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Mr. Heath: I am certainly always interested in counter-arguments and I do not wish to cast aspersions on the professionalism of lawyers employed in that capacity. Indeed, the source of funding is the same in either case. The question is whether a person is under contract directly to the state—as barristers are not—in a way that would be an innovation in our legal system.
The point that the hon. and learned Lady makes gives me cause for concern in the other direction, because I would not want us to have an elite defender system any more than I would wish us to have a substandard defender system. If it is true that a state defender would have more clout with the prosecuting authorities than other defenders, something would need to be done to prevent that from happening.
Vera Baird: In the case I mentioned, it was the Criminal Cases Review Commission, not the prosecuting authorities. The defence was able to mobilise that independent third party, and I wondered if it was because it had the clout of being directly financed by the state. It was to the defendant's huge advantage.
Mr. Heath:
I am glad for the defendant, but the CCRC needs to look carefully at its independence if it
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considered more favourably a request from a particular source than one from an equally valid but alternative source.
Much has been said about the Carter review and what it will achieve. If it achieves everything that is expected of it, it will be a remarkable review indeed. I have some expectation that something will emerge from it. I have a jaundiced view of Government reviews as a rule, because it is this Government's way of saying mañana to establish a review, or a review of a review, or a review of a review of a review. In this instance, however, as the issue is urgent something is likely to emerge. I hope that it is not scuppered, like the Turner review, by the Chancellor of the Exchequer before it is even published. That would be extremely unhelpful.
I fear that an increase of costs will be involved, so there is a real prospect of that happening but I hope that the DCA will be able, and want, to stand up for itself and say that legal aid and legal services can never be provided on the cheap. They must be effective, but there will always be a cost, and to return to the point with which I began, in response to the hon. and learned Member for Redcar (Vera Baird), we should be proud of the fact that we provide those services to our citizens.
We shall support the Bill. There is nothing exceptionable in it. I am deeply disappointed that the Minister wants to revisit the issue of appeal, as the sensible amendment proposed by my noble Friend, Lord Goodhart, in the other place commended itself to Members there. The Minister says that the eligibility rules are simply a matter of arithmetic. I disagree. There is of course a large element that is arithmetic and it would be nonsense to require it to be appealed, but there is also the complex issue of whether, in a relationship or partnership, another person's financial position and arrangements should be taken into account as part of the eligibility criteria. That is properly a matter for appeal.
The previous appeal system was not overused and I do not think the proposed one would be. There would be no significant issues in terms of either costs or delay. At the end of the day, we are talking about the interests of justice. If someone is denied representation who feels that they should have it, it is per se in the interests of justice that we look into why it has been refused, if it is anything other than an incontrovertible case based on simple arithmetic.
Adam Afriyie: If it is simply a matter of a mathematical calculation, there is no reason why the existing court system cannot undertake it.
Mr. Heath: I would not expect an appeal to be heard on a challenge that someone had done their sums wrong. That would not be grounds for appeal, but where the issue is more complex, I would expect the court to take an interest in how the calculations had been made, because that is in the interests of justice. That is the distinction that I want to make, and in Committee I shall argue that point.
Mr. Heath:
I have spoken for longer than I intended and to be fair to other Members I shall not give way again.
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I was interested in the Minister's response on the relevant date for assessment. I think she suggested, perhaps off the cuff, that it should be the date of arrest, which might be difficult to manage. The date of charge might be rather easier to manage as the relevant date. As that provision will probably appear in regulations rather than in the legislation, it might help if careful consideration were given to it before Committee, so that we have some idea of the Government's thinking.
I should be interested in exploring the mechanism for the contribution paid. Are we intending that practitioners should be paid, presumably under contract from the commission, irrespective of whether the required contribution had been returned to the commission? Perhaps the Minister will be able to satisfy me on that point in due course.
We need to consider whether the Bill will achieve the savings that the Minister presumably expects from it. If they can be made, will they come from the contributions that more affluent people make to the cost of legal aid or from reducing the eligibility of those who are less affluent to legal aid at the bottom end? The House needs to be able to understand that important distinction in allowing the Bill to make further progress.
We have not yet had a satisfactory answer about a basic trade-off. A few years ago, we were told that the reason for abolishing the means test was effectively to produce a quick, efficient system that would obviate the need for lengthy means tests, which were getting in the way. We are now told that the Government's view is that we must reintroduce the means test because that is an effective way to produce a quick, efficient system that will save money for the taxpayer. Clearly, there is a trade-off between the speed of the process and its cost. I appreciate that the Government are trying to find the balance, but they must be clear about where the balance of advantage lies. However, I certainly do not wish to oppose the Bill this evening.
5.10 pm
Jeremy Wright (Rugby and Kenilworth) (Con): I do not propose to detain the House for long. I declare an interest as a non-practising criminal barrister and as a distinctly thin cat, rather than a fat cat, in the course of my practice. I have two concerns about the Bill. First, it does not perhaps address in the way that the Government hope it will the fundamental problem at the heart of the criminal legal aid budget. Secondly, in trying to address the problem in that way, the danger is that the Bill will damage the criminal justice system.
Following the remarks that have been made by other hon. Members on the first issue, I have two points to make. First, within the parameters of my experience as a practising criminal barrister, I can think of very few of my clients who would be caught by the scope of the Bill and who would have to pay any contribution to their own legal costs because their incomes would come below—in many cases, well below—the limit that the Government propose. I therefore wonder whether a sizeable percentage of those who were my clients would save us any money at all if they were invited to contribute a proportion of their own costs.
The other issue, which goes to the heart of the matter, and to which other hon. Members have drawn attention, is that the Government do not address in the
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Bill the very high-cost criminal cases that form a significant part of an unacceptably ever-growing criminal legal aid budget. Until something is done about those cases, the budget will not be brought under control. In fact, I suggest that the situation is worse than that: the danger is that those who practise at the junior end of the criminal Bar get the blame and must carry the burden of those who cause the real problem at the top end of the criminal Bar. That problem is not addressed by the Bill, which, if anything, perpetuates the myth that lawyers and, indeed, their clients in the criminal justice system are mainly responsible for the overspend. In my view, they are not.
Whether the criminal justice system operates at too high a cost is a genuine concern—it very clearly does—but the reason why it does so is not mainly, substantially and certainly not entirely due to the fact that criminal legal aid is paid in too high amounts to lawyers and their clients. Many other things in the criminal justice system need to be addressed, such as why cases do not come to court as quickly as they should and why there are innumerable adjournments. That has to do with a range of things—the hon. Member for Somerton and Frome (Mr. Heath) referred to a few of them—including failure to disclose evidence in time and problems relating to witnesses and defendants who fail to attend courts. There are even problems, I am sorry to say, relating to defendants not being produced on time from the prisons where they are on remand. That causes delay, and delay causes cost. If the Government chose to do an analysis of costs, I would not be surprised if they discovered that a good portion of the overspend that they correctly describe in the criminal justice legal aid system results from that sort of problem.
The other difficulty that I have with the Bill is the fact that in the course of attempting to save money, the Government may do damage to the pursuit of criminal justice. It is inevitable that some people who do not receive criminal legal aid because their means are too excessive will choose to represent themselves. The Government have accepted that that will happen in a small number of cases, but I venture to suggest that it might happen in a substantial number of cases. In my experience as a lawyer, when that happens a case inevitably takes longer, and when a case takes longer, it costs more. When the Government calculate the amount that they hope to save through the Bill, they must take account of the lack of saving—if I may put it that way—that will result if more people choose to represent themselves.
The problem that arises when people represent themselves is not only monetary. It is of course right that such people, as non-trained lawyers, might not be able to get to the heart of the matter as quickly as a legal representative could. Cross-examination also goes on longer. However, in a substantial number of cases, it is profoundly undesirable that those who represent themselves should be permitted to cross-examine witnesses. One can think of several examples of such cases, including neighbour disputes and, worse yet, cases involving a child as a victim or a witness. If prosecutions are conducted in such a way that defendants represent themselves and thus cross-examine witnesses, the process not only takes longer, but detracts from the nature of justice and affects the tone of the case.
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Although I do not object to the substance of the Bill, it fails to address the concerns that I have cited. I hope that the Minister will carefully examine not only what the Bill covers, but what it does not cover. As the hon. and learned Member for Redcar (Vera Baird) said, when we deal with criminal defendants, we are often dealing with vulnerable individuals in their most vulnerable moments. It is important that they receive the assistance that they need so that they are represented properly. If they become inclined to defend and represent themselves, as I suspect that they will in some cases, it will not enhance the nature of British justice—quite the reverse. I hope that the Minister will take my points on board and bear them in mind when she thinks about other matters that the Government might wish to address when considering the criminal justice system as a whole.
5.17 pm
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