Select Committee on Constitutional Affairs Fifth Report

1 Introduction

The draft Bill

1. Total expenditure on legal aid has risen by about £500 million since 1997/98 to over £2 billion in 2003/04. It accounts for almost two-thirds of the Department for Constitutional Affairs' entire budget. Over half of this £2 billion is spent on criminal legal aid, the cost of which has risen significantly in recent years. The proportion of the total legal aid budget spent on criminal legal aid has also grown.

2. The Queen's Speech in November 2003 included the announcement of a draft Bill on the Criminal Defence Service.[2] The Draft Criminal Defence Service Bill: Consultation Paper and Explanatory Notes was presented to Parliament in May 2004.[3] The draft CDS Bill is one of a number of initiatives, introduced by the DCA, designed to address the increasing cost of criminal legal aid. Other measures have included restricting the availability of police station advice as well as a range of measures which aim to address the disproportionate cost of the most expensive criminal cases.

3. The draft CDS Bill outlines two basic policies:

  • the transfer of responsibility for the grant of criminal legal aid from the courts to the Legal Services Commission; and
  • the reintroduction of means testing for criminal legal aid.

The detail of these policies is not, however, contained in the four clauses of the draft Bill. It is proposed that this will be left to secondary legislation and documentation issued by the Legal Services Commission, drafts of which have not yet been published.

4. Instead of presenting a set of finalised proposals to Parliament, the Department has chosen to publish a Consultation Paper alongside the draft Bill. This aims to explain the background to the basic policies; suggests a number of ways in which these policies could be implemented; and seeks responses from stakeholders to a number of important, outstanding questions. The deadline for responses is 6 August 2004.

Our inquiry

5. The documentation published in May illustrates that the Department has a long way to go before finalising the current proposals. This has affected our approach to the scrutiny of the draft CDS Bill. Our inquiry did not focus on the content of the four clauses of the draft Bill, but instead posed questions which the Government will need to answer before finalising its proposals and introducing a Bill before Parliament. The questions on which we initially sought written evidence were as follows:

A number of additional questions which the Department will need to answer before introducing a Bill have arisen during the course of our inquiry. These are set out later in this report.

6. Because the draft Bill does not contain the detail of the current proposals, which would instead be set out in secondary legislation and in the General Criminal Contract issued by the Legal Services Commission, we recommend that prior to the introduction of a Bill a draft of the secondary legislation should be published for consultation. The structure of our inquiry and report has been affected by this lack of detail. Instead of scrutinising a finalised set of proposals, our inquiry and report have focused on posing questions which the Government will need to address before introducing a Bill.

7. We do not question the underlying objectives of the draft Bill. Although criminal legal aid is a vital way of ensuring access to justice and safeguarding defendants' rights, spending on criminal legal aid must be brought under control. The growth in spending over recent years is unsustainable and, as was highlighted during the course of our recent inquiry on civil legal aid, increased spending on criminal legal aid has eroded the budget available for civil legal aid. The current proposals indicate that the Department is trying to address the pressing need to control CDS expenditure. We welcome this. We also accept the basic position that defendants who can afford to pay for their own legal defence should do so. As the Department has explained, this "has always been the will of Parliament and [is] a cornerstone of the Department's legal aid policy".[4] The overall aim of our inquiry has been to identify further work which is needed before these proposals are finalised and to highlight their practical implications.

8. We acknowledge that the rising cost of the Criminal Defence Service must be addressed and commend the Department for Constitutional Affairs for attempting to achieve this. We agree with the principle that defendants who can afford to pay their legal costs should do so. Nevertheless, the Consultation Paper leaves a number of key questions unanswered and we are concerned that reintroducing means testing in the ways proposed could give rise to practical difficulties which outweigh any cost savings likely to be achieved.[5]

9. We were keen to report on the draft CDS Bill in good time to enable the Department to take account of our conclusions and recommendations when finalising its proposals and before introducing a bill. This limited the time available for our inquiry and also meant that the inquiry ran in parallel to the Government's own consultation. Despite this, we received written evidence from a number of key stakeholders, listed on page 73. We also held three oral evidence sessions, which included taking evidence from the Parliamentary Under Secretary of State for Constitutional Affairs, Mr David Lammy MP, and Clare Dodgson, Chief Executive of the Legal Services Commission.

10. We are grateful to our two specialist advisers during the inquiry: Professor Ed Cape, of the University of the West of England, and Professor Richard Moorhead, of Cardiff University. We would also like to thank the Joint Committee on Human Rights for providing us with their comments on the human rights implications of the draft Bill, published as an Appendix to this report.

2   Her Majesty's Most Gracious Speech to both Houses of Parliament, Delivered Wednesday 26 November 2003: "A draft Bill will be brought on the Criminal Defence Service" Back

3   Draft Criminal Defence Service Bill Consultation Paper and Explanatory Notes, Department for Constitutional Affairs, Cm 6194 (hereafter referred to as the Draft CDS BillBack

4   Draft CDS Bill, para 2 Back

5   See paras 137-161 below Back

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Prepared 27 July 2004