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Adam Afriyie: Legal aid is incredibly important to the least well-off and most vulnerable in society, but does the hon. Gentleman agree that an absence of legal aid practising solicitors is equally iniquitous?
The hon. Gentleman is right and I will deal with that point in a moment. We rightly always draw attention to the most vulnerable and the least financially able to make a point, but this issue affects a much wider swathe of individuals. It is a truism to say that nobodyand certainly not the articulate middle classesthinks about legal aid until they themselves are in a court and have no access to a solicitor at the point of need. One of the difficulties in arguing the case for legal aid effectively is perhaps that so many people assume that they will never be in that position until they are. Then they realise just how important its provision is.
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Much has been made of the idea that fees to lawyers are a substantial part of the problem, but in fact the evidence suggests the reverse. Remuneration for the large bulk of those providing legal aid is not excessive by any means and fees have been frozen for some time. The legal aid budget has risen inexorably simply because of the volume of business being pushed through, which is largely the result of the huge number of prosecutable offences that have been put on to the statute book. I do not know the precise figure, but the last time that I looked, this Government had created some 700 new offences. I suspect that the figure is now approaching 800. The legal aid impact test is now being applied to new legislation, but it is 800 offences too late: the damage has already been done.
New offences are included in Bills with monotonous regularity; sometimes, they are included before the offences that they are replacing have even been implemented. That provides work for lawyers but is of no advantage to anybody else. We must ask ourselves what the consequences are of such an approach. One way to reduce the legal aid budget is to have a sensible prosecuting policy and not to prosecute such absurd offences as reading out a list of names by the Cenotaph. In the first instance, we need sensible laws and offences that do not unnecessarily restrict free speech.
The attempt to get other Departments to share the legal aid costs associated with the offences that they put on the statute book is laudable, but I shall believe it when I see it happen. I fear that the Department for Constitutional Affairs does not have the clout within Government and the Cabinet to make this idea work. It could have worked, had my and others' proposal come to fruition to replace the DCA with a full-blown ministry of justice that takes significant powers from the Home Office. If we had that big player in government, perhaps more account might be taken of this idea. When I see the Home Office divesting itself of a significant part of its budget and handing it over to the DCA to pay for the consequences of the offences that it has put on to the statute book in this year's criminal justice legislation, this year's asylum and immigration legislation or this year's anti-terrorism legislation, perhaps I will believe it. Until that happens, I fear that this is a fruitless endeavour.
We have also heard about the management of cases, but that cannot be swept aside as irrelevant, as it is critical to the amount of costs incurred. If we managed prosecutions better, we could manage defence cases better. At present, the evidence is that the management of cases, and of high-cost cases in particular, is lamentably poor in many instances, with the result that costs are higher.
The hon. Member for Huntingdon (Mr. Djanogly) mentioned early intervention. Although he was speaking more about civil cases than criminal ones, I agree that early intervention can prevent matters going to court that otherwise would have to and that the effect is to reduce costs overall.
I shall give some examples of how not to deal with the expanding legal aid budget. First, we must be very careful about the thresholds that are applied. I pay tribute to the Government for having listened to the Liberal Democrats' departmental committee on this subject, and to the views of my noble Friends in another place. The system that has emerged has a built-in
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sensitivity that might not have been expected. A steep or sharp threshold would mean that there was a point at which a person's income would suddenly require him or her to pay the full costs of defence, even though that person had not had to pay anything before that point was reached. That would be inappropriate, whereas the tapering that is in place is entirely appropriate. However, the test is whether people are denied access to justice by their means, and that is a test that we cannot yet apply.
The second way not to deal with the matter is to reduce the service that lawyers can provide to clients. An example of that is evident in the immigration service, where the whole thrust of previous immigration legislation has been to cut costs by reducing what lawyers can do for their clients. The effect has been to drive good practitioners out, and to allow poorer practitioners to be the sole defence resource for those who need it.
We must also be careful about reducing fees. The Government have chosen a very arbitrary way to reduce fees, especially for junior counsel, but the number of people practising at the Bar and as solicitors is falling. It is very difficult to find legal aid solicitors in large parts of the country and, if we are not careful, the result will be that some places will become advice deserts. Often, the most deprived areas are not the worst affected: perversely, people in the most affluent areas are less likely to have legal aid practitioners. It is probably the worst thing of all to be poor in an affluent area, as such people have no access to services that they have a right to expect.
The House needs to be aware of how few practitioners there are in the less affluent and rural parts of Britain. As I have said many times, my town of Frome has a magistrates court but only one practitioner in one practice providing criminal legal aid. He can do so because he is cross-subsidised by the rest of the practice, but his colleagues' patience about that cross-subsidy may not last for ever. It is often reported that Frome magistrates court will close and that it will move to a new location 35 miles away. If that happens, I am sure that the patience of the other partners in the practice will be exhausted, as they will not want their colleague to be out of the office all day, every day, on visits to faraway magistrates courts. The result will be that there will be no one to represent people who require criminal legal aid in the magistrates courts in my area.
That is a huge concern. It is bad enough to have only one practitioner, given the obvious potential for a conflict of interest to arise. For example, the practitioner in Frome often represents interesting young gentlemenI shall not say "thugs"and in their defence makes a familiar speech, telling the court about the extraordinary behaviour that a break-up with a girlfriend occasioned, and about the remorse that the young gentleman in question has expressed. However, that might coincide with his client having a fight with another young gentleman, whose story is suspiciously similar. That could involve a conflict of interests. If we do not have such practitioners, how will we provide the service?
I am dubious about having a public defender service as a matter of course, which seems to me to be the direction in which we are inexorably headed. If that happened, the state would investigate the crime, mount
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the prosecution, try the crime and defend the defendant. I am not sure that that is how criminal justice should work in this country, and we need to be cautious about reaching that situation.
Jeremy Wright: Does the hon. Gentleman agree that not only would a criminal defence service be not necessarily better for the defendant, buton the evidence we have so farit would be no cheaper either?
Mr. Heath: It would almost certainly be more expensive, because we would no longer have the cross-subsidy that I mentioned earlier. It is more and more difficult to maintain that cross-subsidy anyway, as aspects of solicitors' general practice are hived off to other professions. The conveyancing that used to provide a large part of practices' income is now done by others, and other parts of the job are being done by other professions. That means that many towns do not have general practices providing all the services. That may not be a problem in a large city, which will have a variety of practices specialising in different areas, but it is certainly a problem in market towns and rural areas, which have a limited number of solicitors who have to provide a wide range of services.
Vera Baird: The hon. Gentleman makes the point well about the lack of cross-subsidy and the possibility that heavier costs will follow as a consequence. I am interested in his notion that because the state finances a criminal defence it might not be so good. I have done a case in which the criminal defence representatives were able to mobilise the Criminal Cases Review Commission to order the police to seize some evidence in a way that I am convinced that no high street firm would have been able to mobilise an organ of state to do. That may have been because the defence representatives were funded by the state, albeit at arm's length, and had some extra clout in some situations. They certainly did in that case. Is the hon. Gentleman interested in that as a counter-argument?
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