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Mr. Heath: Does the Minister agree that new clause 1(2) deals with precisely that point? It would require the financial eligibility test to be met for the interest of justice test to be agreed by the court.
Bridget Prentice: My point is that the new clause does not add to the Bill, which is perfectly capable of dealing with the problems that the hon. Member for Enfield, Southgate identified forcefully and correctly.
New clause 1 proposes that there should be a procedure allowing the bench to grant representation, following an oral application. That procedure is said to be subject to paragraph 3B of schedule 3 to the Access to Justice Act 1999, which reintroduces the means test. That seems rather odd, when the court-based staff would be available to conduct that test.
I am conscious of the argument put forward by the hon. Gentleman, who stressed that practitioners need to be able to apply in court for a grant of representation. He said that that need might arise when dealing with an urgent matter, and that that would work in favour of the court by helping to avoid unnecessary delays in the administrative process.
I emphasise again that the Government are confident that the means test will be sufficiently straightforward for the court-based teams to be able to conduct it swiftly and accurately. Under our system, an electronic database in each court will allow instant access to means information.
The hon. Gentleman was also concerned about first hearings involving defendants who are ill, illiterate or who have mental health problems. The hon. Member for Hornchurch (James Brokenshire) made the same point. However, the early-cover scheme will enable defendants to be represented at the first hearing without legal aid being granted. Solicitors will then be able to help their clients to complete the application form.
Mr. Djanogly: The Minister referred to a new electronic system. Will she give us an idea of what that is, and when it will be introduced?
Bridget Prentice: I am no electronics whizz, so I cannot go into much detail. However, work on the programme is already in hand, and I can assure the House that it will be ready in time, if the Bill is passed and implemented. Moreover, plans have been made to train court staff to ensure that they are familiar and comfortable with the new system.
The hon. Member for Hornchurch also said that a matter might arise suddenly before a court and that a person might need to be represented quickly. That might
26 Jan 2006 : Column 1570
indeed happen, but a determination about who pays would still have to be made. If a late application became a route to free legal aid, I would be concerned that the practice might not remain exceptional for very long.
Where there is a fundamental change on the issue of the interests of justice in relation to a defendant, we anticipate that it will be a relatively speedy process to obtain and process the necessary information on the means test. I do not agree with the hon. Member for Huntingdon that the matter would be dealt with more speedily by a bench or a Crown Court judge. In effect, a bench or a Crown Court judge will have to call an adjournment while determining whether a defendant should be legally represented, and for solicitors and counsel to be appointed and properly instructed. The system proposed in the Bill will take advantage of that inevitable and natural pause to seek the information pertinent to the means test. I see no reason why the need to refer back to the court-based grant teams should cause any significant additional delay in the process.
The hon. Member for Enfield, Southgate also suggested that the new clause would further safeguard compliance with the European convention on human rights. I disagree: article 6(3) of the convention says that a person with insufficient means to pay for legal assistance should be given it free when the interests of justice so require. The Bill complies with that, and we will ensure that the regulations under the Bill do so too.
The House should be aware that article 6(3) also gives the accused a right to defend himself in person.
Mr. Djanogly: With respect to the Minister, I remind her that I did not mention human rights in my remarks—although I shall when I speak to amendment No. 1.
Bridget Prentice: The hon. Gentleman mentioned human rights in our debate on this matter in Committee. The fact that he did not mention them again today perhaps shows that my response then was more than adequate.
As I was saying, article 6(3) of the ECHR also gives the accused the right to defend himself—even in circumstances where other people might think that he would be better off with legal representation.
There are therefore three possibilities: the state pays for legal representation if the defendant cannot afford it; the person defends himself, or he pays for his legal representation. The first two alternatives are a person's rights: the Bill does not change that position, and the new clause would do nothing to safeguard it.
The House will be aware that the bench will also be allowed to hear appeals against a decision to refuse to grant a defendant a representation order on the grounds that the interests of justice have not been satisfied. Although the bench may substitute its own decision on the interests of justice, as before, the responsibility for granting representation will continue to reside with the grant teams, as they must be satisfied that the defendant is also financially eligible.
I emphasise that the Government are not seeking to deny the right to representation in circumstances in which the interests of justice test are met. However, let me repeat that by reintroducing a means test, the
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Government are legitimately seeking to determine whether the burden of defence costs should be met by the state or the individual.
We believe that in designing the new system we have struck the right balance in defining the role to be played by the court in that process. Any proposal to arm the bench or a crown court judge with a residual power to grant representation runs counter to the consensus that has been built up in negotiations with our key stakeholders. I therefore call on hon. Members to reject the amendment.
3 pm
Mr. Burrowes: The Minister suggests that the new clause should be rejected because allowing oral applications will perpetuate inconsistency in the grant of legal aid. I suggest that that is away from reality. Almost all applications are by way of a written process already. It is only in exceptional cases such as when a mentally ill client is before the court—I will not repeat the examples—that one wants to have the option that remains in the new clause of allowing an oral application. It is hard to rationalise and find statistics to support the suggestion that oral applications that take place at present in exceptional circumstances create inconsistency in the grant of legal aid. The rationale for refusing, I suggest, is not valid.
The Minister also suggested that ultimately the courts have the discretion to determine the interests of justice test. However, we cannot rest assured with that when the supplement to the framework document contains the threat that if the Legal Services Commission considers on monitoring that there is an inconsistency across the country, as the conclusion says on page 13, the Government
"could choose to have the award of grant, including determination of the interests of justice test, administered solely and directly by the LSC, without the involvement of court staff."
—without the involvement of the computer programme to which the Minister referred to allow proper processing of applications for legal aid. The heart of the concern among practitioners and other members of profession is that the essence of the Bill is a measure to remove all powers from those closest at hand to make the proper decisions. Particularly in exceptional cases, magistrates are in the best position in the court to hear an oral application. On that basis, I invite the House to vote.
Question put, That the clause be read a Second time:—
The House divided: Ayes 145, Noes 234.
AYES
Afriyie, Adam
Amess, Mr. David
Ancram, rh Mr. Michael
Atkinson, Mr. Peter
Baker, Norman
Baldry, Tony
Barker, Gregory
Baron, Mr. John
Barrett, John
Beith, rh Mr. Alan
Bellingham, Mr. Henry
Bercow, John
Binley, Mr. Brian
Boswell, Mr. Tim
Bottomley, Peter
Brady, Mr. Graham
Brake, Tom
Brazier, Mr. Julian
Brokenshire, James
Brooke, Annette
Browning, Angela
Bruce, Malcolm
Burns, Mr. Simon
Burrowes, Mr. David
Burstow, Mr. Paul
Cable, Dr. Vincent
Clappison, Mr. James
Clark, Greg
Clifton-Brown, Mr. Geoffrey
Cox, Mr. Geoffrey
Crabb, Mr. Stephen
Davey, Mr. Edward
Davies, Philip
Djanogly, Mr. Jonathan
Dodds, Mr. Nigel
Dorries, Mrs. Nadine
Duddridge, James
Duncan Smith, rh Mr. Iain
Dunne, Mr. Philip
Evennett, Mr. David
Fabricant, Michael
Fallon, Mr. Michael
Featherstone, Lynne
Field, Mr. Mark
Forth, rh Mr. Eric
Foster, Mr. Don
Francois, Mr. Mark
Gale, Mr. Roger
Garnier, Mr. Edward
Gauke, Mr. David
Gibb, Mr. Nick
Goodman, Mr. Paul
Gove, Michael
Gray, Mr. James
Green, Damian
Greening, Justine
Hammond, Stephen
Harper, Mr. Mark
Harris, Dr. Evan
Hayes, Mr. John
Heath, Mr. David
Hendry, Charles
Herbert, Nick
Hoban, Mr. Mark
Hollobone, Mr. Philip
Holloway, Mr. Adam
Horam, Mr. John
Howarth, David
Howarth, Mr. Gerald
Huhne, Chris
Hunt, Mr. Jeremy
Hurd, Mr. Nick
Jack, rh Mr. Michael
Jackson, Mr. Stewart
Jenkin, Mr. Bernard
Johnson, Mr. Boris
Jones, Mr. David
Kawczynski, Daniel
Key, Robert
Lait, Mrs. Jacqui
Lamb, Norman
Lancaster, Mr. Mark
Leigh, Mr. Edward
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Lilley, rh Mr. Peter
Llwyd, Mr. Elfyn
Luff, Peter
Main, Anne
Malins, Mr. Humfrey
Maples, Mr. John
Mates, rh Mr. Michael
McIntosh, Miss Anne
Mercer, Patrick
Miller, Mrs. Maria
Moss, Mr. Malcolm
Mulholland, Greg
Murrison, Dr. Andrew
Newmark, Mr. Brooks
O'Brien, Mr. Stephen
Öpik, Lembit
Paice, Mr. James
Paterson, Mr. Owen
Pelling, Mr. Andrew
Penning, Mike
Prisk, Mr. Mark
Pritchard, Mark
Randall, Mr. John
Reid, Mr. Alan
Rifkind, rh Sir Malcolm
Robathan, Mr. Andrew
Robertson, Hugh
Robertson, Mr. Laurence
Rosindell, Andrew
Russell, Bob
Sanders, Mr. Adrian
Scott, Mr. Lee
Shapps, Grant
Shepherd, Mr. Richard
Simmonds, Mark
Smith, Sir Robert
Soames, Mr. Nicholas
Spicer, Sir Michael
Spink, Bob
Steen, Mr. Anthony
Stunell, Andrew
Syms, Mr. Robert
Teather, Sarah
Tredinnick, David
Tyrie, Mr. Andrew
Vaizey, Mr. Edward
Vara, Mr. Shailesh
Villiers, Mrs. Theresa
Walker, Mr. Charles
Waterson, Mr. Nigel
Watkinson, Angela
Whittingdale, Mr. John
Wiggin, Bill
Williams, Hywel
Williams, Mr. Roger
Williams, Stephen
Wilson, Mr. Rob
Winterton, Ann
Yeo, Mr. Tim
Young, rh Sir George
Tellers for the Ayes:
Andrew Selous and
Mr. Tobias Ellwood
NOES
Abbott, Ms Diane
Ainger, Nick
Ainsworth, rh Mr. Bob
Anderson, Janet
Atkins, Charlotte
Austin, Mr. Ian
Bailey, Mr. Adrian
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Bell, Sir Stuart
Benn, rh Hilary
Benton, Mr. Joe
Berry, Roger
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blizzard, Mr. Bob
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Browne, rh Mr. Des
Bryant, Chris
Buck, Ms Karen
Burgon, Colin
Butler, Ms Dawn
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Ronnie
Caton, Mr. Martin
Cawsey, Mr. Ian
Chapman, Ben
Clapham, Mr. Michael
Clark, Ms Katy
Clark, Paul
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Connarty, Michael
Corbyn, Jeremy
Cousins, Jim
Creagh, Mary
Cruddas, Jon
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
David, Mr. Wayne
Davidson, Mr. Ian
Dean, Mrs. Janet
Dismore, Mr. Andrew
Dobbin, Jim
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Drew, Mr. David
Dunwoody, Mrs. Gwyneth
Eagle, Angela
Eagle, Maria
Engel, Natascha
Ennis, Jeff
Field, rh Mr. Frank
Fisher, Mark
Fitzpatrick, Jim
Flello, Mr. Robert
Flint, Caroline
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Gardiner, Barry
George, rh Mr. Bruce
Gerrard, Mr. Neil
Gibson, Dr. Ian
Goodman, Helen
Griffith, Nia
Grogan, Mr. John
Gwynne, Andrew
Hall, Mr. Mike
Hamilton, Mr. David
Hamilton, Mr. Fabian
Hanson, Mr. David
Harman, rh Ms Harriet
Havard, Mr. Dai
Healey, John
Hendrick, Mr. Mark
Hewitt, rh Ms Patricia
Heyes, David
Hill, rh Keith
Hodge, rh Margaret
Hodgson, Mrs. Sharon
Hood, Mr. Jimmy
Hoon, rh Mr. Geoffrey
Hope, Phil
Hopkins, Kelvin
Howarth, rh Mr. George
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Humble, Mrs. Joan
Hutton, rh Mr. John
Iddon, Dr. Brian
Irranca-Davies, Huw
Jackson, Glenda
James, Mrs. Siân C.
Johnson, Ms Diana R.
Jones, Mr. Kevan
Jones, Lynne
Jones, Mr. Martyn
Jowell, rh Tessa
Joyce, Mr. Eric
Keeble, Ms Sally
Keeley, Barbara
Keen, Alan
Keen, Ann
Kelly, rh Ruth
Kennedy, rh Jane
Khan, Mr. Sadiq
Kidney, Mr. David
Kilfoyle, Mr. Peter
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Love, Mr. Andrew
MacDougall, Mr. John
Mackinlay, Andrew
Mactaggart, Fiona
Mahmood, Mr. Khalid
Mallaber, Judy
Mann, John
Marris, Rob
Marsden, Mr. Gordon
McAvoy, rh Mr. Thomas
McCarthy-Fry, Sarah
McDonnell, John
McFadden, Mr. Pat
McFall, rh Mr. John
McGovern, Mr. Jim
McGuire, Mrs. Anne
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
McNulty, Mr. Tony
Miliband, Edward
Miller, Andrew
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Moran, Margaret
Morden, Jessica
Morley, Mr. Elliot
Mountford, Kali
Mudie, Mr. George
Mullin, Mr. Chris
Murphy, Mr. Denis
Murphy, Mr. Jim
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
Palmer, Dr. Nick
Plaskitt, Mr. James
Prentice, Bridget
Prentice, Mr. Gordon
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, James
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Riordan, Mrs. Linda
Robertson, John
Robinson, Mr. Geoffrey
Rooney, Mr. Terry
Ruane, Chris
Ruddock, Joan
Russell, Christine
Ryan, Joan
Salter, Martin
Sarwar, Mr. Mohammad
Seabeck, Alison
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Short, rh Clare
Skinner, Mr. Dennis
Slaughter, Mr. Andrew
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, rh Jacqui
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stewart, Ian
Stoate, Dr. Howard
Stuart, Ms Gisela
Sutcliffe, Mr. Gerry
Tami, Mark
Taylor, Ms Dari
Taylor, David
Thomas, Mr. Gareth
Thornberry, Emily
Timms, Mr. Stephen
Tipping, Paddy
Trickett, Jon
Turner, Dr. Desmond
Turner, Mr. Neil
Twigg, Derek
Ussher, Kitty
Vaz, Keith
Walley, Joan
Waltho, Lynda
Ward, Claire
Wareing, Mr. Robert N.
Watts, Mr. Dave
Whitehead, Dr. Alan
Wicks, Malcolm
Williams, Mrs. Betty
Winnick, Mr. David
Winterton, Ms Rosie
Wood, Mike
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Tellers for the Noes:
Mr. John Heppell and
Gillian Merron
Question accordingly negatived.
26 Jan 2006 : Column 1574
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