One would therefore expect it to contain the basic provisions of the scheme to be brought into being. But, again, we face the making of more regulations. Everything is to be set out in detail in regulations that we have not seen, even in draft. Those regulations will apply not only to the magistrates' court but also to the Crown Court. It is impossible to give adequate scrutiny to proposals which are still kept hidden. The framework document, to which the Minister referred, suggests that the scheme involving Crown Court cases is still under development and that a likely feature will be a contributions regime.

The noble Baroness said a moment ago that the same principles that apply to the magistrates' court cannot be applied to the Crown Court and that therefore more consultation will be necessary. Yet in the Bill the Department for Constitutional Affairs takes power to issue regulations—and of course such is the inadequate machinery of this House that those regulations cannot be amended in due course.

Perhaps I may be forgiven if I make some comments about the Crown Court position, about which I know quite a bit, where the preponderance of the money available for legal aid is now spent. If I do not make those comments now, I will not have the opportunity of making any effective comments if regulations are brought into being.

The Government complain of the increased cost of defence work and, indeed, of the increased length of trials. The implication is very often that that is in some way due to the attitude of the defence legal teams to the conduct of the criminal justice system—an attitude which is both irresponsible and cost provoking. The increased length of trials, and therefore the increased cost, is due to a number of factors which interrelate.

First, there is complex legislation. That can be laid at the door of the Government. No sooner have the parameters of one Criminal Justice Bill been discussed and tested and applications and rulings obtained in relation to them than another Criminal Justice Bill is launched by the Government. Most provisions over the past few years have been designed to make it easier for the prosecution to persuade a jury to convict whoever happens to be standing in the dock at the relevant time; I think of the presumptions that were introduced in the sexual offences Bill or the determination of the previous Home Secretary to ensure that an individual's bad character—his list of convictions—should be produced.

That is one problem that lengthens trials; the second is the Crown Prosecution Service. That service, under pressure to bring a case to court as quickly as possible, throws statements at the defence as soon as it possibly can and follows them up with endless notices of additional evidence, each of which demands time for discussion and the taking of instructions from the client.

Thirdly, the Prison Service is a disgrace in its privatised and statutory forms. Case after case is delayed in courts right across the country while the prison van is awaited. There is no time for proper consultation unless an application is made to a judge, which has to be granted.

Then there is the practice of listing applications—bail applications and other elementary matters—before a trial judge, particularly before the senior judge who is trying a serious trial in a busy court complex. Ranks of senior counsel may be awaiting completion of the judge's list. It is not unusual to lose up to an hour each day so that over a week a full court day is lost.

Finally, there is the method of payment. The graduated fee scheme provides a basic trial fee based on a simple bean count of the number of pages the prosecution produces and the number of witnesses. There is then a "length of trial" uplift. You get more if the case goes on for longer. That means it does not pay to complete a case quickly. If a defendant pleads guilty on the strong advice of his counsel, that counsel will be paid substantially less—not more—than if he had strung the case out for a long time. The Bar Council has described the system of payment as creating perverse incentives which deny a proper reward for those who conscientiously focus on the issues and shorten the proceedings.

Under the present system, preliminary work is not paid for at all. A junior counsel in Newcastle told me only last week that he had spent 21 hours of preparation so far for a pre-trial review involving one of those murder cases that we discussed in a recent Bill, where a husband and wife are charged with the murder of a child and it is difficult to know which of them carried it out. In such a complex case, counsel does not get paid for all the hours of preparation he has to put in before the pre-trial review.

I could go on, but my noble friend Lord McNally told the party meeting that there would be a tear in the eye of everybody listening if I went on for too long about counsel's remuneration. I fail to see any tears. But there we are; I leave it at that.

The Lord Chancellor, having introduced a bad scheme of remuneration in very high costs cases, which led to a virtual strike of the criminal Bar, is now talking about asking for bids from Queen's Counsel. The client in a commercial case can judge how much he wants to pay and how much expertise he is hiring. In criminal cases it is not the client in the dock who decides under this system; it is proposed that some unknown person in the Legal Services Commission will decide who is the cheapest and the best person to represent him. So we will move into bids. It is an auction for the cheapest lawyer; this is eBay justice.

My experience of the Legal Services Commission at work in these very high cost cases is that the so-called case managers, who are not lawyers and have no experience of the way the criminal courts operate, are hopelessly inadequate in the way that they give or refuse approval to the work which the barrister is to undertake or has undertaken.

Perhaps I have said enough to persuade your Lordships that the scheme still under development for the Crown Court is so different from the scheme for the magistrates' court that it demands a separate Bill. That is the background to my approach to the proposals relating to the magistrates' courts in this Bill.

None of us—I am sure all around the House—has any objection to the re-introduction of a means test in principle; that is, that someone should pay for his legal aid unless he cannot afford to at all. This Government abolished the means test in the first place on the grounds that it cost more to administer than it saved. Having abolished it, the obscenity was discovered that highly paid people, whether company directors or football stars, were claiming legal aid at the public's expense.

We should like to know why it is thought that the new scheme will be cost effective, since it is so structured that the refusal of legal aid by some backroom individual will almost certainly lead to an appeal with additional cost. The noble Baroness said that it is administrative simplicity and that they would set an upper limit based on gross income. The trouble is that that proposed upper limit is £27,500 before tax. I suppose that is slightly above average earnings for an individual, but it means that middle earners will be penalised again. A person who earns £28,000 will have no legal aid under this simple scheme and a person who earns £27,000 gross before tax will have full legal aid with all his costs paid. That seems to me to be nonsensical.

My second criticism is that the merits test becomes an administrative and not a judicial function. How can anyone in the Legal Services Commission, at a low level and without any actual experience of the courts and how they work, make a decision about what is and what is not in the interests of justice?

No doubt it will be said that under the proposed service level agreement to which the framework document refers, the responsibility for making the decision will be delegated to court staff. If it can be delegated to court staff, why leave the magistrates out of the equation? If the magistrates' clerk is to make the decision on where the interests of justice lie, why cannot the magistrates themselves? It is not proved that they are not performing that judicial function of granting legal aid responsibly and well. Are their current decisions on legal aid so perverse that money is being thrown away? That is not proved.

We would have no quarrel with the magistrates' court deciding that legal aid should be granted subject to the question of eligibility and that that eligibility, if in doubt, should be decided by the Legal Services Commission. There is no problem about that. But what is or is not in the interests of justice is a judicial decision.

My third criticism is of the appeals process. If the person is refused legal aid and appeals to the court to reconsider that decision, an appeal is not to be allowed on the merits. The magistrates' court does not consider whether it would have granted legal aid in the circumstances: the framework document makes it absolutely clear that the court will not revisit the decision of the court staff afresh; it can consider only whether the decision is irrational, was not reached fairly or is outside the commission's powers. Those are the judicial review procedures. Your Lordships will recall that when we were discussing control orders before the general election, we spent much time considering whether control orders should be subject to judicial review or whether the court should have the power to consider decisions on their merits. It looks as though we are going into battle again on that blood-stained ground.

Those are substantial criticisms. We know that the purpose of the Bill is to reduce the amount of money paid to lawyers and that, because of that, it will have great popular support, but that is not sufficient for a fair and just system that ensures that the individual can have justice in the magistrates' courts of this country.

Photo of Lord Ackner Lord Ackner Crossbench 3:32, 13 June 2005

My Lords, it is a great privilege to belong, pro hac vice, to this happy band of brothers. I hope that the noble Baroness will not be offended at my including her, but it would be an unhappy band without her.

I should like to make one essential submission, which is the reason for my intervention: the provisions of the Bill in regard to the granting of legal aid are a constitutional aberration. They are a constitutional aberration for the simple reason that it is common ground, and on the government view, that a wholly judicial decision on a grant or refusal is to be replaced by an administrative function carried out by court staff, not with a right to appeal—that is a misnomer—but with a right to go for judicial review in the exercise of the court's supervisory jurisdiction. If the court says that the decision is beyond the powers of the commission, that does not in itself in any way cancel the decision; it merely sends it back to the commission.

However, we are here dealing with criminal offences in which the state is bringing proceedings to cause the accused to be punished appropriately for having committed a criminal offence. Obviously, the state has an interest in succeeding in its prosecutions. I should have thought that it was quite wrong, constitutionally, for the state in those circumstances to be in charge of the representation of the accused person. That, being a judicial function, should remain with the judges to decide and should not be handed over to court staff, who will no doubt be directed regarding in what type of case to allow representation and in what not to.

The court is seized of the facts of every case and has the benefit of submissions by lawyers. It must be better placed to decide what is or is not, to cite the words of the Act,

"in the interests of justice", in any particular case. In particular, it is aware of the level of representation of the Crown and the significance of the case both to the public and the defendant.

By way of contrast, the commission, an executive agency, has a direct financial interest in the number of grants. It has a budget and a financial target that must be achieved. Inevitably, there is a temptation to use the "interests of justice" test as a mechanism for financial control. There is a distinction under Article 6 of the European Convention on Human Rights between criminal and civil cases, which is at present a proper reflection of the court's control of the grant of representation in criminal matters.

It is common ground and it has been so stated in the framework document that the right of refusal of legal aid is a judicial function and that, in future, it will be an administrative function. The justification for that is to save money, but that does not in any way explain what the courts are currently doing wrong and in what respect they are exceeding a proper approach to what is

"in the interests of justice".

Until that is established, I respectfully submit that the Government are committing a constitutional aberration and I invite them to think again.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 3:38, 13 June 2005

My Lords, in view of the lengthy number of speakers in this debate I intend to make my remarks quite briefly. In any event, my noble friend Lord Thomas of Gresford has put the case quite fully. However, I have a number of questions to ask and a number of comments to make on the Bill.

I accept, as does my noble friend, that there is a serious problem with the expenses of criminal legal aid. However, I have very serious doubts about whether this Bill will achieve any significant reduction. I therefore begin by asking why is it that the Government believe that the Bill will save money, and how much money do they expect it to save? The present regime for granting legal aid in criminal cases was introduced to speed up the proceedings and reduce costs by avoiding the need to apply for legal aid in advance of trials. Do the Government think that we will not, as a result of the Bill, go back to the old system and the problem with delays? If not, why not?

The Constitutional Affairs Select Committee in the other place recommended that Parliament should be able to see the draft secondary legislation to be introduced under the Bill before it goes through Parliament. So far, that has not happened. It is very important that both Houses should have the opportunity to see what is proposed by the Government in draft secondary legislation before the Bill is enacted, but so far we have seen nothing. Do the Government intend to produce any draft secondary legislation, and, if so, at what stage?

Continuing on the subject of secondary legislation, the Select Committee on Delegated Powers and Regulatory Reform of your Lordships' House will have to consider carefully some serious issues: whether this is simply a skeleton Bill to a degree that makes it unacceptable, and whether more regulations in any event should need the affirmative resolution procedure. As I read the Bill, the only regulations that will require the affirmative procedure are those made under new paragraph 2A of Schedule 3 to the Access to Justice Act 1999, which are to be made under Section 1(6). But there are others that are equally important; for example, the regulations to be made under new Section 17A of the Access to Justice Act, which provide the prescribed circumstances in which contribution orders can be made.

The Constitutional Affairs Select Committee also said that a proper appeal mechanism was of the highest importance. But the Bill restricts the existing rights of appeal significantly. Under the new regime, in cases of appeals on the merits, the right of appeal and any right of involvement of the court is reduced to an appeal that must merely satisfy the judicial review standards and does not give the court the opportunity of substituting its own decision for that of the Legal Services Commission. In the case of appeals on eligibility, the law is changed by eliminating appeals altogether and replacing them by an administrative review within the Legal Services Commission. Those seem wholly wrong in principle. A proper appeal to the court is essential. It is also wrong as a matter of practice because it may lead to higher costs and delays as more applications will be made for judicial review in the High Court on account of the impossibility of getting a proper review of those decisions at an earlier stage.

The introduction of the new regime in the magistrates' court but not simultaneously in the Crown Court may lead to significant numbers of defendants in "either way" cases opting for a Crown Court trial instead of one in the magistrates' court because of their more favourable position as regards legal aid. That will plainly increase the cost. Do the Government recognise and acknowledge that problem?

It is of great importance that there should be an overriding "interests of justice" test on both merits and eligibility or the Bill will not satisfy Article 6 of the European Convention on Human Rights. That test should be left to the courts and "the interests of justice" should not be defined in regulations as is the obvious intention of the Bill.

The substantial increase in criminal costs, which we all acknowledge, is partly due to an increase in prosecutions and also an increase in the number of offences created by law. When will the Government accept the need for ring-fencing between criminal and civil legal aid so that increases caused by the Government's own legislation do not lead to the cutback of civil legal aid?

I believe, frankly, that the Bill will do little, if any, good in reducing the costs of criminal defence. We need to look at other ways of reducing the expense of very high cost cases, which take up such an astonishingly high proportion of the total criminal legal aid budget. I strongly recommend that the Government look at the problems mentioned by my noble friend Lord Thomas of Gresford, and at cutting the costs of very high cost cases by better case management.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team) 3:46, 13 June 2005

My Lords, I have barely had time to wipe away the tears shed on hearing the submissions made on behalf of the Criminal Bar by the noble Lord, Lord Thomas of Gresford.

I wish to put a number of questions to the noble Baroness. First of all, I should like to make one or two constitutional observations. Why does the Bill refer to the Secretary of State for Constitutional Affairs and not the Lord Chancellor? Schedule 3 to the Access to Justice Act 1999, like the rest of the Act, is cast in terms of responsibilities and powers exercised by the Lord Chancellor. Why do we suddenly see, in a Bill that seeks to substitute a new regime for Schedule 3, this figure of the Secretary of State for Constitutional Affairs loom into view? The noble and learned Lord the Lord Chancellor spent much of the previous Session prevaricating about whether he should preserve his own office. In the end, the noble and learned Lord decided to do so. Why, immediately after that decision, do we find in legislation a reversion to the Secretary of State?

I endorse everything that the noble Lords, Lord Thomas of Gresford and Lord Goodhart, said about the importance of seeing the regulations in draft form. The Bill has been in preparation for some time, and the Government must have done serious, indeed comprehensive, thinking about what the regulations should contain. It is highly desirable, therefore, that in Committee, in two weeks' time, we have a clear idea of the main thrust of the regulations, if not a detailed draft with every "i" dotted and "t" crossed.

I also support what the noble Lord, Lord Thomas of Gresford, said about the Crown Court. I look with great wariness on that aspect of the Bill which seeks to translate the magistrates' court regime in some modified form to the Crown Court simply by way of delegated legislation. As the noble Lord rightly observed, your Lordships' House will not have the opportunity to amend such an item of delegated legislation. The noble Lord explained most cogently why the considerations in the Crown Court are different from those in the magistrates' court. I hope that the Government will think very carefully before insisting on that aspect of the Bill.

On the substance of the Bill, in principle, we, the Opposition, support the idea that some contribution should be made, by those capable of making it, to costs in the magistrates' court. That was the situation before the Access to Justice Act. It was changed, from 2001. And now, after four years' experience, the Government wish to change back again. The temptation is too great not to use the well-known military expression, "order, counter-order, disorder", because that is what it looks to those of us who sit on the other side of the House.

The system was changed because the Government thought that the combination of cost and bureaucracy and delay was such that the cost savings at the magistrates' court level was very marginal. That was a perfectly understandable conclusion to reach. Clearly something has happened in the last four years to make the Government change their mind.

Can the Government assure us that the savings that will be made will be real? Have they done a savings estimate? If they have, can they let us know what they think, generally speaking, will be the amount of money that will be saved by these measures? As the noble and learned Lord, Lord Ackner, said, we are facing a completely changed regime; but irrespective of the merits of the new regime, judicially, and in the context of Article 6 of the European Convention, is it actually going to save money?

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. The figures are quite well known but it is well worth reminding your Lordships what they are. The half dozen most expensive criminal legal aid cases in 2003 amounted to no less than 25 per cent of the total criminal legal aid budget. One per cent of the highest cost cases amount to 40 per cent of the total criminal legal aid budget. Whatever savings are made by these changes in the magistrates' court, they will be dwarfed by these figures.

Why are the Government not coming to your Lordships' House with proposals to deal with high cost criminal cases? This is the kernel of the real problem of criminal aid; the problem that is having serious implications for the amount of money available for civil legal aid. What proposals do the Government have? Will they come at an early stage to your Lordships with real proposals that will bite, to reduce these high cost cases? As the noble Lord, Lord Thomas of Gresford, said, it is not simply a matter of trimming defence costs. Much of the problem lies with the way the Crown Prosecution Service deals with these cases. Any proposals that the Government will make will require a very serious look at the whole way in which the Crown Prosecution Service approaches prosecution.

I turn to one or two points of detail. The noble and learned Lord, Lord Ackner, has in my respectful submission made some very important criticisms of the new system. The noble and learned Lord rightly says that what will happen under the Bill is a shift from a judicial decision, assessing what is or is not in the interests of justice in relation to representation, to an administrative decision. The administrative decision is rather complicated, because although, in principle, it devolves upon the Legal Services Commission, there is a service level agreement which delegates that decision back to the court administrative staff.

There is an appeal system but to describe it as such is a misnomer. It is a review system, not an appeal system. The court may review a decision by the Legal Services Commission; but the consequence of that is that the court itself does not make a new decision. It simply refers the faulty decision back to the Legal Services Commission to make a new decision. I wonder whether that is consistent with the Article 6 interest(s) of justice test. I hope that the noble Baroness, Lady Ashton of Upholland, will address that point head on when she replies; or if she feels unable to do so today, then at a later stage in Committee.

This move is particularly surprising because last year—or was it the year before—when we dealt with the Government's latest asylum legislation of reducing the two-tier tribunal system to one tier, the Government moved, in the interests of saving money, in the opposite direction. They decided to remove the responsibility for rewarding legal aid from the Legal Services Commission and give it to the court. Perhaps the noble Baroness would be good enough to explain why the interests of saving money were best served by giving the court responsibility in the asylum system; but appear to be best served by giving the Legal Services Commission responsibility when it comes to magistrates' courts. I must confess to feeling somewhat bewildered.

Although this matter has not been addressed by any earlier speakers, I wonder if the noble Baroness could also tell us something about the proposals for price competition and tendering, which I understand is to be an ingredient of this new system. I know that the Society of Asian Lawyers has expressed some concern about their discriminatory impact and, indeed, possible conflict with Article 6 of the European Convention on Human Rights.

The noble Baroness has no doubt talked to the Society and has reached a conclusive view on this matter and I would be most grateful if she could let us know what the Government's reaction is.

In conclusion I say again, so that there should be no doubt, in principle the Opposition support the idea of contributions but there is much in the detail of this Bill which gives us cause for concern.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 3:58, 13 June 2005

My Lords, I am very grateful to the noble Lords for participating in this short but extremely important debate. I say to the noble and learned Lord, Lord Ackner, that I am happy to be a part of any band of brothers—or sisters—that includes the noble and learned Lord and am extremely honoured to be thought of as such.

I am also grateful for the principle about which noble Lords have spoken. There is an issue of great importance here that we are seeking to address; that is, to ensure that we use legal aid appropriately and, in particular circumstances outlined within this Bill, that it is right and proper for those who are convicted and who are able to pay to do so. I am very grateful to those who have expressed those sentiments extremely well.

The best approach is to try to go through the points that noble Lords have raised and address as many as I can now, with the proviso I always give—that those issues I fail to address will be dealt with in correspondence between now and Committee. The noble Lord, Lord Kingsland, started by asking why the Secretary of State and not the Lord Chancellor is involved. I have an answer to that question, which is that apparently the Bill has to follow the Access to Justice Act as it stands now, not as it may or will be amended by the Constitutional Reform Act, when it comes into force. Apparently that means that we have to use that particular phraseology.

The noble Lord looks suitably bemused, but that is the answer I have. If there is anything wrong with that answer I will, of course, write to him but I cannot give him anything more than that.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

My Lords, that may be the complete answer but, of course, at the time that the Access to Justice Act was passed, there was no such personage as the Secretary of State for Constitutional Affairs. I find it difficult to see how using that expression now could be consistent with the 1999 Act. But there may be a very good answer to that.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the noble Lord will not be surprised that I, too, found that when I read the answer. However, that is the answer that I have been given. If it is incorrect, I will correct it. I felt that it was better to give a proper answer than not to give an answer at all. I am sure that the answer I have been given is correct.

Noble Lords have raised the issue of regulations. I do not think that any noble Lord will be surprised to hear that when I was first invited to address this legislation, my first question was whether we have the draft regulations. The main reason why I felt that it was appropriate to bring the Bill forward without those regulations is that we believe—I certainly believe—that within the framework document we have better explained the impact and effect of the Bill than the technical regulations would have done.

My speaking note, which I shall read out in order to invite your Lordships to chuckle with me, states that the nature of the regulations would be incomprehensible by any but the most erudite legal minds. I read that because, of course, in your Lordships' House we have the most erudite legal minds. I am very mindful of that but I was very clear that, in the generality of the framework document, we explain extremely well what the regulations will do.

It is our plan to produce regulations. They will not be available until after the Summer Recess on 10 October. I have already given the commitment to noble Lords to whom I managed to speak earlier that, in our deliberations in Committee and at Report, I will be crystal clear on what the regulations contain. I hope that noble Lords will feel comfortable that when the regulations come forward, they will do so on that basis. I am also very happy to discuss with the noble Lord, Lord Goodhart

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I am grateful to the noble Baroness for giving way. Given that the timescale is towards the end of the Summer Recess, would it be possible to programme the Bill so that Third Reading in your Lordships' House does not occur until after the summer Recess?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, if only I were capable of programming any Bills in your Lordships' House. I will certainly bear that in mind in my discussions. I am very clear that noble Lords should not be under the impression that a lack of the regulations before your Lordships' House in any way is detrimental to your Lordships' ability to understand precisely the purpose of the Bill and how we shall enact it. It is very important that we have the final consultations that need to take place. The regulations will come forward by affirmative regulation. I heard what the noble Lord, Lord Goodhart, said about other aspects of the regulations that might be by the negative procedure. I am very happy to discuss that whole issue in Committee or before in order to give clarity and comfort about the way that we are taking this forward.

In summary, I am clear that we have given your Lordships—certainly for those of us with less than erudite legal minds—a greater explanation of what we seek to do. We will of course make sure that your Lordships have a full debate on the regulations as they come forward.

A number of concerns have been raised by noble Lords on the Crown Court scheme, not least by the noble Lords, Lord Thomas of Gresford and Lord Kingsland, and the noble and learned Lord, Lord Ackner, to ensure that we address this issue properly. The noble Lord, Lord Goodhart, pointed out the question of perverse incentive for those who have the option of going into either court and whether that would be an issue. We are allied to that question. In a sense, we have begun to think about how we might address that.

I am very clear that we need to ensure that the magistrates' scheme is given an opportunity to be in place and to work before we move on to the Crown Court scheme. However, I would argue and will continue to argue throughout the passage of the Bill that in order to ensure that we are able to move forward on the Crown Court scheme, the best way of approaching it is to allow for regulations within the Bill. We recognise that noble Lords will seek assurances, and will wish to know in greater detail how we would approach it and the process and procedure for bringing it forward, not only to your Lordships' House but also to those who would be affected in any way. I undertake to do that.

But I disagree with the noble Lords, Lord Kingsland and Lord Thomas of Gresford, that we need to have a separate Bill. We need to be sure that we are clear about what we propose to do. I have already indicated to your Lordships that it would not be appropriate simply to transfer the proposed scheme for the magistrates' court to the Crown Court, for reasons that the legal minds here present will understand far better than I do.

The noble Lords, Lord Kingsland and Lord Thomas of Gresford, in a sense, said, "Well, you have had this policy and this is a bit of a U-turn". Again, I want to be clear. At least at one level, this is a reversal of policy. Coming at this from a relatively new perspective and looking back on the decisions that were taken during the Access to Justice Act, the decisions taken were right in those circumstances. But it is important that we review the decisions to see whether they are still applicable.

The scheme that we have devised removes the slow and bureaucratic process that existed at that time. It recognises the circumstances that have changed since then, not least the number of applications for legal aid that could not have been known at that time from those who were then not applying for it. We have devised a system that will make sense. I make no apologies if that change has been made.

The noble Lords, Lord Goodhart and Lord Kingsland, also asked whether this would be a cost-saving measure. Indeed, the noble Lord, Lord Goodhart, asked the question, which I know has been around and about, about ring-fencing. I think that it was also raised in the Constitutional Affairs Select Committee. I am not a huge believer in ring-fencing because it does not give flexibility. It is necessary on occasion to ring-fence money. I do not think that we would want to move in that direction. We would want to make sure that the money is available in the pot.

As I said in my opening remarks, I am very clear that we are mindful of the way in which money can be distorted by having to be used in a particular direction. Perhaps some of the work that we would like to do for the most vulnerable in our society is not able to be done in the way in which we would currently like. So we will be very mindful of that in looking at how money is spent.

However, I should like to give a couple of figures in order to be clear about what we anticipate the scheme to do. We expect that the set-up costs for the transfer of the grant and means test is likely to be about £5 million. The ongoing annual costs are likely to be between £5 million and £9 million per year. We have calculated that the additional costs of assessing means will be offset by the reduced number of applications. On the basis of information that we have so far, we anticipate a reduction of between 10 and 20 per cent reduction in the volume of applications, which means that the volume will fall from about 650,000 to somewhere in the region of 530,000 to 570,000 applications. It will be cost neutral in terms of the administrative costs. Therefore, the estimated savings on that basis are £35 million, which is a substantial amount of money. I hope that it will be welcomed by noble Lords as money that can be used more effectively within the system.

The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, in particular are concerned about interests of justice, the linking of the two tests into one and the role of the Legal Services Commission. I am very clear that there are no issues around Article 6. As noble Lords will know, the LSC, which is separate from the DCA as a non-departmental public body, already decides on Article 6 grounds, for example, in mental health tribunals. There is no question that it is an independent body which would work extremely well.

As I have indicated, the service level agreement transfers back to court staff who currently do that work the responsibility for doing the work as of now. I would argue that the review by the court or the review appeal—whichever words most aptly fit the description in your Lordships' view—allows the court to consider how the facts match the Widgery criteria. Although those criteria are relatively new to me as a non-lawyer, I find them extremely straightforward to understand.

Our ambition is very clear. The staff currently doing this, who do an extremely good job, will continue to do it. There would be a basis on which appeal could be made. The Legal Services Commission will take very seriously anything that the courts would have to say. Therefore, this would be done in a suitable way that is very mindful of our obligations under Article 6. So, although I am sure we will debate this at length, I do not accept that there is any real concern about how this would operate, or that the staff, who currently do it exceptionally well, would continue to do so.

Noble Lords, particularly the noble Lord, Lord Goodhart, raised the question of very high cost cases. The noble Lord, Lord Kingsland, who I know is also exercised by this, wanted to know what we were doing about them. From the work we have already done on the individual case contracts, we have achieved savings of some £26.5 million in 2003–04. The savings for the current year are anticipated to be higher than that. We anticipate £35 million for this scheme, which will contribute significantly to the work we are doing.

I wanted to say a bit more about what is happening with very high cost cases. The noble Lord, Lord Kingsland, told me he wanted to raise the subject. Noble Lords will know that my noble and learned friend the Lord Chancellor has set up a review to consider the individual case contract scheme. It reported in May and, because of the negotiations with the professions, changes have been made to the scheme to ensure that it works more effectively. We are discussing with the Bar and other stakeholders what further might be done.

All parties agree in principle that existing arrangements for paying "cracks and guilties" ex post facto need to be changed, and general agreement has been reached on the replacement of the architecture of the new "cracks and guilties" scheme. Draft regulations are being shared with the professions at the moment.

There is a final area still to be discussed, which is the proposal that very high cost case solicitor advocates should be paid the same preparation rates as counsel, and the Law Society needs time to consider this proposal. No decision has yet been reached, but we are continuing to consider the issues raised by very high cost cases to ensure that suitable systems are in place.

The question of competition was raised. Consultation is under way, although I do not have details to give your Lordships at the moment. I will reply properly to the noble Lord, Lord Kingsland, on that, and place a copy of my letter in the Library.

This Bill is about tackling what has been seen as a much criticised and well recognised flaw in the legal aid system. It is a common-sense measure that fits well with the process of modernisation of the criminal justice system. It is, in short, a return to the founding principles of legal aid. I thank your Lordships for your contributions to this debate, and invite you to discuss all these issues between now and Committee. I commend the Bill to the House.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, before the Minister sits down, will she clarify one point, either today or in correspondence? How much of the figure she mentioned of £35 million in savings is due to, on the one hand, the prospect of getting contributions in the Crown Court from people who have been granted legal aid, and, on the other, the refusal of legal aid to people who would have qualified for it under the present system?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I will send the noble Lord a note rather than read it out, because it is technical. I will ensure that there is a copy of it in the Library, and that noble Lords who have spoken will get the detail of that. The noble Lord raises an important point. It is of enormous importance to me that noble Lords see the benefits of this scheme in order to be able to support it fully.

On Question, Bill read a second time, and committed to a Grand Committee.