Criminal Defence Service Bill [HL]

– in the House of Lords at 4:20 pm on 17th October 2005.

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Report received.

Clause 1 [Grant of rights to representation]:

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, in moving this Amendment, I shall speak also to Amendments Nos. 2, 4, 9, 14, 18 and 19.

The purpose of these amendments is to give the ministerial functions in this Bill relating to legal aid to the Lord Chancellor. The noble Lord, Lord Kingsland, raised the issue in Grand Committee of whether responsibility for legal aid should lie with the Lord Chancellor or the Secretary of State. The noble and learned Lord the Lord Chancellor has given further thought to this and has decided to relocate responsibility for legal aid with the Lord Chancellor.

While the Constitutional Reform Bill was completing its passage, the noble and learned Lord the Lord Chancellor deferred any further transfer of functions between his two ministerial posts until the contours of the reformed office of Lord Chancellor were clear. This has meant that his legal aid functions in secondary legislation made before July 2003 still lie with the Lord Chancellor. It has always been the intention of the noble and learned Lord, Lord Falconer of Thoroton, to locate all the legal aid functions in one ministerial post and, should your Lordships agree to these amendments, that will be the Lord Chancellorship. I beg to move.

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

My Lords, this matter was discussed extensively both on Second Reading and in Committee. There is no need to go over the arguments. The Minister has agreed, extremely generously, to restore to the Lord Chancellor his rightful responsibilities for legal aid matters. It only remains for me to thank her very much for doing so.

On Question, amendment agreed to.

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

moved Amendment No. 3:

Page 2, line 22, at end insert—

"( ) In paragraph 4, "Except where regulations otherwise provide" is omitted."

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, Amendment No. 3 stands in my name, together with that of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Kingsland. In moving it, I shall speak also to Amendment No. 8.

The purpose of Amendment No. 3 is not self-evident unless one looks closely at some of the background legislation which it seeks to change. It is therefore necessary for me to explain it briefly. That involves going back to the Access to Justice Act 1999, Schedule 3 of which provides for a right to representation by the Criminal Defence Service—which I will refer to informally as legal aid.

Under paragraph 2 of Schedule 3, legal aid may be granted by a court before which proceedings will take place or, indeed, by other courts as well. That power is subject to the proviso,

"except in such circumstances as may be prescribed".

Under paragraph 3 of Schedule 3, regulations may provide that the legal services provision may grant legal aid. Paragraph 4 provides that,

"Except where regulations otherwise provide, an appeal shall lie to such court or other person or body as may be prescribed against a decision to refuse to grant a right to representation or to withdraw a right to representation".

So far, in fact, the courts have been the sole source of legal aid since the 1999 Act. No regulations have been made under paragraph 3 to give power to the Legal Services Commission to grant legal aid, and no regulations have been made under paragraph 4 to restrict the right of appeal.

One of the main purposes of the Bill is to facilitate the transfer to the Legal Services Commission of the responsibility for granting legal aid. Although that decision has aroused some controversy and was opposed, for example, by the Bar, we have not thought it appropriate to oppose that particular purpose in the Bill. As explained in the framework document published in May, the Government also intended to remove a right of appeal where legal aid was refused either because of the lack of merits of the case or on the ground of the applicant's failure to meet the criteria for legal aid.

No attempt was made to oust judicial review, but judicial review was inadequate in the view of many people because the court that reviewed the decision could only either approve the decision of the Legal Services Commission or refer it back to the commission to reconsider it. That elimination of appeals was seriously criticised in debates at Second Reading and in Committee. I welcome that the Government have accepted the arguments that we made in relation to the merits test. A court can now hear an appeal and will now be allowed to consider a decision to reject an application on grounds of a lack of merit; that is, a failure to meet the interests of justice test.

However, the Government have not altered the position on the eligibility test and there will still be no appeal on that; there will simply be an administrative reconsideration. The Government try to justify that on the basis that it is only a matter of mathematics. They say that all you have to do is look at the figures and make sure that the additions and subtractions have been calculated correctly and you will inevitably come up with the right answer—all that is needed is a check on the accuracy of the calculations. In many cases that is true; but it is not true by any means in all cases. The Government's argument is highly simplistic. Many issues are more complicated than that, even on the test of eligibility. For example, the Government will provide for the aggregation of the means of the applicant for legal aid with those of his or her partner. But what is the test for partnership? That is obviously a potential matter for a court.

Again, there will be cases in which exceptional circumstances require funding for people who fail to meet the basic eligibility criteria. The Government have recognised that in their supplement to the framework document, and they will provide in regulations for special consideration of these cases but, again, without there being any right of appeal. The Government have said on page 12 of the supplement that the test is whether cases require fine judgments that warrant the intervention of the courts, but it seems to me that when one is looking at those exceptional cases it is exactly that test that is met. Those cases frequently will require the fine judgment that warrants the intervention of the courts. So we on these Benches certainly believe that there are strong grounds for saying that the right of appeal should be extended to cases where eligibility is in consideration and not just the merits.

To refuse legal aid to a defendant in a criminal case on the grounds that the defendant has failed to meet the eligibility criteria when that defendant cannot for valid reasons afford to pay for independent representation is quite obviously a denial of access to justice. This is therefore an issue of principle. The basic rule must be that a decision that may lead to a denial of access to justice should be taken only by a judge or at the least, if taken by someone else, should be subject to appeal to a judge or a court. That is particularly so in a case such as this, where the Legal Services Commission has a conflict of interests, because it has the responsibility for keeping legal aid within budget and therefore arguably has interests which potentially conflict with those of applicants.

We have therefore put down these two amendments to preserve appeals. Amendment No. 3 removes from paragraph 4 of Schedule 3 to the Access to Justice Act power by regulation to remove a right of appeal. Amendment No. 8 is consequential on this: it removes a power which would then be superfluous if the right of appeal cannot be removed. These amendments have been strongly supported in a briefing paper that we have received from the Law Society.

We believe that the Government have not yet moved enough on this issue, and that a total removal of the right of appeal on eligibility grounds cannot be justified. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team) 5:00 pm, 17th October 2005

My Lords, at Committee stage we had an amendment covering the same ground, although not as skilfully cast as that of the noble Lord, Lord Goodhart, which we have now withdrawn in favour of the noble Lord's amendment.

The noble Lord has argued his amendment with his customary cogent relentlessness and left those of your Lordships who have taken an interest in this matter with, I suspect, nothing left to add. I feel somewhat apologetic in standing here to support the amendment tabled by the noble Lord, Lord Goodhart. Not because I have any doubts about its merit, but because I am aware that the noble Baroness, throughout this Bill, with her unique combination of determination and good will, has done everything she can to meet the concerns of the opposition parties.

We have already had one illustration of her efforts with the amendment that she has tabled to substitute the "Lord Chancellor" for the "Secretary of State". Another good example is the way in which the noble Baroness and her department have striven all summer to produce a thorough and comprehensive set of regulations which set out the detailed calculations necessary to assess whether individuals will be entitled to relief not only at the magistrate's court level but also at the Crown Court level—work which was not anticipated in July but which was requested by your Lordships' House.

It is a shame, therefore, that this remarkable achievement should be overshadowed by one remaining disagreement that we have. But the issue of the application of Article 6 to the question of appeals is one that the Government have not quite grappled with to our satisfaction. We know from cases such as Alconbury that, where matters of policy are concerned, judicial review often satisfies the Article 6 criteria. However, where it is a case of the rights of the individual, review does not normally go far enough. The illustrations given by the noble Lord, Lord Goodhart, about the definitions that are contained in the admirable set of calculations that the noble Baroness has laid before us make out a sufficiently powerful case for the opposition parties standing their ground on this issue.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, with a lifelong interest in advocacy, as well as a great admiration for the noble Baroness who is to reply, I rise only to say that I am enormously interested to hear how she will address herself to the compelling case that has been made from these Benches—unless of course it is to accept it.

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

What an introduction to my remarks, my Lords. I am grateful to the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Mayhew, who have been incredibly helpful in helping us decide how to take the Bill forward. A lot of work has gone on this summer. That is why officials and I are already tired as we start the parliamentary year, but I am grateful for the acknowledgement of the work that has gone on. It has been detailed and has fulfilled my obligations to the House. I shall endeavour to persuade noble Lords at least to consider the issue one more time, because it is important that we do so. I want to reflect on the principles behind what we have sought to do.

As the noble Lord, Lord Goodhart, indicated, and expressed pleasure about, we will allow a full appeal to the court on the grounds of misapplication of the "interests of justice" test. Noble Lords will know that our original proposal, when the Bill was introduced, was that the court could consider an appeal only as if it were hearing a judicial review rather than making the decision itself. We also proposed that the court's view would not replace the original decision, but that it would be referred back to the Legal Services Commission. There were strong representations in this House at Second Reading and in Committee. We have changed our minds and our position in the light of that. As the noble Lord, Lord Goodhart, said, the supplementary framework document, which was laid before Parliament last Monday, makes our revised position clear. The court will hear appeals on the interests of justice. It will be able to consider the matter afresh, and its decision will replace that of the Legal Services Commission. I hope that that goes some way to addressing noble Lords' concern in Committee.

I undertook to bring forward amendments to clarify the process, and have done so. We do not consider that we have to make specific amendments in primary legislation, as the appeals process will be set out in secondary legislation. However, I have provided draft secondary legislation which demonstrates how the appeals process will work. I hope that it meets your Lordships' approval.

We do not accept that we should allow a full appeal to the court when an applicant alleges that there has been an error in making an assessment on financial eligibility. I have discussed that with senior members of the judiciary, who gave me permission to report to the House that I did so. They agreed with me when I met them last week—they confirmed it again to my officials this morning—that the matter is administrative rather than judicial in nature. They believe strongly that an appeal to the court would simply divert judicial resource to an inappropriate area of work. Ultimately, if the Government set the eligibility levels too low or if an individual is unable to get mistakes corrected, there is recourse to the courts through judicial review. The Government and the senior members of the judiciary agree that that affords sufficient oversight by the court. Should there be a fundamental or material change to an applicant's financial circumstances, he will, of course, be able to re-apply.

My two assertions are, first, that we have dealt with the issue of the interests of justice—to your Lordships' satisfaction, I trust—and secondly, that, in consultation with the senior judiciary, we are clear that we are talking about an administrative function best done in the way that I shall describe and that is not appropriate to be taken up by the judiciary.

Noble Lords will know that grant of legal aid is a two-limbed test—financial eligibility for legal aid, and its being in the interests of justice. If the applicant passes the "interests of justice" test, it may well be that he should be represented. The question is who should pay—the defendant or the state. We believe—it is a fundamental basis of the Bill—that those who can afford to pay for their own defence should do so. We have made it clear that, just as happens now with defendants who choose to pay for their own representation, an individual who is acquitted will be entitled to apply for reimbursement of their legal costs.

It has been put to me that there are certain circumstances in which the issues may be more complicated; we discussed them with the judiciary. For example, a defendant might choose to use the fact that he has to pay for his own defence as an excuse to defend himself, and it might be in someone else's interest for him to be represented. Provision already exists to prevent a defendant from using cross-examination of witnesses as a method of bullying. The Youth Justice and Criminal Evidence Act 1999 deals with cross-examination by the accused. Section 34 prevents a person accused of a sexual offence cross-examining the complainant in connection with the offence. Section 35 does the same in certain types of case where the witness is a protected witness such as a child. Section 36 enables the court to direct—either on the application of the prosecution or of its own motion—that the accused is not to cross-examine a witness in any case not covered by Sections 34 or 35. That would include, for example, a domestic violence case, if the quality of the witness's evidence is likely to be diminished if the accused cross-examines in person, and is likely to be improved if a direction is given, and if it would not be against the interests of justice to give a direction. Arrangements can then be made for a legal representative to do the cross-examining. That applies in both the magistrates' courts and the Crown Courts. The legislation will be unaffected by the re-introduction of a means test.

We have done the interests of justice test. We have confirmed with the judiciary that it considers it to be administrative. And I have made it clear that under the sections of the Act that I have indicated, it is possible for the courts to instruct for representation to be given because it is in the interests of the other party or the victim.

It has been put to me that situations which might affect the interests of justice test, such as an unforeseen legal point, can arise during a trial. Noble Lords who are lawyers will understand that. If that happens it will be possible to make an application during the short adjournment, when it will in any case be necessary to instruct a legal representative. We intend that the means-testing process will be very straightforward with minimal, or no evidence required to be produced at the point of application. Thus the means test will not slow down the court process. That is another reason why noble Lords felt it important to consider this issue.

It is also worth pointing out that in the Crown Court, where cases are more serious and their presentation more complex, no individual will be denied legal aid on the ground of means. Instead, if the means test is not passed, a contribution will be required as a condition of legal aid being made available.

It is important to remember that the means test will not be absolute. If an individual fails the means test, but nevertheless cannot afford to pay his legal expenses, to pick up the point made by the noble Lord, Lord Goodhart, either because the individual has unusually high living costs, or because his case is unusually expensive, he can apply to the Legal Services Commission to grant legal aid on the basis of a hardship test. In those circumstances, rather than using proxy measures, the LSC will look at the actual resources available to the individual and decide whether or not legal aid should be granted.

I think—certainly from my discussions with the judiciary—that we have covered a range of the issues that were raised on why there should be an appeal in court. It was either because the judiciary wanted it, there might be circumstances when a victim might be in some difficulty or there might be exceptional circumstances for the individual—the hardship test. I believe that we have made all those stack up. In addition, the process will be simple and straightforward. Therefore, there will be no delay in court proceedings, which is another issue that has been raised with me.

I have deliberately spent time giving noble Lords the detail of the refinements because it is important to understand how much work has gone into making sure that the system does not deny people access to justice or representation in all the circumstances within the context of the purpose of this Bill, which is to introduce a means test, and which is supported in principle by your Lordships' House.

The noble Lord, Lord Kingsland, referred me to Article 6 as a key part of the reason why he ought to support the amendment. I refer him to the Seventh Report of the Joint Committee on Human Rights on appeals, which states:

"We accept the Government's view that, given the technical nature of the decision involved in application of the means test . . . Article 6.3.c is likely to be satisfied by an internal appeal within the LSC, in combination with a right of judicial review".

The Government are right to take notice of what the Joint Committee said, and I ask your Lordships to do the same.

Let me explain why we cannot support the two amendments. Amendment No. 3, as the noble Lord, Lord Kingsland, said, would remove the existing power to prescribe cases in which an applicant cannot appeal against a decision. The noble Lord gave some of the history of paragraph 4 of Schedule 3 to the Access to Justice Act. The Legal Aid Act 1988 was replaced by the Access to Justice Act 1999. Section 21(10) of that earlier Act gave a power—not a duty—for regulations to provide for appeals.

Under the Legal Aid Act , appeals were not available in every case. On the right of review of merits decisions, appeals were not available if the individual had renewed his application, nor did the appeals process apply to certain summary offences. Furthermore, there was no right of review of eligibility decisions. An individual could only renew his application.

While it has not yet been necessary to prescribe the cases in which no appeal would be given, as the noble Lord, Lord Goodhart, indicated, the power was put there should it be needed, and we wish to preserve it. As I stated in Committee, this power would never be used to implement regulations that seek a wholesale ban on the right of appeal. The right of appeal is a fundamental element of the new system that we hope to introduce and will remain so.

It is important to be able to guard against abuse of the system; for example, if we remove it, an applicant could submit countless appeals against an unfavourable decision. We want to retain the power so that we have the ability to tackle abuse of that kind. In doing so, we are trying to be sensible and prudent, but I make it absolutely clear that we would not use it in any shape or form to seek a ban on the right of appeal. As we are simply replacing what is already in law, I hope that noble Lords will feel able to withdraw Amendment No. 3. It is a power to which your Lordships have agreed in passing the Access to Justice Act.

I have dealt with the overarching reasons why I cannot support Amendment No. 8. The decision on eligibility as regards the means test is a matter of fact rather than opinion. I have already indicated that the senior judiciary hold that view and that there are very clear ways in which we shall ensure that issues of hardship or concern for other parties will be dealt with. However, we believe that a full appeal should lie with the court only on the ground of misapplication of the interests of justice test. A suspected error in applying the test of financial eligibility would be examined by way of a review. Should the outcome of the review be that there has been an error, legal aid will be granted if the interests of justice test is satisfied. Only if the original decision is upheld will the court become involved through the judicial review process. I agree with the senior judiciary that this is a better use of the court's resources.

I believe that I have gone a long way to meeting all the concerns raised with me at Second Reading, in Committee and throughout the summer about why there may be a need for such an appeal to be given. I believe that the Government have satisfied each and every one of those in the way that we have put this matter forward. But, as always, I am willing to continue the dialogue and I could perhaps provide the opportunity for the noble Lords, Lord Goodhart and Lord Kingsland, to discuss the matter either with the judiciary, if they are willing, or with me again. I hope and believe that I have resolved all the reasons why we should leave this as it stands currently. I recognise that it is an administrative function and that, if there are errors, they will be dealt with and that, if there are exceptional circumstances, they will be taken into account. If there is any potential difficulty or danger for a victim or a witness, the power already exists for the court to do something different. I believe that in our supplementary document we have laid out the simple, clear process that the courts can administer very quickly.

I take heed of the views of the judiciary on this and what the Joint Committee on Human Rights has said in Article 6.3. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 5:15 pm, 17th October 2005

My Lords, the noble Baroness has made a very persuasive attempt to put this off one more time. I am afraid that, for a number of reasons, I do not find it possible to accept that. First, it is contrary to a principle of the House—although it is a principle that is often broken—that voting should not normally be deferred to Third Reading.

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 was making the offer because the noble Lord has, I trust, been away on a fantastic holiday and was not able to discuss these issues with me in any great detail. If the noble Lord wishes to vote, that is fine, but I believe I have answered the questions.

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, the second reason why I do not wish to delay the matter is that the noble Baroness has given no indication of any willingness to consider this issue in detail. Thirdly, if the amendment were passed by your Lordships' House, further negotiations on it would not be stopped. It would be impossible to restore to paragraph 4 of Schedule 3 the words that are removed from it, but it would be perfectly possible to discuss issues such as requiring a formal application for leave to appeal to be made so that cases that do not raise appropriate issues would not require a full hearing. Certainly I should be perfectly prepared, as I am sure would the noble Lord, Lord Kingsland, to be involved in any discussions about such issues.

Nothing that the noble Baroness has said has really gone to the root of the principle behind the matter. The views of the senior judiciary are interesting, but not, I think, binding. It is hard to see in any event why an additional flood of appeals is likely if this amendment is passed, when there is no evidence of abuse of the present right of appeal which has existed since 1999. So, I do not find that a very persuasive argument. And of course the views of the judiciary are contrary to the view of the Law Society.

There will be many cases, probably most, where there will be no grounds for changing a decision made below because such a case is simply a matter of mathematics, but, as I tried to show—and hope I did show—in moving the amendment, there will be cases on eligibility as well as on the interest of justice that need judicial consideration. It is plainly appropriate that it should happen. Therefore, I shall seek the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 145; Not-Contents, 137

Division number 1 Private Parking: Ports and Trading Estates — Criminal Defence Service Bill [HL]

Aye: 143 Members of the House of Lords

No: 135 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

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

moved Amendment No. 5:

Page 3, line 6, after "Regulations" insert "shall make provision for exceptions from sub-paragraph (1) or (2)(a) if the interests of justice so require and"

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, under sub-article 3(c) of Article 6 of the European Convention on Human Rights, anyone charged with a criminal offence who cannot pay for a lawyer has the right to free legal assistance

"when the interests of justice so require".

That is something I believe is right in principle. We on these Benches were concerned that the Bill as drafted might restrict that right.

Since the Committee stage, the Government have taken a number of constructive steps. First, the original version of Clause 2(4) provided that,

"The grant of a right to representation shall be taken to be in the interests of justice in such circumstances as may be prescribed".

That formula could have been used negatively as well as positively; that is, anything not in the regulations would not have been regarded as being in the interests of justice. The Government, by their Amendment No. 11, have replaced these words with words that appear to be incapable of being used to restrict the definition of the interests of justice. That new wording seems to rely on a helpful suggestion made in Grand Committee by the noble and learned Lord, Lord Mayhew of Twysden.

Secondly, the Government have stated, in the recent supplement to their framework document, that the courts will have power to decide on appeal what is in the interests of justice, not merely to review that. Thirdly, the Government will make provision for exceptional cases that would not otherwise satisfy the eligibility rules. I accept that in this case the Government have moved a reasonable and acceptable distance. It is therefore my intention, having moved this amendment, that, after the debate, I will beg leave to withdraw Amendment No. 5, and will support the Government's Amendment No. 11. I beg to move.

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

My Lords, I share entirely the sentiments of the noble Lord, Lord Goodhart, and thank the Government for meeting the various points made with respect to this issue in Committee.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, if it be indeed the case that I was of any help to the Government in producing their amendment, it is only appropriate that I should express my humble thanks.

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 and learned Lord, Lord Mayhew, was very helpful. Indeed, he was the only noble Lord I was going to mention by name for his contributions in Committee. I am not sure that my speaking notes now work at any level because of what the noble Lord has said, so I will just briefly explain the purpose of Amendment No. 11.

As noble Lords have said, there was concern about our proposed amendment to paragraph 5(4) of Schedule 3 to the Access to Justice Act 1999; in particular, as the noble and learned Lord, Lord Mayhew, has indicated, that the proposed wording would make it easier for the Government to restrict the circumstances in which the grant of a right of representation should be taken in the interests of justice. I tried to reassure noble Lords in Committee that it was not our intention to restrict the interests of justice test, and, in order to reinforce that commitment, and to provide further reassurance, we have tabled Amendment No. 11 to give greater clarification around that paragraph. I hope that I have succeeded, which seems to be the case, and that noble Lords will feel able to withdraw their amendments in support of Amendment No. 11.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

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, as noble Lords will have noticed, as the Bill is currently drafted, the granting authority would have no option but to withdraw the right of representation where the applicant has failed to comply with regulations about the furnishing of information. The amendment I am now proposing would allow regulations to make exceptions to the provision on withdrawal.

It might assist the House if I explain why this amendment is being brought forward at this time. We recognise that, in some circumstances, information that is considered quite reasonable for the granting authority to require will not be essential in determining an applicant's financial eligibility. In these situations, it seems sensible to remove the automatic obligation on the granting authority to withdraw the right of representation. The obvious example might be if the applicant forgot to put their postcode on the form. However, I stress that we are not removing the power to withdraw the right to representation in those cases where it might be proper and correct to do so.

I hope, on the basis of what I have indicated, that your Lordships will feel able to accept this amendment. I beg to move.

On Question, amendment agreed to.

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

moved Amendment No. 11:

Page 3, leave out lines 22 and 23 and insert— "

(4) Regulations may prescribe circumstances in which the grant of a right to representation shall be taken to be in the interests of justice."

On Question, amendment agreed to.

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

moved Amendment No. 12:

Page 3, line 23, at end insert—

"( ) In section 25 of that Act (orders, regulations and directions), after subsection (9) there is inserted—

"(9A) The first regulations under paragraph 3B of Schedule 3 shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.""

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, in moving Amendment No. 12, I shall speak also to Amendment No. 17. Those of your Lordships who were present in Committee will recall that I signalled the Government's intention to table amendments on Report to ensure compliance with the recommendation of the Select Committee on Delegated Powers and Regulatory Reform.

The two amendments concern paragraph 3B of Schedule 3 to the Access to Justice Act 1999, which refers to financial eligibility and Section 17A of that Act, regarding contribution orders. In both cases, the amendments will ensure that the first regulations under those statutory provisions will be subject to the affirmative resolution procedure. As the Government give considerable weight to the views of the Delegated Powers and Regulatory Reform Committee, I trust that your Lordships will also feel content to support the amendments. I beg to move.

On Question, amendment agreed to.

Clause 3 [Rights to representation: contribution orders]:

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 move the amendment in the absence of my noble friend, who is unfortunately detained by his duties in court and has been unable to get here. The noble Baroness will, I am sure, be pleased to hear that it is no more than a probing amendment, which we tabled at the request of the Law Society.

We welcome in principle the reintroduction of the means test for criminal legal aid in the magistrates' courts and, in due course, in the Crown Court. As it happens, the application of the means test to the Crown Court has come more quickly than was originally anticipated and raises one or two questions that need answering. In particular, Crown Court cases are much more expensive than cases in the magistrates' courts. Even in the magistrates' courts, there are already problems with people who need representation but are unable to pay for it, even if the cost is no more than £500. That is only the average cost of a case under legal aid; it is not the maximum cost under legal aid. In any event, if an independent counsel or solicitor has to be appointed, the costs are likely to be considerably higher than they are under legal aid. So, significant amounts of money are involved. It will, of course, be much more acute in the Crown Court. I was wondering whether any research had been done into what the average cost of a privately funded Crown Court case is likely to be. That will be significant in deciding a reasonable level for the means test.

If the means test is set too high, there will, as the noble Baroness has pointed out, be a corresponding increase in the number of unrepresented defendants who have the right to cross-examine their victims in court. That has been a cause of considerable stress to witnesses in the past, and it is not something that we wish to see increased. What information do the Government have on what they anticipate the average cost of privately funded defences in the Crown Court to be? If they do not know, they certainly should know before they get around to fixing the level at which the means test is to be applied. Can the Government confirm what their plans are for ensuring that we do not end up with a significant number of unrepresented defendants being allowed to cross-examine victims in person. I beg to move.

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

My Lords, I understand the concerns expressed by the noble Lord, Lord Goodhart. In an ideal world, it is always desirable to put the horse before the cart. If one had a thorough knowledge of the costs of Crown Court proceedings at one's fingertips with regard to the various sorts of prosecution that arise in those courts, accurate assessments of cost contributions would be easier to make. Nevertheless, I applaud the speed with which the Government have reacted to concerns expressed by Members of your Lordships' House in Committee last July and brought forward what I consider, in the circumstances, to be a well thought-out approach to the problem of Crown Court costs relating both to income and capital contributions.

There is much more work to be done, and I know that the Government freely acknowledge that. Nevertheless, the Government are moving in the right direction in an area that inevitably, as the noble Lord, Lord Goodhart, said, raises greater complications than cases in magistrates' courts.

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 am grateful to the noble Lord for explaining what lies behind the amendment. In the Crown Court scheme that we propose, we are not barring legal aid because of means; instead, we are looking for contributions. So, there are fundamental differences in the way in which we approach the matter. My understanding is that there are so few cases of the type that the noble Lord described that is quite difficult to do research. However, we have already indicated in a supplementary document that, in any event, before we move forward on particular schemes, we will consult widely. Hence, our request for your Lordships to agree the principles behind what we are doing and to recognise that, when we introduce regulations, as we will for the magistrates' courts, they will reflect that consultation.

Having checked this with our legal advisers, I must say that what the noble Lord seeks to achieve with the amendment is already covered in the Bill. The phrase "in prescribed circumstances" gives the discretion that the noble Lord seeks with the amendment. We do not impose any duty to make regulations stating when a contribution shall be made; we merely grant a power to do so. We have already indicated that the first set of regulations will be subject to affirmative resolution in Amendment No. 17. As I have said, there are no plans to make contribution orders in a magistrates' court. Having the phrase "in prescribed circumstances" allows us to introduce the de minimis rule.

We have a scheme that would enable contributions rather than obliging people to pass a means test in the Crown Court. With regard to the means test in the magistrates' court, there is the flexibility to make sure that we consult widely. In the course of doing so, we will take on board what the noble Lord, Lord Kingsland, said about the variety of cases. Specifically, because it is dealt with in regulations, we have the opportunity, as I said at Second Reading, to correct any concerns raised in the course of the operation of the scheme. Debate on later amendments will enable us to think through how we put it into operation.

I think that I have answered the noble Lord's point. I will check and, if need be, I shall write to him.

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 answering in her usual open and efficient manner. As I said, it was a probing amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

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

moved Amendment No. 15:

Page 4, line 27, at end insert—

"( ) Regulations under subsection (1) shall provide that an order made under the regulations may not order the payment of costs to the extent that they are already the subject of an order under section 17(2)."

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, this amendment mirrors an earlier amendment to Section 17 of the Access to Justice Act. Briefly, I shall explain to your Lordships' House why the amendment is necessary. Section 17 of the Access to Justice Act allows for recovery of defence costs orders to be made against defendants. The assumption is that they will be made at the end of the case. However, the Bill introduces a new Section 17A, which enables the granting authority to require legally-aided defendants to make contributions towards their legal costs. We would ordinarily expect contribution orders to be made at the start of the case. In addition, the Bill also amends Section 17, so that a defendant does not have to pay twice where a contribution order has been made at the outset and a recovery of defence costs order at the end.

That said, it is also possible, for example, that a contribution may fall due after a recovery of defence costs order has been made. We need to avoid double recovery in those circumstances, and this amendment provides accordingly. I should stress that those arrangements do not mean that a defendant could not be made subject to both orders in order to recover defence costs incurred by the individual. However, it would be unconscionable for both a contribution order and an RDCO to bite if their combined effect means that the defendant has to pay more than the total costs of his defence. I hope that in light of that explanation noble Lords will be able to support this Government amendment. I beg to move.

On Question, amendment agreed to.

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

moved Amendment No. 16:

Page 4, line 27, at end insert—

"( ) Regulations under subsection (1) may—

(a) be made so as to have effect only for a specified period not exceeding 12 months;

(b) provide that their provisions are to apply only in relation to one or more prescribed areas."

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, as noble Lords will recall, in Committee, I undertook to provide the House with details of the means testing model being developed for the Crown Court. The scheme is laid out in the supplement to the framework document, which I think noble Lords have received with pleasure. As we make clear, it will require the defendant to make an income-based contribution to his defence costs. It is our intention to consult fully on the precise method through which this contribution should be collected; either as a single up-front payment or as a regular contribution through the life of the case.

I am sure that your Lordships would also agree that there are clear benefits to be obtained from thoroughly testing the scheme on the ground. It is for this reason that the Government wish to take the power to pilot before any wider national rollout. I hope that I can rely on your Lordships' support for this amendment. I beg to move.

On Question, amendment agreed to.

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

moved Amendment No. 17:

Page 4, line 29, at end insert—

"( ) In section 25 (orders, regulations and directions), in subsection (9A) (inserted by section 2 of this Act), after "under" there is inserted "section 17A or"."

On Question, amendment agreed to.

Clause 5 [Short title, commencement and extent]: