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:
- Why has there been such a large
increase in spending on criminal legal aid?
- Do the Government's proposals represent the best
way of controlling rising expenditure on criminal legal aid and
how effective are they likely to be in practice?
- How will the re-introduction of a financial eligibility
(means) test affect access to justice?
- How difficult will it be to administer means
testing in criminal cases?
- What are the relative advantages and disadvantages
of the three means test models suggested in the Government's Consultation
- Should the authority to grant the right to publicly
funded representation be removed from the courts and transferred
to the Legal Services Commission?
- Are solicitors best placed to determine eligibility
for criminal legal aid and to grant help to qualifying clients?
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".
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.
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.