The
Committee consisted of the following
Members:
Chairman:
Mr.
Gary Streeter
Armstrong,
Hilary
(North-West Durham)
(Lab)
Brake,
Tom
(Carshalton and Wallington)
(LD)
Burrowes,
Mr. David
(Enfield, Southgate)
(Con)
Davies,
Philip
(Shipley)
(Con)
Dhanda,
Mr. Parmjit
(Gloucester)
(Lab)
Harris,
Mr. Tom
(Glasgow, South)
(Lab)
Hesford,
Stephen
(Wirral, West)
(Lab)
Howarth,
David
(Cambridge)
(LD)
Kawczynski,
Daniel
(Shrewsbury and Atcham)
(Con)
Laxton,
Mr. Bob
(Derby, North)
(Lab)
Lucas,
Ian
(Wrexham) (Lab)
Malik,
Mr. Shahid
(Parliamentary Under-Secretary of State for
Justice)
Moran,
Margaret
(Luton, South)
(Lab)
Stanley,
Sir John
(Tonbridge and Malling)
(Con)
Turner,
Dr. Desmond
(Brighton, Kemptown)
(Lab)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Gosia McBride, Committee
Clerk
attended the
Committee
Fifth
Delegated Legislation
Committee
Wednesday 11
February
2009
[Mr.
Gary Streeter in the
Chair]
Draft
Criminal Defence Service (Information Requests) Regulations
2009
2.30
pm
The
Parliamentary Under-Secretary of State for Justice (Mr.
Shahid Malik): I beg to
move,
That
the Committee has considered the draft Criminal Defence Service
(Information Requests) Regulations
2009.
It
is a pleasure to move the motion under your stewardship, Mr.
Streeter. I know that that is said often, but I say it very
sincerely.
This
instrument allows the Legal Services Commission, as the authority
responsible for granting publicly funded representation in criminal
cases, to request specific information from the Department for Work and
Pensions or Her Majestys Revenue and Customs for the purpose of
confirming details submitted by an applicant in relation to their
financial eligibility for criminal legal aid. It follows implementation
of section 57 of the Criminal Justice and Immigration Act 2008, which
inserted paragraphs 6 to 8 into schedule 3 to the Access to Justice Act
1999.
Means-testing
was introduced in the magistrates courts in October 2006. The
Government have a clear responsibility to ensure that legal aid is
granted only to those applicants who are financially eligible under the
new scheme, and that the process of assessment and grant is as speedy
and efficient as possible. That is essential if legal aid resources are
to be targeted at the most vulnerable while ensuring that those who can
afford to pay their defence costs are properly asked to do so.
Implementing an effective process by which an applicants
financial status can be verified correctly is clearly central to
meeting the objectives of the means-testing scheme, at the same time as
maintaining the schemes integrity and
reputation.
For
members of the Committee who are not familiar with the means-testing
scheme, I should point out that certain categories of applicant are
automatically passported through the financial eligibility test,
including defendants under the age of 18 and those in receipt of one of
the four passporting benefits: income support, income-based
jobseekers allowance, guaranteed state pension credit, and
income-related employment and support allowance. Although the
means-testing scheme now works well in the magistrates courts, we
continue to look at ways to improve itfor example, the new
arrangements in this statutory
instrument.
To
date, there has been a formal agreement between the DWP and Her
Majestys Courts Service that allows HMCS to confirm whether
applicants are in receipt of a benefit that renders them financially
eligible for legal aid without further assessment of their income.
There is also an informal agreement that allows confirmation of other
forms of benefit income with the DWP and other
forms of non-benefit income with HMRC. This instrument will put those
working practices on a much clearer statutory
footing.
Not
every application undergoes verification. For example, to avoid delays,
applications may be accepted on the basis of self-certification. For
such cases, the Legal Services Commission has, in agreement with the
National Audit Office, adopted a system of proportionate post-event
checks, to ensure that any risk to public funds is kept at or below an
acceptable level. However, although such checks are undertaken with the
written consent of the applicant on the legal aid form, the Government
believe that a more comprehensive and effective framework is required
to support the process. Such a framework would assist with individuals
who declare zero income on their application forms. Although the Legal
Services Commission would not be able to demonstrate conclusively that
an applicant had no income, appropriate checks with the DWP would
confirm whether a defendant was receiving any benefits, and checks with
HMRC would confirm any legitimate income. That will prove invaluable in
combating potential
fraud.
The
amendment to primary legislation supported by the new statutory
instrument will put the arrangements on a much more formal footing and
allow for the necessary robustness and scrutiny. A second related
statutory instrument, the Criminal Defence Service (Information
Requests) (Prescribed Benefits) Regulations 2009, was laid on 9
February 2009. It details the list of benefits to be considered when
assessing an individuals benefit status. While the amendments
to schedule 3 of the 1999 Act detailed some of the information that may
be the subject of a request, such as name, address and national
insurance number, the regulations can specify further information that
might be
sought.
The
statutory instrument under discussion specifies that information may be
requested about an individuals income, capital gains and
benefits administered by HMRC. It also applies to information about the
applicants status as a company director or partner in a
business. Schedule 3 also allows information to be requested about any
benefits that the applicant is receiving from the Department for Work
and Pensions. The statutory instrument extends that to benefits
received during the two-year period that precedes the legal aid
application.
I
stress that the new arrangements will not make a substantial difference
to defendants, solicitors or courts in their forms or processes. There
is therefore no risk of a delay to existing court proceedings or of
placing an additional burden on defendants or, indeed, solicitors.
Members of the Committee might wish to note that both the affirmative
statutory instrument and the negative statutory instrument were the
subject of a 12-week consultation exercise last summer. The exercise
generated three responses from the Crown Prosecution Service, the Law
Society and the Justices Clerks Society, and all were broadly
supportive of the Governments
proposals.
Nothing
within the new legislative framework dilutes the Governments
obligations to protect an individuals personal information and
to maintain confidentiality. Indeed, primary legislation expressly
forbids any disclosure of information that contravenes the
Data Protection Act 1998. It specifically makes it a criminal offence
to disclose the information for a purpose other than that related to
the administration and operation of the means
test.
Philip
Davies (Shipley) (Con): I am sure that all the
reassurances given by the Minister are helpful but, given the many
leaks by Government agencies of private information over the past few
years, what confidence can people have in the fact that the information
will not be leaked or used for other
purposes?
Mr.
Malik: I am pleased that the hon. Gentleman is reassured
by what I had to say, and I hope to reassure him further.
Following the
publication of Sir Gus ODonnells data handling report
on 25 June 2008, which deals expressly with the matter raised by the
hon. Gentleman, I can confirm that officials in my Department are
undertaking a privacy impact assessment of the data sharing
arrangements. That will be taken forward in liaison with the
Information Commissioners office, and a final document will be
published on the Ministry of Justice website. We are confident that the
proposed arrangements for requesting information set out in the
regulations are both necessary and proportionate, and that proper
measures are in place to afford sufficient protection to
applicants.
Philip
Davies: Will the Minister give
way?
The
Chairman: I think that the Minister has
finished.
2.39
pm
Mr.
David Burrowes (Enfield, Southgate) (Con): It is a
particular pleasure to serve under your chairmanship, Mr.
Streeter. I understand that this is your debut. I am not sure whether
you should have a cap to celebrate your first occasion out as a
Chairman, given that we will be celebrating David Beckhams
historic 107th cap this evening. I do not know if you would wish to
have as many caps as a Chairman, Mr. Streeter, but I wish
you well. As you share some responsibility for encouraging me into the
House, you will have to share responsibility for enduring these minutes
as I go through the statutory instrument. Before we go into the detail
of the regulations, I declare a particular interest as a criminal
defence solicitor.
The quality
of the rationale behind the statutory instrument is sound, in terms of
ensuring that criminal legal aid is accurately and properly guaranteed
to those applicants who meet the appropriate financial eligibility
criteria. That rationale formed the basis for paragraph 6 of schedule 3
to the 1999 Act, inserted by section 57 of the 2008
Act.
The
process for verifying means test applications has previously been
reliant on a voluntary arrangement, with the defendant giving his
written consent for verifying financial information. While the 2008 Act
paves the way for the regulations, we need to ask whether it is
appropriate, at this time, to put current practice on to a statutory
basis. Essentially, the application form, which provides the basis for
justifying the means that will then form the determination for the
legal aid officer, is signed by defendants on a voluntary basis, who
make the declaration that they are willing for their information to be
verified to find whether they are in receipt of benefits or in
work.
That is what
takes place. I am not aware of any incidents when an applicant has
refused to provide that consent. Will the Minister provide some
evidence of what has happened so that we are reassured that it is
important to move beyond the voluntary arrangement of consent by the
applicant to one of a statutory basis to obtain the relevant
information?
Hilary
Armstrong (North-West Durham) (Lab): What does the hon.
Gentleman suggest should be done if people refuse to provide their
consent
now?
Mr.
Burrowes: The right hon. Lady raises a good point, which
relates to whether there is evidence of anyone refusing. The purpose of
the regulations is to ensure that there is a gateway so that the court
officer can look at the DWPs computer records to see whether a
benefit is not only applied, but properly
applied.
The
rationale behind the regulations is to ensure that there is a
time-limited process so that there are no delays from when the
application is put in to the point at which there is verification of
the person being on benefits or in work. The question is whether there
is evidence that delays result from the process of verification and
whether the delays go upstream from the application being lodged, to
when the court officer will consider it and then go through the
verification process. That process is currently carried out by way of
voluntary agreements, rather than on a statutory basis, as proposed in
the regulations.
Practitioners
and others are concerned that the Governments approach to
cluster administration officers away from courts means that a delay is
already built into the system. So there is a delay before an
application is even considered, and that is before we lock into the
proposals, which will ensure that a gateway is open to verify benefits.
Has the Minister fully considered whether the concern about delay could
be properly met by dealing with the administrative log-jams rather than
necessarily through the process that is being
proposed?
The
policy idea came from a letter sent in the beginning of June 2007 by
the hon. and learned Member for Redcar (Vera Baird). It
concluded:
Lastly,
in response to practical concerns raised about the working of the real
time link between courts and the DWP to process means test applications
from those in receipt of passportable benefits, it is
proposed to introduce a statutory gateway to ensure applications are
dealt with as swiftly and accurately as
possible.
The
rationale is focused primarily on timing, and that is our concern. It
is important that the Minister can justify dealing with the issue of
timing in the regulations rather than by dealing with existing
administrative problems in the system.
The letter
focused on passportable benefits and the need to ensure that they are
dealt with swiftly and accurately. If we look at schedule 3 to the 1999
Act, as amended by the 2008 Act, it is clear that the information
request goes beyond simply asking for information from the Department
for Work and Pensions and includes going to Her Majestys
Revenue and Customs for employment information. Paragraph 6(3) is
about
the
disclosure of...information...whether or not the individual
is employed...the name and address of the employer...the
individuals national insurance
number,
and
sub-paragraph (3)(d) refers to any other information made by way of
regulation.
Philip
Davies: My hon. Friend is making a good point. The
regulations request a lot of informationabout employment,
pension income, social security income, traded income, property income,
savings and investment
income, and any other income beyond that. The Minister said that the
Government were conducting a privacy impact assessment. Does my hon.
Friend not think that it might have been better had they conducted the
privacy impact assessment beforehand, rather than
after?
Mr.
Burrowes: I do not take much reassurance from that privacy
impact
assessment.
We
need to ensure that legislation before the House is properly
evidence-based. There is evidence that the verification process is
being extended beyond what was anticipated not so long ago in the 2008
Act, as set out in paragraph 6(3)(a) to (c) of schedule 3 to the 1999
Act, which requested wholly reasonable information about employment and
national insurance number. However, extending it by regulation to a
whole host of other areas raises a question that the Minister needs to
answer. What is the evidence for extending that verification
process?
That
goes to the heart of the purpose of the regulations. Is the purpose as
set in that letter of June 2007? Let us remember that the reference is
to benefits and not to other areas of concern to HMRC. The letter
stated:
The
statutory gateway would only allow the sharing of relevant information
for the specific purpose of administering the grant of legal
aid.
The
Minister sought to assure us that that is the purpose of the
regulations. Will he confirm that the other categories of
informationemployment, income and capitalwill be
gathered purely for the purposes of a legal aid application, or could
that go wider and be used for something for which we would seek
justification? Could it go into the area of identifying fraudulent
claims and practice? Is that at the root of the additional information
that is being requested of applicants, when dealing with their private
income? Has an assessment been made of the need to go down that
route?
The
costs and benefits are analysed in the impact assessment that was
provided for the 2008 Act, which is helpfully appended to the
explanatory memorandum. The point is made that there is a need for
secondary legislation because there would be the benefit of detecting
fraud quickly. That seems to be one reason why we have the regulations.
However, their focus, and the specific purpose for which our agreement
is sought, is to administer the grant of legal aid. That is the primary
intention of the regulations. It is not to detect fraud; other pieces
of legislation are in place that properly do that. Will the Minister
provide some evidence, or clarification, that the purpose is the
specific one identified in June 2007, or is this a broader agenda of
using the information that will be obtained in order to carry out
investigation in relation to
fraud?
The
issue of fraud is a real one. It is raised many times. I do not propose
to go into that debate, but one problem is the overpayment of benefits,
not least for prisoners who continue to receive benefits while in
prison. The extent of that abuse of the system has been identified by
the Public Administration Committee. It would be tempting to use the
information, including receipt of benefits, obtained from imprisoned
legal aid applicants to flag up a prisoner who is in receipt of
benefits and continues to receive them. An inquiry could then be
conducted about repayment and fraudulent claims
Will the
Minister clarify whether the information obtained by this gateway
scheme, subject to the regulations, will be used to detect and combat
fraud? If that is the case, we need to be aware of it. It might be a
justifiable aim, but it has not been identified as a specific purpose.
There might be other ways in which that could take place.
Finally, one
of the aims is to have accurate information when determining
applications. Will the Minister provide information about the number of
investigations that have already taken place regarding those
disclosures that take place day in, day out, when signatures have been
put to information that might not be accurate? Have there been any
investigations regarding the accuracy and fraudulence of legal aid
application forms? Have any prosecutions or convictions arisen from
that? Subject to those answers, I do not intend to oppose the
motion.
2.51
pm
Tom
Brake (Carshalton and Wallington) (LD): It is a pleasure
to serve under your chairmanship, Mr. Streeter. I am sure
you will ensure that matters are concluded more swiftly than they were
are at many meetings of the Westminster Foundation for Democracy that
we jointly attended.
I echo many
of the points made by the hon. Member for Enfield, Southgate. The
statutory instruments represents another incremental encroachment on
privacy issues and an incremental growth in data sharing. I echo the
point made in an intervention that the Government do not have a good
track record when it comes to safeguarding peoples data. The
greater the exchange of data between Departments, the greater the risk
of information that we do not want in the public domain seeping
out.
There are
privacy implications, and I hope that when the Minister responds he
will clarify his point about conducting a privacy impact assessment. It
was not clear whether he was saying that that was happening across the
Department as a whole, or whether it was happening specifically in
relation to the statutory instrument. As has been mentioned, it would
have been preferable for the privacy impact assessment to have been
conducted before, rather than after, the statutory instrument was
presented to the Committee.
I echo some
of the questions raised and perhaps the Minister will confirm whether
the statutory instrument is being introduced because a high level of
fraud has been detected. If that is the case, perhaps he can give us
some figures on how much, how often and what sums of money are
involved. Will he clarify whether the measure is due to delays in
applications and what the source of those delays is? Is it to do with
saving money? If so, are the Government committed to ploughing back any
savings into the criminal legal aid budgetsomething that we are
concerned about in terms of the overall level of funding? I hope that
the Minister will provide clarity on that.
The summary
analysis of the explanatory memorandum tells us that
much more
comprehensive information about an applicants financial status
can be disclosed.
There is a long list of
such information in regulation 3, but is there any other relevant
financial information, or is there any information that could not be
disclosed as a result of a request?
The Minister
reassured us that the Government will safeguard the data. Will he
explain who from within the Legal Services Commission will be entitled
to seek that information? Could that be any employee of the LSC? Are
there grades regarding at what level such a request can be
made?
Those are my
key questions. I wish to restate my concern that there seems to be a
general trend towards more data sharing without the right level of
scrutiny. It is not appropriate to raise concerns that we have on
clause 152 of the Coroners and Justice Bill today, but I say in passing
that it seems to allow an almost carte blanche approach when it comes
to requesting data. The clause has been drawn extremely broadly, and
will enable the authorisation of data sharing with any person in
pursuit of any relevant policy objective. The statutory instrument is
just another example of that level of data sharing without the
safeguards, perhaps leading to the sorts of databases that the
Government have talked about implementing, and that should be a source
of
concern.
2.55
pm