| We support the underlying aim of the draft Criminal Defence Service Bill to control the rising cost of criminal legal aid. The rate at which Criminal Defence Service (CDS) spending has increased in recent years is unsustainable and is reducing the funds available for other important legally-aided work. The draft Bill, published in May, aims to control rising costs by transferring responsibility for the grant of criminal legal aid from the courts to the Legal Services Commission (LSC) and by reintroducing means testing. We also support the policy that those who can afford to pay for the costs of their own legal defence should do so. Despite this, before the proposals can be finalised, a number of important questions must be answered. More work is also needed to limit the practical difficulties of means testing and the transfer of grant.
In many criminal cases the interests of justice require defendants to be legally represented. The outcome of a case could have serious consequences for the defendant or their families, or representation may be needed to protect other parties such as prosecution witnesses. Legal aid plays a vital role in ensuring that those who cannot afford their own defence costs can still obtain legal representation. It also protects against unfair trials and "inequality of arms" between the defendant and the prosecution and makes it easier to protect defendants' rights.
Measures designed to reduce expenditure on criminal legal aid must not interfere with the ability of legal aid to satisfy these fundamental objectives; doing so could breach the UK's obligations under the European Convention on Human Rights. Before introducing a Bill, the Department for Constitutional Affairs (DCA) must undertake further work to ensure that its proposals are human rights compliant. A fair means testing system must be designed, which does not deny help to those who need legal representation but cannot afford to pay their own defence costs. A satisfactory and expeditious right of appeal against legal aid determinations must also be introduced.
It has been the responsibility of the courts to administer the interests of justice test since the introduction of legal aid for representation in the criminal courts. The DCA proposes that responsibility for administering the test should be transferred from the courts to the Legal Services Commission. In practice, the test would be devolved to solicitors in more serious cases, but reserved for LSC personnel in less serious cases. The DCA must consider the full costs of the proposed transfer of responsibility, the implications for delays to the criminal process and also how conflicts of interest are to be avoided.
Reconciling the conflicting imperatives of simplicity and fairness to the defendant is the greatest challenge that any means testing system must overcome. The DCA's current proposals are still a long way from achieving this. Two of the proposed means testing models would be unworkable in practice and the other could lead to successful challenges under the Human Rights Act. A substantial risk exists that means testing would cause delays, both while evidence of means is being obtained and considered and because the number of unrepresented defendants would increase if the availability of legal aid were restricted. This would run counter to a number of other, promising initiatives designed to improve the overall efficiency of the criminal justice process. Means testing would significantly increase the administrative burden on criminal defence solicitors and the Legal Services Commission. This would threaten the LSC's efforts to reduce bureaucracy for legal aid solicitors and could dissuade practitioners from undertaking legally-aided work.
The Department for Constitutional Affairs must account for the downstream cost implications of reintroducing means testing and transferring responsibility for the grant of legal aid. Without this, it is impossible to determine whether the net savings across the Criminal Justice System warrant the additional bureaucracy which these proposals would involve. Further savings could be achieved in other areas such as the most expensive criminal cases and more effective case management. The Department must also do more work to identify the main cost drivers of CDS expenditure. This would enable it to develop longer-term initiatives to target the causes of growing costs as well as short-term policies designed to tackle the symptoms. As we concluded in our recent report, Civil Legal Aid: adequacy of provision,[1] the Government needs to take a more joined-up approach to legal aid budgeting because many of the drivers of CDS spending fall outside the DCA's remit.
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