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Standing Committee Debates

Draft Criminal Defence Service (Financial Eligibility) Regulations 2006

The Committee consisted of the following Members:

Chairman: Mr. Mike Weir
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Baird, Vera (Parliamentary Under-Secretary of State for Constitutional Affairs)
Benyon, Mr. Richard (Newbury) (Con)
Crausby, Mr. David (Bolton, North-East) (Lab)
Foster, Mr. Michael (Worcester) (Lab)
Garnier, Mr. Edward (Harborough) (Con)
Havard, Mr. Dai (Merthyr Tydfil and Rhymney) (Lab)
Howarth, David (Cambridge) (LD)
Hughes, Simon (North Southwark and Bermondsey) (LD)
Kidney, Mr. David (Stafford) (Lab)
Linton, Martin (Battersea) (Lab)
Short, Clare (Birmingham, Ladywood) (Lab)
Snelgrove, Anne (South Swindon) (Lab)
Stoate, Dr. Howard (Dartford) (Lab)
Watkinson, Angela (Upminster) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Yeo, Mr. Tim (South Suffolk) (Con)
Mark Egan, Committee Clerk
† attended the Committee

Third Standing Committee on Delegated Legislation

Wednesday 12 July 2006

[Mr. Mike Weir in the Chair]

Draft Criminal Defence Service (Financial Eligibility) Regulations 2006

2.30 pm
The Parliamentary Under-Secretary of State for Constitutional Affairs (Vera Baird): I beg to move,
That the Committee has considered the draft Criminal Defence Service (Financial Eligibility) Regulations 2006.
The Chairman: With this it will be convenient to discuss the draft Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006 and the draft Criminal Defence Service (Representation Orders: Appeals etc.) Regulations 2006.
Vera Baird: It is a pleasure, Mr. Weir, to serve under your chairmanship.
The three sets of regulations will give effect to changes made to the Access to Justice Act 1999 by the Criminal Defence Service Act 2006. It is not long since the House considered the 2006 Act. I remind the Committee of its provisions in this regard. The costs of legal aid have increased significantly. A 35 per cent. increase in spending on criminal legal aid seems disproportionate against the reduction in civil legal aid; in effect, the 2006 Act therefore reintroduced a means test into court applications in respect of criminal cases.
The draft regulations were first published in October 2005, while the 2006 Act was going through Parliament, and we received responses to them from stakeholders. A subsequent version, influenced also by the debates in Parliament, was published in April, and they were consulted on until the beginning of June. We were pleased that the 13 groups to whom we sent them responded, and I have written to thank all who did so. Some sensible changes were suggested. For instance, the Law Society wanted oral hearings on appeals on the interest of justice test, so we included in the regulations a provision that although it is usually done without a hearing, the court may have an oral hearing if required.
Simon Hughes (North Southwark and Bermondsey) (LD): Based on past experience, does the Minister have an estimate of how many appeals there are likely to be on the interests of justice test?
Vera Baird: I cannot tell the hon. Gentleman immediately; if I cannot do so later, I shall write to him.
The 2006 Act reintroduced the test of financial eligibility, and it empowers the Legal Services Commission to grant legal aid rather than the courts. There is a service level agreement between the LSC and the courts, because the court staff will deal with the day-to-day operation of the provision.
In due course, similar regulations will be made for the Crown court. We hope to publish details shortly. The 2006 Act provides for that, and there will be consultation with a view to implementing that system by the end of next year.
Mr. David Kidney (Stafford) (Lab): I declare an interest as a non-practising solicitor. When I was in practice—we have been here before—if legal aid was granted by the Legal Aid Board rather than the court, we practitioners found that huge amounts of money were being wasted while waiting for applications to be dealt with by a body other than the court. We suffered delay and adjournments.
I see that page 3 of the explanatory notes refers to an early cover scheme, on which the Legal Services Commission is consulting. I see no mention of that in the regulations. Will my hon. Friend assure the Committee that she will take an interest in the scheme to ensure that delays are kept to a minimum while people are waiting for decisions on legal aid?
Vera Baird: I am grateful for that intervention. As ever, my hon. Friend has his eye on the ball. I shall say a little more about the early cover scheme later.
I shall concentrate on the financial eligibility regulations. To qualify for legal aid, people will have to satisfy the existing interest of justice test, which everyone knows as the Widgery criteria, and I can say more about that if necessary. Then, on a means basis, a test of affordability weights an applicant’s income to reflect family circumstances and household composition. There will be an upper threshold above which no representation order will be made, and there will be a lower threshold under which representation orders will be granted. For those who fall between the two, a more detailed assessment will be made of their financial circumstances. A person will be eligible for a representation order under regulation 7(1) if his gross annual income, adjusted to take account of any partner or family, is £11,590 or less, and ineligible if it is £20,740 or more. If he falls between the two, the teams will have to calculate the disposable income allowing for income tax, national insurance, council tax and, interestingly, child care costs, as well as any maintenance that is being paid out and the cost of living expenses. An individual will be financially eligible within those tiers if his annual disposable income does not exceed £3,156. The recipients of some benefits—income support, income-based jobseeker’s allowance and guaranteed pension credit—are automatically entitled to a representation order.
Simon Hughes: There might be a long debate about the exact way in which the figures are calculated. Obviously, there are all sorts of criteria. Will the Minister comment on whether it is relevant that the figure that marks the movement from getting some support to getting none—the £20,000-odd figure—bears any relation to the average wage and the median wage, in other words the income figures for houses around the country? I have been told that last year annual gross pay was £18,000 and annual mean pay was £23,000. Was there meant to be any match between the average income of a person or household and the figures in the order?
Vera Baird: It looks as though that is a realistic assumption, given the figures that the hon. Gentleman has provided. I shall ascertain that in the course of the debate and if not I shall write to him about if and how those figures were involved in setting the upper limit.
One of the issues in the debate on the 2006 Act was exactly that considered by my hon. Friend the Member for Stafford (Mr. Kidney). I recall that in the original means test, every applicant had to produce 13 payslips in order to say whether they qualified or not. No wonder there was delay. In most cases, they will now need just one payslip and when they are in receipt of benefits their national insurance number will be okay because the core staff will have a dedicated link to the Department for Work and Pensions’ database.
It is anticipated that correctly completed forms will be processed well ahead of first hearings so that in the majority of cases solicitors will know whether their clients are eligible. They will be under a duty to advise the clients who apply for representation orders as soon as they are charged to try to trigger the process. Where there is a delay, there will be an early cover scheme that will allow for a fixed fee payable to defence solicitors to cover initial preparatory work and representation at the first hearing in circumstances including those in which an application was received within two working days of the charge, no decisions have been made by 9 o’clock in the morning of the first hearing date and the eventual decision is that the case passes the merits test, which means that it qualifies under the interests of justice test, but the defendant does not pass the means test—in other words, it is a good case for legal aid but in the event the person can pay themselves.
Of course, if a defendant arrives at court for a first hearing unrepresented and there is no application, the duty solicitor scheme can be available. The early cover scheme will be extended to allow a five-day time limit, but that is currently in negotiation. That will apply to people who have been remanded in custody, to allow for the fact that it is difficult to get a payslip or any other evidence of means while one is in custody. We are working closely with stakeholders, and that will ensure a minimum of delay in court proceedings. After all, it is in everyone’s interests and we are trying to gear legal aid provision so that it does not interrupt the flow of cases. Apparently, there will be an online ready reckoner so that defence solicitors will have some idea of whether their client is likely to qualify.
It should be noted that where there is a material change in someone’s financial circumstances they can make a renewed application, if the change is in the appropriate direction, and there is a duty to notify the representation authority of a change in the other direction, if that is likely to affect eligibility for an order. Where there has been, or the applicant believes there has been, an error, he can apply to the Legal Services Commission for a review of the determining officer’s decision. Probably a very important protection in the regulations is the fact that the LSC will be able to refer on to the High Court any case in which there are complex legal issues or questions of principle. It would be our view—it is certainly mine—that, if such arguments arose and the LSC did not refer the matter to the High Court, judicial review of the decision would be possible, and the matter could be passed on in that way.
Appeals caused a certain amount of concern during the Bill’s passage. I have already explained the workings of an appeal on an apparent miscalculation, and where there is an important principle of law. Another question that arises is what happens if the applicant thinks that the interests of justice test has been applied incorrectly. There is a right of appeal to the court in that situation, and if the court overturns the decision any application for an order after that will have to be referred back to the grant team for a determination on financial eligibility. I think that I have already said that, among the amendments that we made after consulting stakeholders on the draft regulations, one related to the fact that an appeal of that kind would usually be heard on paper; at the request of the Law Society we provided for an oral hearing if the court thinks fit.
I do not know whether any hon. Members have concerns about human rights compatibility in this context, but there is a special provision about them. Article 6 of the European convention on human rights requires that a person with insufficient means for legal assistance should get it free, where the interests of justice so require. Under a special provision in the regulations—regulation 14—when outgoings are unusually high, so that the calculation of means does not adequately reflect the poverty, as it were, of the applicant, or when the case is unusually costly, so that an applicant who might fail the means test could be subject to real hardship in trying to pay their defence costs, it would be possible to apply to the hardship unit in the LSC, either at the beginning of the application or after its refusal on grounds of means. The hardship review would consider the person’s disposable income and their ability to meet the likely costs. A small number of magistrates court cases are disproportionately expensive.
Mr. Dai Havard (Merthyr Tydfil and Rhymney) (Lab): I have no declaration of interest to make, except that I am not a lawyer. I have also noticed that delays never come from lawyers.
As to the question of the hardship provision and the early cover scheme, and the references in the explanatory notes to scope and eligibility, the Minister has mentioned consultation of various sorts. What will happen when the consultation procedures finish? How will matters proceed?
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Prepared 17 July 2006