House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Fifth Report

4 Transfer of grant of representation

47. The draft CDS Bill proposes that the power to grant the right to publicly funded criminal legal representation be transferred from the courts to the Legal Services Commission. The courts, especially magistrates' courts, would cease to be responsible for applying the interests of justice test and for granting representation orders. Neither would they be responsible for applying the proposed means test.

Who would decide about the grant of legal aid?

48. During the course of our inquiry, we have encountered confusion about who, in practice, would decide whether publicly funded legal representation should be granted. The Consultation Paper states that:

"The policy intention behind the Bill is to enable the power to grant a right to representation to be transferred from the courts to the LSC. The effect of this in operational terms will be that applications for public funding will be made to the Commission. In real terms the LSC will delegate the authority to grant to solicitors with a General Criminal Contract (GCC) in the most simple cases."[56]

Most of our witnesses have taken this to mean that, in practical terms, solicitors would make grant determinations. The LSC's submission, however, explains that:

"For 'summary only' offences and less serious 'either way' offences, the funding decision would be made by fully trained LSC staff. We anticipate requiring all solicitors to submit their applications through LSC online which is an electronic transfer of data. Provided all the information has been given within the application we would expect to guarantee a decision within 24 hours in all cases except appeals."[57]

49. In oral evidence to the Committee, the Minister sought to explain this apparent inconsistency as follows:

"I saw some confusion, when I read the transcript last, about, if you like, serious cases in terms of the interests of justice cases: murder cases, rape cases, cases where there had been a riot. Ironically, despite the fact that the public would see those as extremely serious cases, those are the very cases that are easy to administer because it is fairly clear that interests of justice test is met, that those are imprisonable offences, and then to go on to the means question. So that is fairly straight forward for a solicitor. There are, however, more difficult cases, shoplifting might be one, that might lead to a custodial sentence, or, indeed, may not, and, in those circumstances, the solicitor would be able to move those up to the LSC."[58]

This does not, however, explain whether the Legal Services Commission would apply both the merits test and the means test in those cases which are most complicated "in terms of the interests of justice."

50. Although the exact role of the LSC in making grant determinations is unclear, the fact that the LSC would have ultimate responsibility for grant is not doubted. Neither is there any doubt that, in some cases, this responsibility would be delegated to solicitors who would be responsible for making decisions.

Who should make grant decisions?

Budgetary control

51. The Department's proposal to transfer responsibility for grant is partly justified on the basis that:

"Grant of public funding is not the core business of the courts who are rightly focused on the administration of justice. Courts are not and cannot be expected to be responsible for the monitoring and controlling of publicly funded expenditure."[59]

In its 2002/03 Annual Report, the LSC similarly commented that:

"CDS spend is significantly driven by factors outside of the Commission's control. For example, we are not responsible for the grant of representation in criminal cases. The magistrates' courts make those decisions. Changes recently made to their granting of legal aid contributed directly to an increase in CDS spend."[60]

This general desire to obtain control of grant determinations was also emphasised in evidence to us. We were told that "we should put the responsibility with the accounting officer, not with the judges, who after all, if you like, have not got the fixed budget in front of their eyes."[61]

Arguments against transfer

Expertise of the courts

52. Both the Magistrates' Association[62] and the Justices' Clerks' Society[63] oppose the proposal to transfer responsibility for grant, arguing that the courts should continue to apply the interests of justice test. Lord Justice Judge supported this, telling us:

"We are supposed to represent the interests of justice in everything we do. That is our job and that is the job of magistrates and justices' clerks when they are exercising their judicial functions. I suspect we are a better judge of the interests of justice than anybody else."[64]

53. A number of other witnesses also commented that it is most appropriate for the courts to retain responsibility for applying the interests of justice test. The Bar Council went as far as to state that:

"the courts—and not an executive agency—must exercise the right to determine what is in the interests of justice. This is, in essence, a judicial function. As a matter of constitutional principle, questions of representation in criminal cases—where the state brings charges against an individual citizen—ought to be determined by the judiciary and not the executive."[65]

54. Roy Morgan of the Legal Aid Practitioners' Group expressed concerns about the transfer, based on the greater experience of the courts:

"Were the matter to pass to the Legal Services Commission, there are initial concerns with that. The magistrates' court generally uses clerks to deal with the interests of justice test. They are clerks who have either been in private practice in the past at some time or who have day to day experience of seeing defendants and representatives before them, and they have the experience of understanding a defendant and a defendant's case—and the prosecution case, for that matter. The Legal Services Commission would use, to be blunt, an administrator who has probably … never seen the inside of a court room or a police station or a solicitor's office or has never been confronted with a client before, so there are reservations there."[66]

55. The LSC and the DCA sought to counter these arguments on the basis that: (A) most grant decisions are made by administrators within the court, rather than by the courts;[67] (B) the LSC employs "a number of expert lawyers";[68] and (C) solicitors, who would in practical terms apply the test, already have expertise of applying the interests of justice test in the context of civil legal aid.[69] Although solicitors undertaking civil legal aid work have experience of applying a significantly different interests of justice test, most individual criminal solicitors specialise in criminal law. They would not, therefore, do civil work and would not have had personal experience of applying the test.

Multi-defendant cases

56. Cases involving multiple defendants have been used to illustrate the argument that courts are best suited to make decisions regarding the grant of legal representation. In particular because of the overview of cases available to courts, they may decide that there is no conflict of interest between defendants and, accordingly, that a number of defendants can be represented by a single solicitor or barrister. It would be difficult for such decisions to be made by individual solicitors making grant decisions on behalf of individual clients.

57. The Minister sought to counter this argument on the basis that "I am not sure that that is entirely the same point in terms of the multi-handed cases as the granting of legal aid on the issue".[70] It is exactly in the context of deciding whether or not to grant representation orders that courts make decisions about the number of lawyers needed in a multi-defendant case. If responsibility for making legal aid determinations were removed from the courts it is not clear in what context the LSC or solicitors would be able to make such decisions. Accordingly, one result of the proposals would seem to be that no-one with an overview of the case, and an understanding of the possibility for conflicting interests between defendants, would be able to make decisions about the number of lawyers needed in multi-defendant cases. This could, in fact, lead to an increase in the number of representation orders granted, which conflicts with the underlying aim of the transfer.

Controlling court efficiency

58. We have also been told that decisions as to whether or not legal aid is granted can have a significant impact on the courts and on efficient case management (discussed at paragraphs 150 and 176 to 177 below). Robert Brown of the Criminal Law Solicitors' Association explained:

"It seems to us that the institution which really has the vested interest in dealing with cases efficiently is the court. The court is the body that has to deal with the case and, if they have the power to grant or refuse a representation order, they have an interest in dealing with it efficiently. If there is a problem or a log jam or cases being held up because the application for a representation order has not been dealt with, there is someone in the court that can tell the legal aid clerk in the court to sort it out, which is what has always happened and happens now, rather than place it in some other location away from the court because it is the court, after all, that wants to get on with the case."[71]

The DCA's 2003/04 Annual Report, illustrates how central an efficient court system is to the Government's overall strategies with respect to the Criminal Justice System.[72]

Conflicts of interest

59. The potential for the transfer of grant to give rise to serious conflicts of interest has been cited as a major argument against transfer by a number of our witnesses. JUSTICE explained that "both providers and the funder of services may have a variety of interests contrary to those of individual defendants".[73] We have been told that these conflicts could threaten the rights of defendants and the envisaged savings to criminal legal aid expenditure.

60. The Justices' Clerks' Society warned that transfer could lead to a potential conflict of interest between the solicitor's duty to act in the best interests of their client and the pressure to reduce public expenditure, imposed by the LSC under the terms of the General Criminal Contract:

"The Society is also concerned that, if it is intended that solicitors will deal with the majority of all decisions as to the grant of criminal legal aid, it must inevitably lead to a potential conflict of interest for the solicitor. He or she has to act in the best interests of their client and on the basis of the information provided by their client. To impose on a solicitor the requirement to determine whether a grant is in the interests of justice may inevitably lead to a conflict between the duty he or she owes to the client and the requirement to reduce public expenditure. It is not clear from the paper how this system will operate."[74]

61. On the other hand, we have been told that grant determinations by solicitors could be informed by their own business concerns. Lord Justice Judge, for example, commented that "the purse strings … will be involved in the decision"[75] and the Law Society expressed similar concerns:

"The Consultation Paper suggests that where the interests of justice are not satisfied or the individual's means are such that he or she is ineligible for public funding, the solicitor will be able to advise the individual whether to proceed by privately instructing that solicitor or by representing himself. The Law Society thinks that such a proposal presents an unacceptable conflict of interest between the solicitor and the client."[76]

When asked whether responsibility for grant should be transferred to solicitors, Neil Clarke of the Justices' Clerks' Society explained:

"it depends what legal aid and representation orders are about. If they are about the protection of the individual's rights under the law…then giving it to the people who are financially involved within it does seem to have a little bit of a flaw, to somebody looking from the outside."[77]

62. When asked about these concerns, the Minister denied the risk of conflicts of interest.[78] Given the weight and consistency of the evidence we have received regarding the danger that conflicts of interest would arise from the transfer, this is not a satisfactory response. In the context of criminal proceedings, the impact of such conflicts could be serious for the defendant.

63. Conflicts of interest are likely to have a significant impact in less serious cases, where it may be unclear whether the interests of justice require a defendant to have legal representation. As discussed at paragraphs 48 to 50 above, it is suggested that the LSC would make legal aid determinations in such cases. While this would reduce the concern regarding solicitors' conflicts of interest, it could create a perception that the LSC is making these difficult decisions based on a desire to reduce costs.

Public perception

64. The Bar Council has also argued that defendants would have less faith in legal aid determinations if they were made by solicitors: "The court has no financial interest in the outcome of a legal aid application. Accordingly, judicial determinations of the [interests of justice] test currently have the confidence of applicants".[79] The Legal Aid Practitioners' Group commented that the transfer could create the perception that "lawyers were being allowed to 'write their own cheques' with taxpayer's money"[80] and the Bar Council expressed concerns that the proposal "would seriously undermine the solicitor-client confidence which is at the heart of administering justice".[81]

Asylum appeals

65. There appears to be inconsistency within the Department regarding whether the LSC or the courts are best placed to make determinations as to the grant of legal aid. In relation the provisions of the Asylum and Immigration (Treatment of Claimants, etc) Bill, dealing with the unification of the appeals system, the Lord Chancellor has moved an amendment at Committee Stage in the House of Lords, which would introduce a new Section 103D to the Nationality, Immigration and Asylum Act 2002. This would, inter alia, give the Government a new power relating to the funding of review applications in the High Court and subsequent reconsideration proceedings. The Lord Chancellor stated that "this will ensure that we are targeting the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, we will provide the judiciary with the power to order that legal aid is paid in these proceedings."[82] This suggests that, in the context of asylum appeals, the DCA considers the courts to be better placed to make legal aid determinations than the LSC, which is contrary to the proposal in the draft CDS Bill.

Current administration

66. In support of its proposals, the Department has cited a number of shortcomings in the administration of the current system by magistrates' courts. These include that magistrates have been "certainly inconsistent, in applying the interests of justice test";[83] that "there is some evidence that courts have been too favourable to defendants";[84] and that "there is also some evidence that the [interests of justice] test has not been applied rigorously in all courts".[85]

67. Both the Justices' Clerks' Society and the Magistrates' Association have denied these criticisms and argued that they are unsubstantiated.[86] We only received anecdotal evidence as to failings by magistrates' courts in applying the interests of justice test.[87] Neil Clarke of the Justices' Clerks' Society told us: "We are quite happy to be tested and have the point established rather than just saying generally 'You are doing it badly because we think you are'."[88] A number of other witnesses told us that they are surprised by the absence of concrete evidence to support the criticism of current court practice. The Legal Action Group, for example, commented that it was "surprised that no concrete evidence has been presented by the DCA in support of this view".[89]

Inconsistency

68. The Consultation Paper states that "transferring to the LSC the power to grant representation will enable the LSC to use modern management tools to control expenditure, ensuring a consistency which does not normally happen".[90] This was reiterated in oral evidence:

"One thing I could say, though, is that if we do move to the Commission running this we will have more much more consistent and comprehensive management information. At the minute we have got a fragmented system which is operating inconsistently. We would be able to have a grip on the management information and, very quickly, almost live time, we will be saying, 'Hang on a minute, there is a variation here that is inexplicable. Let's go in and understand what is happening here.'"[91]

69. In response to the criticism that the courts have been inconsistent in applying the interests of justice test, the Justices' Clerks' Society commented that:

"prior to 2001, there was no criticism of the way in which the interest of justice test was dealt with by the courts … the same people were responsible for considering the interests of justice test before and after 2001. If these individuals have been inconsistent since 2001, it is inconceivable that they were not equally inconsistent prior to 2001."[92]

Figures provided by the DCA indicate that the percentage of applications for representation refused by magistrates' courts has remained relatively constant at between 4 and 5% since 2000 (Figure 3: Refusal Rates, below).

70. The Judges' Council has questioned the claim that greater consistency will result from the transfer:

"There is a far greater risk of inconsistency and of decisions unduly favourable to defendants if responsibility for the grant of legal aid is transferred, through delegation by the LSC, to a large number of solicitors with General Criminal Contracts. The greater the number of decision-makers, the greater the scope for variations of approach."[93]

Lord Justice Judge told us "I do not see solicitors—will there be 1500 of them—are going to produce anything more consistent than is produced in magistrates' courts up and down the country".[94] The Bar Council also commented that it is "far from obvious how it will cost less in the hands of those thousands of solicitors rather than 150 court centres. We fear that it would have the effects of even greater inconsistency".[95]

71. When asked about the risk of greater inconsistency arising from the transfer, the Minister told us that "this will effectively be under contract. You strike a national contract, as it were, with individuals. There is much more accountability, much more auditing."[96] Clare Dodgson explained that "we will have strict criteria and protocols for taking these decisions. We have regularly issued guidance because there has been inconsistency, and we know that."[97]

72. Other witnesses have questioned the meaning of the "modern management tools", which the Consultation Paper argues could be applied to solicitors to improve consistency.[98] It is also unclear why these modern management tools could not be applied equally to courts.

Generosity to defendants

73. The Consultation Paper states that "one of the reasons for the increase has been the apparent willingness of the courts, especially magistrates' courts, to grant representation orders".[99] It also states that "there is some evidence that courts have been too favourable to defendants"[100] and that "the [interests of justice] test has not been applied rigorously in all courts".[101]

74. Mr Clarke of the Justices' Clerks' Society told us:

"We have been audited regularly and there is no empirical data to say that we are ridiculously generous, just a belief that we are because [CDS spending] is increasing all the time."[102]

Less knowledge of defendants

75. The DCA has commented that solicitors are better placed to make decisions about eligibility for legal aid than courts, which it argues "currently [make such decisions] solely based on the application and the often incomplete case papers available at the time".[103] The Consultation Paper also states that, as a solicitor is instructed to represent their client's interests from the outset, "this gives the solicitor greater insight in considering the question of grant of criminal public funding".[104] The Justices' Clerks' Society responded, that "it is not clear what is meant by the word 'circumstances' in this context" and explained that the circumstances of the case are currently disclosed by the solicitor in the application for a representation order.[105] There is also some inconsistency regarding this justification since, as explained earlier, the LSC has indicated that in less serious cases the interests of justice test will actually be applied by LSC officials. These are precisely the kinds of cases where, according to the argument put forward by the DCA, solicitors would be best placed to make decisions.

Financial and administrative impact

Estimated savings

Reduced courts costs

76. The Consultation Paper explains that the "grant of public funding in magistrates' courts constitutes on average 4.4% of the cost of administering criminal cases through the courts" and estimates that removing this responsibility could save an estimated £9 million a year.[106] It does, however, acknowledge that this figure is not accurate given that it does not include fixed assets, which would not be affected by the transfer of grant, and does not reflect the fact that many individuals involved in the grant are not dedicated exclusively to this task.[107] This was confirmed by the Justices' Clerks' Society who told us that "there is not a great tranche of people who would be subject to TUPE [Transfer of Undertakings (Protection of Employment) Regulations 1981] were this [responsibility] to go elsewhere; it is part of the general administration of the court".[108]

Reduced grants

77. A further point concerns the impact of transferring the interests of justice test on the number of representation orders granted. The transfer is described as "part of a raft of measures aimed at gaining better control over grant because expenditure on criminal representation has been increasing in a seemingly uncontrolled manner".[109] The Consultation Paper does not, however, estimate what impact the transfer would have on the number of representation orders granted and on the overall cost of criminal legal representation. The Legal Action Group commented that it would have expected the DCA to provide "quantification of the impact of the number of orders granted as a result of the transfer of decisions to the LSC".[110]

78. We have received evidence suggesting that the impact is likely to be small. Lord Justice Judge commented that "I do not think this process of changing who decides whether or not legal aid should be granted is, in reality, going to save very much money".[111] The Law Society also made the point that:

"it is unclear whether or not this will lead to a subsequent reduction in the number of representation orders and therefore reduce the cost to the criminal legal aid budget. The interests of justice test will remain the same and therefore we would predict that there is unlikely to be a significant reduction in the number of representation orders granted."[112]

Downstream costs

Solicitors

79. JUSTICE wrote that "the [Consultation] paper suggests that the courts will make saving of some £9m by transferring this task to solicitors. It would appear somewhat cynical to transfer this to solicitors on the basis that they will undertake it for free."[113] The LSC suggested that solicitors may expect to be paid, depending on the means testing model adopted:

"The additional work generated for solicitors through models one and three may lead to remuneration issues, with the profession contending that this is new work for which they expect to be paid, so reducing any anticipated savings. We believe that the simplicity of model two would lessen both of these risks."[114]

When asked whether it was intended that solicitors would be paid for making grant decisions, the Minister indicated that this had not yet been decided:

"We are consulting. They will no doubt indicate how they feel about this. What I would say is that I would expect the scheme that would come forward to be simple in application and to be part of the general contract."[115]

The cost of any payments to solicitors has not been taken into account in the Consultation Paper.

80. The Partial Regulatory Impact Assessment estimates that the cost involved for solicitors from the proposals "will be up to £1,000 per supplier".[116] This seems unrealistically low given the substantial impact means testing would have on the workload of solicitors (discussed at paragraphs 137 to 140 and 143 to 145 below); the fact that collecting contributions would increase the banking and accounting requirements of many firms; and the suggestion that solicitors would need to acquire and maintain IT systems to enable them to submit funding applications to the LSC in some cases. Furthermore, this estimate does not reflect the continuing cost implications of these additional responsibilities for solicitors.

The Legal Services Commission

81. The Partial Regulatory Impact Assessment also accepts that the transfer of grant will have cost implications for the LSC:

"The Legal Services Commission has estimated that the transfer of grant to their control would cost about £800,000 to set up with the running costs of £400,000 a year. Start up costs include staffing costs, IT development, recruitment, training and equipment."[117]

82. We received evidence about the volume and speed of the work that the Legal Services Commission would be required to undertake if it were to assume responsibility for grant, particularly if it were to make determinations itself in some cases. Rodney Warren of the Law Society said:

"there is a similar process that operates now in terms of civil law actually for the grant of some types of legal aid order … We are talking here about a much bigger process potentially. I do not know what the numbers of applications would be, but they would be great. Of course court hearings these days come very quickly after charge, so the time available to undertake this process is very limited. Very often a defendant will be in court within three days of charge and so the time for turnround has to be quick to enable it to operate. I would be very keen to see exactly how they would propose that this would operate effectively."[118]

83. When asked what the LSC would have to do if it assumed responsibility for grant, Clare Dodgson explained that:

"There are a number of things we would be able to do if … these options were brought in. Firstly, we would propose setting up two dedicated process centres; so that would maximise the use of technology, e-mail, telephones and so on … we could have a team of experts who specialise, say, in family or in different areas of criminal law… We could also invest more effectively in staff training and development… we would say, 'Right, we are going to have seminars."[119]

84. We also received evidence about the additional burden to the LSC of auditing the application of the means and merits tests by the solicitors, including checking that adequate and reliable evidence of means has been collected. When asked about this, Clare Dodgson admitted that this auditing would also involve a set of additional costs.[120] In our report on civil legal aid we concluded:

"... the current system of auditing solicitors' costs is arbitrary, inaccurate and bureaucratic. Furthermore, it is not linked to quality of advice given. It is clearly punishing competent and honest solicitors and is operated in a way which completely fails to attract the support of the profession. This is the most serious criticism of the current system for managing legal aid work that we have found. A solution is urgently needed."[121]

Clare Dodgson admitted that the current system was not perfect and that changes would have to be made. It would seem a little ambitious for the LSC to attempt to audit solicitors' compliance with means and merits tests, when they have yet to put the basic auditing system in order.

85. The transfer of grant would clearly have substantial implications for the LSC. It would impose significant administrative burdens in terms of consulting with, and the auditing of, solicitors; IT systems would need to be developed and maintained; additional specialist staff would have to be recruited, and their salaries paid on a continuing basis; and many criminal law solicitors would require training. It seems over-optimistic to estimate that this would cost only £800,000 in the first year and £400,000 in subsequent years.

The courts

86. Even though these proposals would remove a responsibility from the courts, it is possible that they would not reduce, but instead increase, court expenditure. The LSC suggests that it would make legal aid determination within 24 hours. Even this apparently short time period could cause delays and adjournments given that defendants are generally produced before a court on the next sitting day following charge.[122] As discussed at paragraphs 146 to 149 and 152 to 154 below, the introduction of a means test could cause delays and increase the number of unrepresented defendants. These downstream implications would impact on the efficiency and cost of the court service.

87. Although we acknowledge the reason for the Department's desire to obtain greater control of the Criminal Defence Service budget by transferring responsibility for grant from the courts to the Legal Services Commission, we consider that the current proposals fail to address a number of key questions. These include:

Whether, in practice, the Legal Services Commission and solicitors are better placed to apply the interests of justice test than the courts;
When the test should be applied: if done prior to the case it may give rise to delays—or if done retrospectively the question arises of who should bear the risk;
How conflicts of interest arising from the transfer from costs to solicitors, which could threaten the interests of the defendant and/or the envisaged savings to the Criminal Defence Service, could be avoided;
What evidence the Department has to substantiate its claims that magistrates' courts have been inconsistent or over-generous in applying the 'interests of justice' test; and
What impact the proposals would have on the volume of representation orders granted or on Criminal Defence Service expenditure and whether this would outweigh the substantial downstream costs of the transfer.

Other options

Guidance to courts

88. The Justices' Clerks' Society argued that, if evidence of inconsistency is produced, practical measures should be taken to ensure consistency in the magistrates' courts, rather than removing responsibility for grant from them. In particular, it called for "improved guidance on the interpretation of the statutory criteria governing grant," explaining that "the Society has already commenced work on these aspects of the process and made a proposal that some courts be used as 'pilots' for testing out the new guidance to see if the rate of application or grant is affected."[123]

89. This option was considered by the Department, as an alternative to the changes proposed in the draft CDS Bill.[124] It states that the DCA already provides guidance to courts on the grant of criminal legal funding but that there remains inconsistency and that the guidance is not binding in any way.[125] Accordingly, it has rejected this option.[126]

Restricting the interests of justice test

90. The Consultation Paper explains that, if responsibility for grant were transferred, the General Criminal Contract would contain binding instructions to solicitors regarding their application of the interests of justice test.[127] Concerns have been expressed about the fact that extra-statutory guidance, issued by the LSC to solicitors, could restrict the application of the interests of justice test. Cindy Barnett of the Magistrates' Association told us that "there is a potential danger in that if it is a question of tightening up or restricting the interests of justice test that would be relatively easy to do through directions to solicitors who are already involved in the General Criminal Contract".[128] She also said:

"We did not quite understand in what way there would be a restriction, bearing in mind the phraseology of the interests of justice test, but it certainly worried us that there was one suggestion—I am not quoting here—that it should definitely be that the likely effect would be imprisonment."[129]

Witnesses have pointed out that the application of the test must remain flexible and be capable of taking account of a number of factors. For example, a minor offence could have serious implications for a defendant, even if a custodial sentence is unlikely. A person fined for common assault may find the conviction raised in the context of divorce and child contact proceedings.

91. The Joint Committee on Human Rights has highlighted the fact that Section 3 of the Human Rights Act 1998 requires the interests of justice test to be interpreted in accordance with Article 6(3)(c) of the European Convention on Human Rights (discussed at paragraphs 162 to 165 below). The Joint Committee warns that Article 6(3)(c) could be breached if the LSC were to issue guidance that requires solicitors to apply the test in a way which is less favourable to defendants than the current application by the courts.[130]

92. When the DCA and the LSC were asked about these concerns we were told that, while guidance would be issued, the aim of this guidance would be to clarify rather than restrict the interests of justice test.[131]

Statutory amendment to the test

93. The Justices' Clerks' Society commented that "if too much legal aid is being granted, this may indicate that the criteria [set out in the Access to Justice Act 1999] need review".[132] Mr Clarke of the Society also told us that "if the Government wants to issue a new criteria by which we can operate, which is stricter, then that is another issue".[133]

94. Given the importance of the interests of justice test, any change to its application should be made in a transparent manner, capable of scrutiny, rather than by means of amendments to the General Criminal Contract. Even if some courts were applying the test inappropriately, we see no reason why this could not be rectified by the Department issuing appropriate guidance to the courts or by introducing a Bill which would change the wording of the interests of justice test as set out in the Access to Justice Act.

Necessary safeguards

95. JUSTICE explained in its written evidence that, when the Conservative Government introduced reforms on contracting legal services, it had intended that responsibility for grant would be transferred from the courts to the LSC.[134] In oral evidence, Roger Smith of JUSTICE told us that:

"What Lord Mackay, to his enormous credit, proposed was that this transfer of responsibility would be done within a structure where there would be a trail of appeal that ended with an independent appeal body of some kind, and with a failsafe power to the courts to grant legal aid. Those parts of his original scheme have been taken out of this Government's proposals, and I would very much hope that you would support their reintroduction because they are necessary to provide some safeguard for defendants against miscalculation and mistake."[135]

Fallback power

96. JUSTICE also commented that "there will be instances where the court considers that legal representation must be granted in the interests of justice and that a miscarriage may follow if this does not happen."[136] It recommends that judges should be given a fallback power to grant publicly funded representation where they consider that this is the case. The current proposals do not contain any such fallback power.

97. In Scotland, both the Scottish Legal Aid Board and the courts have the power to grant publicly funded legal representation for trials involving less serious offences. At present, Scottish courts may grant legal aid where the defendant has not previously been sentenced to imprisonment and where the court is considering a custodial sentence. In these cases, the courts need only consider whether the defendant could pay their own legal costs without undue hardship to them and their dependants. The Scottish Legal Aid Board is currently engaged in consultation following a review of summary criminal legal assistance.[137] The review recommended that the existing powers of the courts to grant summary legal assistance should be extended:

"The powers of the court to make publicly funded representation available, where it is felt desirable for the accused to be represented, should be extended so that a 'safety net' is provided by, for example, appointing a duty solicitor or by the Board employing a solicitor under its powers."[138]

98. When we asked the Minister about the idea of such a fallback power being given to the courts, he commented:

"I would like to indicate that I am open to that option. I think that is something I would expect to come back in the consultation, and certainly the whole spirit of this consultation is not to be fixed about that position; if there are strong arguments for that then we would want to consider them very carefully … I understand that that is available in Scotland, and, as I have indicated, I would be open to that as a recommendation coming forward. Let's look at the strengths and merits of it, let's look at the costs implications of it and let's come to a decision."[139]

Appeal right

99. JUSTICE has also recommended that the proposals should include an appeal right against grant decisions made by solicitors. Roger Smith has been quoted as saying that: "defendants must not be left without adequate remedies if a decision is wrong".[140] No such right of appeal is proposed in the Consultation Paper.

100. Article 6(1) of the European Convention of Human Rights provides, inter alia, that:

"in the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

When we asked whether this Article would require the establishment of an independent appeal mechanism if responsibility for the grant of publicly funded legal representation were transferred, we were told by Roger Smith "…this is a civil right and obligation and … therefore, you are entitled to a fair and impartial determination …"[141] The Joint Committee on Human Rights has also stated that a right of appeal to an independent court or tribunal is required by Article 6(1) and 6(3)(c) of the European Convention on Human Rights.[142]

101. A number of other witnesses supported the argument that, if responsibility for grant were transferred from the courts, an appeal mechanism would need to be introduced. For example, Sid Brighton of the Justices' Clerks' Society commented that "there needs to be some appeals procedure if it is purely going to be down to a solicitor deciding whether a person should or should not have legal aid and there is no appeal against it. It could be very unfair and lead to a lot of injustices."[143]

102. When we put these comments to the Minister, he told us:

"Ultimately, I am guided very much by what is already happening on the civil side and has been happening for some time. In that sense there is an appeal mechanism to a binding review committee and…there is of course judicial review. If I look at the amount of challenge, it is small relative to the size of the system and I would not want to reinvent the wheel, but I would certainly want some appeal mechanism. I think it is important."[144]

In the context of civil legal aid, if funding is withdrawn by the LSC, any legally aided individual has a right of appeal to a Funding Review Committee, made up of solicitors and barristers from private practice.

103. Although the Judges' Council agreed that an appeal process would need to be introduced if responsibility for grant were transferred, it has highlighted some potential difficulties. Lord Justice Judge told us that he "would much rather not get involved in having to hold the case up while the appeal process was afoot."[145] This illustrates the need for any appeal mechanism to be simple, economic and expeditious. If the only appeal mechanism were judicial review, this would exacerbate the risk of delays, as judicial review is a time-consuming and expensive process. Mr Justice Richards also told us:

"It is not clear to me who would bring the appeal. The hypothesis, as I understand it, is that the solicitor has said, 'This is not in the interests of justice', and has refused legal aid. Is the defendant therefore meant to bring the appeal in person? Of course, he is not going to be very well able to set out the reasons why an appeal should be allowed."[146]

104. If these proposals were to be implemented, we consider it essential that there should be an expeditious right of appeal to the courts or an independent tribunal and that the courts should be given a fallback power to grant legal aid, in exceptional circumstances, where the interests of justice so require.

56 Draft CDS Bill, para 39 Back

57 Ev 74, para 87 Back

58 Q 216 Back

59 Draft CDS Bill, para 16 Back

60 Legal Services Commission Annual Report 2002-03, LSC, HC 743, para 3.11 Back

61 Q 201 (the Minister) Back

62 Ev 51, para 4 Back

63 Ev 57, para 3.8 Back

64 Q 68 Back

65 Ev 86 Back

66 Q 146 Back

67 Q 215 (the Minister) Back