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Mr. David Heath (Somerton and Frome) (LD): I listened with great care to the hon. Member for Leicester, East (Keith Vaz) and I have a great deal of sympathy with his views. We debated in Committee amendments from another place proposed by my noble Friend Lord Goodhart. Here, I must take care not to pre-empt the debate on the next amendment, which forms its own separate group. I hope that we can reach a satisfactory conclusion on the question of the financial eligibility test. The Minister rejected the amendments from another place because she did not want to allow appeals on the strict matter of financial eligibility. However, on the wider, interest-of-justice test, the capacity does exist for someone to apply to the court, and thereby to short-circuit the legal services review system.

The point made by the hon. Member for Enfield, Southgate (Mr. Burrowes) is a slightly different one. It concerns, in effect, having an appeal of last resort: a court's having the residual power to do that which is sensible and in the interests of justice within the confines of a court, rather than entering into a bureaucratic procedure. Indeed, the same point was made by the hon. Member for Leicester, East. The hon. Member for Enfield, Southgate is building on the amendment tabled by the hon. Member for Huntingdon (Mr. Djanogly) in Committee. We had a short debate on it in Committee and, as I recall, we divided on it and I gave my support to the hon. Gentleman. The Minister had a couple of problems with that amendment, but today's new clause addresses them. She was concerned about consistency, which subsection (2) of the new clause addresses. She was also worried about the provision's scope; however, subsection (1) of the new clause would introduce an element of conditionality.

We are not talking about a great matter of principle, but simply about expediency. The question is, when matters have arisen during a hearing that make it clear to the court that the person in question should be granted representation, how do we deal with that situation without the need to enter into a bureaucratic process involving the Legal Services Commission? Such a process is not in the interests of the court hearing, the expedition of the case or of all the other people involved in the case, let alone the person receiving aid under the    court's direction. Under such exceptional circumstances—clearly, they are indeed exceptional—restoring the residual power through the new clause would be of value to the court system. Such restoration
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should commend itself to the Minister as being entirely consistent with her approach to the legal aid system, and with achieving the result that we all want to achieve: a better, faster, more efficient and more effective court system.

James Brokenshire: I shall take just a brief moment of the House's time to speak in support of the new clause tabled by my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes). In essence, this is a matter of justice and of ensuring that those members of our society who are vulnerable and less advantaged are not put at risk by the Bill's overall framework. My hon. Friend's comments about people with mental health problems and the obstacles that might ultimately prevent them from receiving legal aid that they are properly entitled to were particularly germane; indeed, that is a very important issue. I should at this stage declare an interest, in that I am a solicitor. However, I am not a criminal solicitor, so the Bill falls outside my area of practice; even so, it to some extent touches on issues of legality with which I am familiar.

2.45 pm

The comments of the hon. Member for Leicester, East (Keith Vaz) about bureaucracy and the Legal Services Commission were also relevant. The Bill attempts to streamline the system and to save the cost to the public purse. But we must also ensure effective access to justice, and if the new clause is not accepted, there could be further delays, leading to further costs. In essence, the question is: what is the sensible approach in such circumstances? We need a safety net that allows applications to the court in exceptional circumstances, as my hon. Friend the Member for Enfield, Southgate made clear. Indeed, his new clause uses the phrase,

So the new clause makes clear the circumstances in which it would provide a safety net and protection.

The new clause might well need to be supplemented by some form of framework along the lines described by my hon. Friend, but there is much merit in it. It would aid access to justice for all in circumstances where bureaucracy, form-filling and over-regulation might otherwise prevent such access. It has my support and I commend it to the Minister. I look forward to hearing what she has to say about the key issues raised by my hon. Friend: ensuring effective access to justice in a timely manner, and ensuring that people who would otherwise be entitled to legal support from the state are not overlooked.

Mr. Jonathan Djanogly (Huntingdon) (Con): My hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) is a gentleman with no little experience of the practice of criminal law, and I, too, should at this stage declare my interest as a practising solicitor. This is a practical, administrative Bill, and it is important that the views of people such as my hon. Friend be aired and listened to—hopefully—by the Government. He has made an important contribution to this debate.
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The hon. Member for Somerton and Frome (Mr. Heath) suggested that we divided on a similar amendment in Committee, but I think that he will now acknowledge that we did not.

Mr. Heath indicated assent.

Mr. Djanogly: We did not do so because I was not happy with the Government's position at that stage, and I wanted to ensure that we revisited this issue on Report. I am very pleased that my hon. Friend has dealt with it so comprehensively and well. Of course, I did indeed propose a similar amendment in Committee, and I still believe that the Bill should incorporate such an amendment in the interest of justice. It is important that, in exceptional circumstances where a defendant is incapable of making a written application, and where the situation is sufficiently urgent, there should be a residual platform enabling an oral application to be made in court. The Government rebutted that point of practicality in Committee, on the basis that granting courts such a power could lead to its being abused by applicants. As has been pointed out, such a power would apply in circumstances that courts would recognise as being exceptional, so such abuse would be obvious to any court. As has also been mentioned, the new clause deals with the problem by referring to issues such as practicability.

The proposed procedure deals with real-life scenarios. It would expedite the court procedure, and it could prevent unnecessary delays in the facilitation of the access to justice that the Bill is trying to entrench.

The support of practitioners in that regard should not be ignored. If my hon. Friend wishes to press the new clause to a Division, I assure him that he will have his colleagues' support.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): This Bill has two key objectives—to transfer the power to grant representation from the court to the Legal Services Commission, and to introduce a compulsory means test element that must be satisfied before any grant of legal aid can be made. The transfer of grant from the court to the LSC is designed to help achieve greater consistency in the grant of representation, as well as ensuring, as my hon. Friend the Member for Leicester, East (Keith Vaz) noted, that the LSC achieves greater control over criminal legal aid expenditure.

By giving the courts—in other words the bench or the Crown Court judge—a residual power to grant representation, this new clause would threaten to undermine these objectives. It is for that reason that I shall ask the House to resist it, and I shall set out my reasons in some detail.

The new clause would almost certainly generate the potential for more inconsistency, as each bench would be using its own discretion to reach decisions. Such inconsistency might therefore create an inherent unfairness in the system and undermine one of the key precepts of this Bill.

Let me make it clear that the Bill will mean that the bench will have the power, ultimately, to determine whether the interests of justice have been satisfied. But it will not have the power to grant legal aid: that power
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will remain with the LSC, which will be able to make the grant only if the means test and the interests of justice test have both been satisfied. It is important for the House to understand that both limbs must be satisfied before legal aid is granted.

We do not accept that there should be an exception to the two-limbed test. The interests of justice test determines whether it is desirable that a defendant be represented, and the means test determines who should pay for that representation—the state or the defendant. It is only when financial eligibility has been determined that the question of the interests of justice arises.

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