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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Mr. David Amess
Blackman-Woods, Dr. Roberta (City of Durham) (Lab)
Bone, Mr. Peter (Wellingborough) (Con)
Brake, Tom (Carshalton and Wallington) (LD)
Davies, David T.C. (Monmouth) (Con)
Garnier, Mr. Edward (Harborough) (Con)
Hall, Mr. Mike (Weaver Vale) (Lab)
Heyes, David (Ashton-under-Lyne) (Lab)
Howarth, David (Cambridge) (LD)
Jones, Helen (Vice-Chamberlain of Her Majesty's Household)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Mullin, Mr. Chris (Sunderland, South) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)
Smith, Mr. Andrew (Oxford, East) (Lab)
Soulsby, Sir Peter (Leicester, South) (Lab)
Tyrie, Mr. Andrew (Chichester) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Mark Etherton, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 7 July 2009

[Mr. David Amess in the Chair]

Draft Criminal Defence Service (Provisional Representation Orders) Regulations 2009
10.30 am
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I beg to move,
That the Committee has considered the draft Criminal Defence Service (Provisional Representation Orders) Regulations 2009.
It is a pleasure to serve under your chairmanship, Mr. Amess.
Before I speak about the regulations, may I make you and the Committee aware that reference to paragraph 2A(1)(c) was inadvertently omitted from the preamble in the draft before us? We have consulted the Joint Committee on Statutory Instruments on that omission. As a result, a correction slip has been published to correct the draft before the Committee. I assure the Committee that the omission does not affect the substance of the regulations.
The regulations are being made to provide for publicly funded legal representation in cases of investigations of serious or complex fraud, governed by the guidelines on plea discussions in those cases, which were issued by my right hon. and noble Friend the Attorney-General on 18 March. The Criminal Justice and Immigration Act 2008 inserted paragraph 1A into schedule 3 to the Access to Justice Act 1999, titled
“Individuals to whom right may be provisionally granted”.
The regulations are made under that paragraph, and under paragraph 2A(1)(c).
At the time of making that amendment to the 1999 Act, we envisioned making regulations to deal with plea discussions recommended in the final report of the fraud review published in July 2006. It made a number of recommendations encompassing the prevention, reporting, measurement, investigation and prosecution of fraud. The underlying message, which was fully accepted by the Government, was that an overarching fraud strategy linking all areas was essential to draw in all interested parties throughout the public and private sectors.
On fraud prosecutions, the report recommended that a framework—a new guideline—for the conduct and acceptance of pleas by prosecutors in fraud cases be issued by the Attorney-General. Detailed proposals for the framework on plea discussions were the subject of a public consultation in 2008. With some caveats, which have now been addressed, the majority of respondents supported the implementation of the framework.
Three key principles are enshrined in our criminal justice system. First, the prosecutor’s duty is to ensure that the case is put before the court in a way that reflects the true facts and the full gravity of the offence. Secondly, the defendant must not be put under any improper pressure to plead guilty, so the framework does not add any new incentive or sentence discount that would reward a defendant for reaching a plea agreement. Thirdly, the court must have unfettered discretion to pass the right sentence in all circumstances of the case. It is important to emphasise that the court’s hands will not be tied in any way by the process. The Attorney-General is confident that the proposed framework safeguards those principles. It has been designed to complement the legal system of England and Wales, rather than be copied from another jurisdiction, where different considerations may arise.
Currently, a representation order for publicly funded legal representation in criminal cases may be granted only after an individual has been charged. The regulations will allow the provisional grant of a representation order at an earlier point in the investigation process, so that the prosecution and the defence can discuss and, in appropriate cases, agree the basis of a guilty plea. If a plea agreement is reached, the case will proceed to the Crown court in the usual way. Judicial discretion will not be fettered in any way, so judges may accept or reject the plea agreement as they see fit.
The regulations also make provision for circumstances in which provisional representation orders must be withdrawn. Broadly speaking, the Legal Services Commission must withdraw the provisional representation order in circumstances where the plea discussions come to an end when an individual is charged or after three months have elapsed. The commission must also withdraw a provisional order where it believes that the plea discussions are unlikely to lead to a plea agreement.
The Attorney-General’s guidelines will encourage discussions for guilty pleas in fraud cases to happen much earlier and more transparently. Avoiding costly and lengthy fraud trials would be beneficial for the whole criminal justice system, including legal aid, and would provide an earlier outcome for victims and witnesses, as well as for defendants.
The three-month lifespan of provisional orders may be extended once only on application to the commission for a period of up to three months. That limited period is important to ensure that the process is not allowed to drift and that, if unsuccessful, it does not cause delays in some cases.
The regulations will cease to have effect on 31 December 2011, at which stage we will evaluate the effectiveness of the process. If the provision proves to be beneficial to the criminal justice system by saving time and money and by producing earlier resolution for victims and witnesses, we envisage introducing a scheme based on graduated fees, in common with many other areas of legal aid. The Lord Chancellor will need to amend two other statutory instruments by negative procedure before provisional representation orders can be implemented on 1 August 2009.
10.37 am
Mr. Edward Garnier (Harborough) (Con): May I join the Minister in welcoming you to our deliberations, Mr. Amess?
The statutory instrument relates to the Access to Justice Act 1999. Never was an Act of Parliament more egregiously misdescribed; it has led to the denial of access to justice to huge numbers of our citizens. I trust that we will be able to do something about that at some stage.
Can the Minister persuade me that the statutory instrument is not a device to bribe potential defendants to plead guilty in matters of fraud? It is clearly a device to save the Legal Services Commission the money that would be incurred in prosecuting cases lasting more than 25 days. We all need to keep an eye on public resources, but how do we ensure that undue pressure is not put upon defendants to plead?
What about investigations where a defendant is persuaded through fair means or foul to plead, only for it to later become apparent that either the legal or the factual basis of the plea is different from what is actually the case? Is there any basis upon which the plea that has been accepted can be undone and the matter put to the defendant again, so that he is able either to contest or to agree to the factual basis that then pertains and to plead to a charge that is relevant to the subsequently revealed facts?
The Minister mentioned that the statutory instrument will not affect the sentencing discretion of the court. That was a deliciously witty remark, bearing in mind that the Coroners and Justice Bill, which is going through Parliament, expressly limits the discretion of sentences. She and I served on that Bill Committee, so she knows that the Sentencing Guidelines Council, which was established under the Criminal Justice Act 2003, is being abolished to be replaced by the sentencing council, and that the sentencing council’s remit is rather different from that of the SGC.
Under the 2003 Act, the SGC allowed sentencers—I declare an interest as one—to have regard to its advice, whereas the scheme under the Coroners and Justice Bill, which is currently in the other place, states that sentencers must follow the decisions or advice of the sentencing council. The Bill therefore removes discretion, which has caused a great deal of alarm and discussion in judicial circles and in the press. No doubt, the Minister is well aware of that and will have an answer that demonstrates that the regulations either conform to that or do not, in which case we are entitled to a proper explanation.
To move on to a subset of the same point, if the regulations do not have an impact on sentencing, what is the point of them? We are talking about persuading people that it would be sensible, having taken advice of one sort or another, to plead in serious fraud cases that could last, if tried, more than 25 days. There is no point in trying to persuade a defendant who might be guilty, or is persuaded that there is sufficient evidence to convict him, to plead guilty if he will not get some form of discount or leniency in relation to the sentence. I should have thought that the whole point was to save money, yes, but also to enable the courts to sentence persuasively.
Jeremy Wright (Rugby and Kenilworth) (Con): Is my hon. and learned Friend also concerned about this point? At the moment, he, as a sentencer, and other sentencers are entitled to give credit to a defendant for a guilty plea entered at the earliest opportunity. If this legislation takes effect, will the earliest possible opportunity be during the investigation stage and therefore full credit will not be available at the beginning of the court proceedings?
Mr. Garnier: My hon. Friend is entirely right to ask that question, which, no doubt, the Minister will be able to answer in a few minutes.
Finally, I want to know, because the regulations and the explanatory memorandum are silent on this, what the estimated cost is to the public purse and in particular to the Legal Services Commission of providing the legal advice and representation that the regulations envisage. How many potential defendants—potential accused—are we talking about? If we are talking about restricted public expenditure systems between now and 31 December 2011—or what the Prime Minister now calls zero per cent. growth—will the Minister give us a taster of how she sees this moving on beyond 31 December 2011?
10.43 am
Tom Brake (Carshalton and Wallington) (LD): It is a pleasure to see you in the Chair, Mr. Amess.
I thank the Minister for her explanation of the regulations. The Liberal Democrats welcome anything that helps to tackle serious fraud, and it is heartening to see the Government accepting a recommendation by the OECD to extend the plea negotiation framework to corruption cases. As a country, we do not have a particularly good reputation in relation to corruption and bribery. Therefore, I am sure that implementing the recommendations will be the beginning of a process of rebuilding our reputation.
The framework that the Minister set out has the potential for serious and high-profile cases partly to bypass the court system. Although she made it clear that the courts’ hands will not be tied and appropriate safeguards are in place, we want to know that serious and high-profile cases will still get the airing that they should. Some organisations have expressed strong reservations about the fact that the approach of encouraging plea discussions could lead, for instance, to companies that are alleged to have committed serious fraud or corruption avoiding the intense public scrutiny that would go with a full criminal trial. I hope that the Minister will reassure us that such cases will receive the public scrutiny that we would all think was appropriate.
I should like to raise some minor points. First, how much will it cost to introduce legal aid at an earlier stage? No doubt, the Minister will say that savings will be derived from that, but it is important for hon. Members to know what costs are associated with it, particularly as the trend in legal aid is to try to cut costs, rather than to increase them.
The explanatory memorandum states:
“Draft instruments will make further changes, beyond those related to plea discussions”.
I hope that the Minister will set out what those further changes might be and what she has in mind.
Finally, the Government have said that they intend to introduce a graduated fees scheme in 2012—something that we would support—by contrast to the fixed fee system that they appear to be introducing in other areas of legal aid. I hope that the Minister will explain why the Government are going for a graduated fee system in this instance and a fixed fee scheme in most other cases.
10.46 am
Mr. Peter Bone (Wellingborough) (Con): The explanatory memorandum refers to matters of special interest to the Joint Committee on Statutory Instruments. It is rather brief. It says, “None”. That Committee meets every week, not to consider the merits of a statutory instrument, but to consider whether it is legally correct and drafted properly. It would have helped if the memorandum had stated that this statutory instrument had been considered by the Committee, because we would know whether the Committee considered it to be drafted correctly.
One of the considerations is whether legislation is intra vires, but another consideration is that of timing. There is a 21-day rule, and the statutory instrument clearly complies with that rule as it is being considered today and will come into force on 1 August. However, I was particularly worried by the Minister’s closing sentences when she said that if the legislation comes into force on 1 August, two other statutory instruments will have to be amended by negative procedure. I do not see how they can be amended and keep within the 21-day rule. Will the Minister enlighten the Committee on how the Government plan to overcome that problem?
10.47 am
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Prepared 8 July 2009