The
Committee consisted of the following
Members:
Chairman:
Mr.
George Howarth
Burrowes,
Mr. David
(Enfield, Southgate)
(Con)
Gray,
Mr. James
(North Wiltshire)
(Con)
Hall,
Mr. Mike
(Weaver Vale)
(Lab)
Heyes,
David
(Ashton-under-Lyne)
(Lab)
Holmes,
Paul
(Chesterfield)
(LD)
Howarth,
David
(Cambridge)
(LD)
Iddon,
Dr. Brian
(Bolton, South-East)
(Lab)
Jack,
Mr. Michael
(Fylde)
(Con)
Jones,
Helen
(Vice-Chamberlain of Her Majesty's
Household)
Ladyman,
Dr. Stephen
(South Thanet)
(Lab)
McCartney,
Mr. Ian
(Makerfield)
(Lab)
Mercer,
Patrick
(Newark)
(Con)
Prentice,
Bridget
(Parliamentary Under-Secretary of State for
Justice)
Ussher,
Kitty
(Burnley)
(Lab)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Wyatt,
Derek
(Sittingbourne and Sheppey)
(Lab)
Simon Patrick, Committee
Clerk
attended the
Committee
Third
Delegated Legislation
Committee
Monday 30
November
2009
[Mr.
George Howarth in the
Chair]
Draft
Criminal Defence Service (Representation Orders) (Amendment)
Regulations
2009
4.30
pm
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): I beg to move,
That the
Committee has considered the draft Criminal Defence Service
(Representation Orders) (Amendment) Regulations
2009.
The
Chairman: With this it will be convenient to discuss the
draft Criminal Defence Service (Contribution Orders) Regulations 2009
and the draft Criminal Defence Service (Representation Orders: Appeals
etc.) (Amendment) Regulations
2009.
Bridget
Prentice: It is a delight to serve under your
chairmanship, Mr. Howarth. I hope not to detain you and the
Committee for too long.
The three sets
of regulations are made under the provisions of the Access to Justice
Act 1999. They extend means-testing for legal aid to the Crown court.
The draft contribution order regulations are the main instrument; they
provide the framework under which the new scheme will operate. The
draft Criminal Defence Service (Representation Orders) (Amendment)
Regulations 2009 provide that, in almost all cases, responsibility for
granting representation orders in criminal proceedings in the Crown
court will move from the court to the Legal Services Commission. The
draft Criminal Defence Service (Representation Orders: Appeals etc.)
(Amendment) Regulations 2009 provide for consequential amendments to
the process of appealing against refusals to grant a representation
order.
The
regulations underpin the new scheme, which is to be introduced in
January 2010 at five early adopter centres. They will apply to trials,
committals for sentence and appeals to the Crown court. They will be
extended to the rest of England and Wales between April and June next
year. The purpose of the early adopter phase is to test the processes
that have been developed before the national roll-out and to make
appropriate changes.
The
introduction of means-testing in the Crown court is a central part of
our policy of targeting legal aid for those who need it most, and to
secure best value for money for the taxpayer. That has been the
Governments stated commitment since 2005. The means-testing
scheme that has operated in magistrates courts since October 2006 has
delivered savings to the legal aid fund of more than £80
million, and we forecast savings in the Crown court of more than
£50 million a year by 2013-14.
We believe
that the scheme will target fairly and effectively those convicted
defendants who can afford to contribute part or all of the legal aid
costs because of
their income and/or capital assets. Defendants who have made an income
contribution to the costs during the life of the case but who are
acquitted will have their contributions returned with
interest.
The proposed
scheme seeks to focus legal aid support on the majority of Crown court
defendants who genuinely cannot afford to contribute to their legal aid
costs. We estimate that about three out of four defendants will
continue to receive free representation. Those under 18, and those in
receipt of passporting benefits such as income support, will be exempt
from making a contribution. For those defendants asked to pay a fixed
number of monthly contributions, assessed according to their means, the
scheme will also create a stake in ensuring the timely progression and
disposal of their
case.
The
income threshold in the Crown court will be the same as that operating
in the magistrates court scheme. In addition, we propose a capital
asset threshold of £30,000. Those convicted defendants who have
not covered the costs of their case from income contributions alone
will have their capital assets assessed to determine whether they
should make a further contribution. As I have said, only assets in
excess of the £30,000 threshold which include equity in
property, will be taken into account when determining whether a
contribution from capital is
required.
The
contribution order regulations provide that every defendant appearing
for trial or committal for sentence before the Crown court will be
granted a representation order. The Crown court means assessment scheme
builds on that currently used in the magistrates court and incorporates
elements of
it.
When
supporting evidence is required to enable a fair and proper assessment
of means, defendants will have up to two weeks from the submission of
their application form for legal aid in which to furnish the relevant
information. All defendants remanded in custody by the court will be
able initially to self-certify their means by completing and signing a
statement of truth. The provisions are designed to ensure that there is
minimum delay in the defendant obtaining representation, and in the
representative beginning work on the defendants case. That is
particularly important in indictable-only cases in which the role of
the magistrates court is restricted to a single hearing before the case
moves on to the Crown
court.
The
scheme sets a generous threshold for disposable income. We have made it
clear that defendants, and particularly their partners and their
dependents, should not be unduly disadvantaged by a requirement to make
contributions, whether from income or capital. The threshold that we
have set and the allowances that will be made before a defendant is
required to contribute make us confident that only those genuinely able
to pay will be required to do
so.
I
reiterate that the requirement to pay will, we estimate, affect only
one in four defendants. Some concern has been expressed in the recent
consultation that the draft regulations are about aggregation of income
and assets, and enforcement for non-payment of a contribution order. We
consider that the fairest way of judging whether a contribution should
be payable is to aggregate income and assets at the household level.
That is in line with current civil schemes and reflects the practice
when other means-tested benefits are applied for. However, aggregation
will not take place when a partner has a
contrary interest in the case by being, for example, the victim or a
witness for the prosecution at the trial. The draft regulations
deliberately do not specify what a contrary interest might be so that
such issues can be dealt with on the facts of each case by the court. A
hardship procedure will act as an additional safeguard for those who
believe that they are genuinely unable to pay the
contribution.
Mr.
David Burrowes (Enfield, Southgate) (Con): May I raise the
issue of aggregation of capital? Will the Minister respond to the Law
Societys concerns that the regulations do not provide
sufficient protection for partners with a contrary interest in the
proceedings, and its wish that that be made explicit? It is worried
that victims of domestic violence could be made homeless if their
partner was found guilty, so they would be subject to a conflict of
interest that might perversely affect them.
Bridget
Prentice: Those issues were raised in the consultation,
and I want to assure the hon. Gentleman, the Committee and the Law
Society that we are confident that we have introduced the regulations
in such a way that that will not happen. If the partner is a witness or
the victim, we would ensure that they are not disadvantaged by the fact
that the defendant has been means-tested and assessed. Moreover, I do
not foresee that the partners and/or dependants need have any fear of
being removed from their home. Even if the defendant was not paying up
when they should be, it would be for the court to decide what actions
the Legal Services Commission could take to recover the money.
Obviously, it is highly unlikely that a court would remove a partner
with young children from the home so that the asset could be sold. I
understand why the matter was raised, and I am happy to put it on the
record that it is highly unlikely that people will ever need to be
concerned about it.
There have
been a number of misunderstandings about our position on enforcement.
Enforcement will not take place against partners or dependents; only
against the defendants themselves. It can take various forms, including
attachment of earnings orders, distress warrants, third party debt
orders, pre-conviction charging orders on property and seizure of motor
vehicles,
post-conviction.
My
noble Friend Lord Bach, has made it clear that the option of a forced
sale of a home will be an exceptional last resort, and will be
considered only if there was persistent and wilful refusal by a
defendant to comply with the terms of a contribution order. As I said,
that enforcement action will be subject to an application to a judge.
That judicial safeguard will protect the interests of anyone who might
be at risk from a defendants failure to comply. The decision to
take enforcement action will rest with the Legal Services Commission
after due consideration, not with the enforcement agency undertaking
the administrative elements of the scheme. We have decided that all
enforcement options should be open to the agency, because it is not
right that those who have been fairly assessed as having the means to
contribute towards the costs of their case should seek to evade that
responsibility.
I
have dwelt for some time on important aspects of the new Crown court
contribution order regime. I shall now turn briefly to the other two
draft sets of regulations. The draft Criminal Defence Service
(Representation Orders: Appeals etc.) (Amendment) Regulations amend
regulations that have provided for an appeals process where an
individual has been refused a representation order on the grounds that
the interests of justice did not require representation. A key element
of the Crown court scheme is that all defendants committed, sent or
transferred for trial will pass the interests of justice test, as will
those committed for sentence from the magistrates court. We recognise
that the types of case heard in the Crown court are more serious on the
whole than those in the magistrates court. For that reason, it is only
right that an automatic grant of representation should be made for
defendants appearing before the Crown court. That is provided for in
the new Criminal Defence Service (Interests of Justice) Regulations
2009, which are subject to the negative procedure. The draft Criminal
Defence Service (Representation Orders: Appeals etc.) (Amendment)
Regulations limit appeals against a refusal to grant a representation
order to appeals to the Crown court, which will continue to be subject
to an interests of justice
test.
The
draft Criminal Defence Service (Representation Orders) (Amendment)
Regulations provide that the Legal Services Commission may grant the
right to publicly funded representation in criminal proceedings in the
Crown court. In practice, the LSC will delegate that to staff in
magistrates courts, who are by now very experienced in dealing with
legal aid applications under a means-testing
regime.
There
are four other sets of regulations, all subject to the negative
procedure, which relate to financial eligibility for legal aid in
committals for sentence to the Crown court. Amendments consequential on
the decision that the interests of justice test will be passed for all
Crown court trials. There are amendments that limit the power of the
court to grant representation, and consequential amendments relating to
recovery of defence costs
orders.
The
introduction of a means-testing scheme in the Crown court is designed
to facilitate a sustainable future for the legal aid fund, to ensure
that those who can afford to contribute towards the costs of their case
do so and to underpin our commitment that those most in need of access
to legal advice and assistance will continue to receive it. On that
basis, I commend the regulations to the
Committee.
4.43
pm
Mr.
Burrowes: It is a pleasure to serve under your
chairmanship, Mr. Howarth. I declare an interest as a
practising solicitor, although I practise increasingly infrequently. I
should say at the outset that we support the principle that those who
can afford to pay for or contribute towards their legal aid costs
should do so. We recognise that means-testing is taking place in
magistrates courts and welcome that. Previous attempts to introduce
means-testing in the Crown court and the magistrates court led to a
problem, not so much with the principle, but with the practical
application.
Looking back
at the spectre of means-testing in the Crown court, and the previous
regime in the magistrates court, as I remember it, those regimes were
over-bureaucratic and led to delays and costs that ended up outweighing
the benefits of the contributions gained for the public purse. We do,
though, recognise the current means-testing regime in the magistrates
court, which is proceeding adequately after early teething
problems.
My first
question to the Minister is whether it is right to press ahead with
Crown court means-testing without taking more time to assess the impact
of magistrates court means-testing, particularly with regard to the
numbers of unrepresented defendants. That can have an impact not only,
plainly, on access to justice but on victims and witnesses faced with
an unrepresented defendant. Obviously, there would also be issues
relating to the costs of longer and delayed
trials.
Following
on from that, it is important for the Minister to give details about
another issue. I understand that the Department is considering
contingency arrangements for those very unusual circumstances in which
an unrepresented defendant appears in the Crown court. I understand
that meetings are planned with the Law Society, the Bar Council and
other interested parties. I would be interested to know if there are
any specific plans in relation to those contingency
arrangements.
The Crown
court currently receives information on the means of defendants, but no
contribution is ordered. However, there are powers to issue recovery of
defence costs orders. Amendments were made to the RDCO legislative
framework in October. Should we not take further time to see the true
effect of those changes and to ensure that the RDCOs are more
effective? Does the Minister have the latest information about the
number of RDCOs issued to
date?
Dealing
with the detail, we need to look at the measure in practice to see that
its application deals with what we all want to happen in principle.
There are two particular areas of concern, although I concede that the
regulations seek to address those areas. They are defendants who are in
custody and those who are self-employed. Has the Ministry of Justice
considered whether the three-week period will be sufficient to deal
with self-employed defendants? They may well not have been anywhere
near an accountant, from whom they must receive a statement of accounts
or the requisite information. Such defendants may well live on the
basis of a cash-in-hand arrangement. Is the three-week period of grace
for such a defendant adequate? I am thinking particularly of those who
find themselves in custody, and who are then asked to come up with
audited accounts, or something
similar.
Another
area that the Minister touched on briefly concerns the impact on the
innocent partner in any case involving a defendant. I ask the Minister
to address further the concerns of the Law Society, particularly as it
says in its briefing on the regulations that it is concerned to ensure
that the Minister, in the Government response today, addresses the
situation in which the home is inhabited by the defendant and their
partner, although the home is entirely owned by the defendant and can
therefore be included in the assessment of means. The Law Society has
concerns that a potential effect of the regulations will be to give a
defendant in a domestic violence case the power to threaten the
complainanthis or her partnerwith homelessness if they
continue with their proceedings. Do the regulations properly deal with
that situation and give the proper, necessary
reassurance?
However,
I welcome the Ministers and the Departments response to
the consultation, and particularly their decision that there is no need
now to collect contributions
for income earned following a conviction. I also welcome the pragmatic
approach taken on issues such as passported-through orders, to enable
prompt Crown court representation.
However, the
Governments response to the consultation
says:
The
impact of the new scheme will be greatest in the magistrates
courts.
It
should be noted that the administrative burden of processing the
means-testing in the Crown courts will fall on the magistrates courts
and, in particular, on the legal aid court officers in those
magistrates courts. Given that 6,000 or so applications will be removed
from the Crown courts and will be determined by magistrates court
staff, has the Minister fully assessed the impact on magistrates court
staff, who are already burdened by magistrates court applications and
the means tests? Furthermore, has she considered the potential knock-on
effect on the court staff in relation to the timely granting of
representation orders, both in the magistrates courts and Crown
courts?
During the
so-called adopter phase, will the Minister pay
particular attention to the impact on resources in the magistrates
courts as a result of the potential barriers faced by defendants with
mental health and learning difficulties, who will have to deal with the
new regime and new forms? Finally, can some assurance be given to the
Committee that the speeding-up of the national roll-out will not be at
the expense of sharing good practice, or solving the operational
difficulties that will arise in the relatively short time between the
adopter phase and the roll-out? On the basis that we
will receive answers to those questions, we do not propose opposing the
regulations.
4.50
pm
David
Howarth (Cambridge) (LD): It is a pleasure for me to serve
under your chairmanship for the first time, Mr.
Howarth.
I am afraid
that I oppose the regulations and the scheme, as a matter of principle.
The principle is that improper pressure should not be put on innocent
defendants to plead guilty in criminal trials. I am afraid that there
is a danger, under the regulations, that innocent people will plead
guilty to avoid the risk of the double disaster of being found guilty
and having to pay the costs of their defence.
There is a
question of degree in relation to the amount of pressure involved. If
we were to ask for a £100 contribution from a millionaire, that
would obviously not be pressure, but the question is where to draw the
line. The problem with the regulations is precisely where the line has
been drawn by the Government. Under their proposals, criminal
defendants could be required to pay up to £185,000 of the cost
of their defence. They would be asked to pay not so much a contribution
as the whole cost, as long as their finances came within the right
band. Defendants already face the problem of the pressure to plead
guilty; for example, a discount in sentence is offered for guilty
pleas.