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Mr. David Burrowes (Enfield, Southgate) (Con): I am grateful for the opportunity to follow my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright). I wish to follow on from his experiences at the Bar with my experienceI declare an interestas a practising criminal solicitor-advocate.
The titles of Government Bills have tended to be more descriptive in recent times. For example, we recently considered the Violent Crime Reduction Bill. Perhaps a more descriptive title of this Bill would be the "Return of means-testing following our mistake in abolishing it Bill". The Government must have the humility to acknowledge that the will to abolish means-testing was theirs. They have realised that they made a mistake, so they are trying to reintroduce it.
I was a practising solicitor at the time at which we had the means-testing application forms. We all realised the administrative burdens and the problems and delays that the system caused. However, the problem was not means-testing per se, but the way in which it was administered. I remember the delays vividly. When clients applied for legal aidas it was called before the representation orders came into beingthey were not necessarily the most reliable of sorts. They were required to provide documentary evidence, but they were often self-employed. It took a great deal of time for their statements of accounts to come before the courts, or to get the wage slips for 13 weeks that were needed. There were weekly adjournments, and we went through the process of trying to get blood out of a stone to get the next wage slip to get up to the magic mark of 13 so that we could eventually reach a position at which legal aid could be considered. We certainly knew that the system needed to be changed to take account of those delays and problems.
Another problem arose due to contribution orders. Clients were often required to make a contribution of a matter of pounds a week, but failed to do so over several weeks. Just before the trialindeed, in some cases, it was on the day of the trial itselfan order would be issued to revoke their legal aid order because they had not paid their contribution. The trial process ended, and we went back to square one. That must change, and I urge the Government to be cautious about the implementation of the new contribution orders so that we do not return to the bad old days when contribution orders were a spanner in the works for the trial process
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and the criminal justice system. There is certainly support for a much more simplified, straightforward form of means-testing. It should be less bureaucratic and burdensome, so I welcome the proposals in the Bill.
I am concerned about the rationale of the proposal to transfer responsibilities for granting representation orders from the courts to the Legal Services Commission. I am not aware of any justification for that proposal, and while I welcome the devolution of powers in the Bill to court staffnotionally, there will not be any changes in administrationthe fundamental principle that the courts are the proper place for the judicial function of considering the merits of legal aid should be retained. The hon. and learned Member for Redcar (Vera Baird) referred to complaints about inconsistency after the means-testing scheme was abolished, and spoke about a flood of applications. She sought to criticise the courts for their inconsistency in granting certificates, and suggested that their decisions were wrong. I have not seen any research or statistics to justify such an assertion. From a practitioner's point of view, as soon as the means test was abolished it opened the way for problems for people charged, for example, with driving offences, who could not produce their payslips or a statement of accounts, and thus could not receive a legal aid certificate. Those people now fall within the range for the granting of legal aid, which, in the past, was often granted to people who had the means to pay for representation. The number of certificates increased, but that had little to do with a more liberal approach by the courts towards the granting of certificates. In my years of practice, I did not encounter any inconsistency in the granting of certificates by the courts, so that argument does not provide a proper rationale for seeking to transfer the primary responsibility for granting legal aid from the courts to the Legal Services Commission.
Recently, however, concerns were expressed when the commission became much more involved in the budgets of individual courts. Court staff were anxious about the targets they had to meet, and the decisions that were made were arbitrary, and not in the interests of justice. Inconsistencies, unfairness and injustice arise when the commission is involved in decision making, so it is worrying that the Bill should confer powers on it. I accept that those powers will be devolved to court staff, but the Bill refers to monitoring by the commission, apparently to deal with the problem of inconsistency. Courts should have a proper residual power to grant legal aid. There is no such provision in the Bill, but it was mentioned in the other place, where Members were anxious about human rights compliance and the need for proper safeguards. In Committee, the Government should accept that the appeal process for legal aid should comply with human rights provisions. Moreover, they should go a step further and retain the principle of residual power for courts to grant legal aid.
My hon. Friend the Member for Huntingdon (Mr. Djanogly) spoke about the prospect of defendants charged with either-way offences electing to plead in such a manner that means they will not be encumbered by contribution orders. I have represented clients who have been primarily concerned with the financial consequences of legal aid, and they have thus elected to
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plead in a certain way. At present, they must submit a statement of means, so they run the risk of contributing to defence costs. The reverse could well be true if we stagger, as we seek to do, the implementation of means-testing by magistrates courts and Crown courts. In either-way cases, many defendants will base their decision about whether to be tried in a magistrates court or in a Crown court on the issue of which court is less expensive for them. Plainly, there needs to be some reconciliation between the two procedures. We need to avoid the eventuality that I described, which could well increase the costs.
It is easy, as has been mentioned in the debate, to stereotype legal aid debates and talk loosely about fat-cat lawyers and so on. Solicitors generally provide a good service, offering high quality advice at unsocial hours. If the solicitor is lucky, he sees his client in an interview room. If he is unlucky, the meeting takes place in a smelly cell. Clients are often the most vulnerable in our community and are often dangerous. Their liberty is at stake.
Solicitors up and down the land fulfil that role. They are under great pressure, not least because of the Government's proposals and the pigeon-hole approach to legal aid that the Government have taken. The Bill is a symptom of that approach to the criminal legal aid service. We all recognise that there has been an increase in criminal legal aid. The situation in the lower courts is largely under control, as the Legal Services Commission has recognised. The Department has predicted a decrease in that budget. It is estimated that the Bill will make savings of £35 million.
Taking all those factors togethera budget under control, solicitors properly administering the contracting process, and case management procedures in courts having their effectwe should get off the back of solicitors, who seek to provide a good service throughout the country.
We still face the prospect, which is no doubt under review, of competitive tendering, which could go to the heart of local services. It could drive out local firms, and black and minority ethnic firms in London could be disproportionately affected by such proposals. It is high time the Government took price competitive tendering off the agenda and removed solicitors and the lower courts from their gaze. No doubt high cost cases are a proper target. My hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) mentioned that delays are endemic within the systemdelays caused, for example, by a prison van routinely failing to turn up. No doubt the courts could examine the 1 per cent. of cases that make up 25 per cent. of the criminal legal aid budget. There is certainly no basis for focusing on solicitors, who are trying to do a good job and are keeping proper control of the budget.
Although I welcome most of the Bill, I ask the Government to examine in detail the forgoing of the important principle of the interests of justice being
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properly determined by the courts, to look in the round at the cost of criminal legal aid budgets, and to ensure that they provide a good service to solicitors and defendants alike.
David T.C. Davies (Monmouth) (Con): I am delighted to have the opportunity to speak in the debate. I join my hon. Friends in giving a cautious welcome to the Bill, with certain caveats. I am not a lawyer, but one does not need one when reading through the Bill to realise that it represents a giant U-turn on the Act that the Government passed in 1999.
The Minister said the old system was decrepit and in need of change, in which case one must ask why she, or rather her colleagues, did not change the system. What they did was tear it up and start again. The Government insisted that means-testing would have to be abolished. They were warned at the time that abolition would mean an exponential growth in claims and legal aid bills, but they dismissed that on the basis that the extra claims would be more than offset by the increase in efficiency as a result of dispensing with the service for the calculation of contributions.
Legal aid spending has increased by 34 per cent. since 1997. The Government's figures suggest that the increase in costs is because people who would previously have paid for legal aid are taking advantage of the fact that they can now get itthe example involving a professional footballer who earns £40,000 a week is simply the tip of the iceberg. [Interruption.] I would be happy to take an intervention by the hon. Member for Workington (Tony Cunningham).
The Government introduced the 1999 Act in the face of warnings, and they made an error that cost millions of pounds and that possibly denied people access to justice. However, we must not be too hard on them, because any creditable system of justice should give a little credit to an offender who admits to having made an error and who wants to put that error right. Although we have not heard an apology from the Minister yetperhaps we will get one shortlythe Bill is a way to make amends and reverse the errors introduced by the Labour party, and it will therefore receive cross-party support.
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