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House of Commons
Session 2009 - 10
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Public Bill Committee Debates



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 Government’s 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 defendant’s 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 Society’s 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 defendant’s 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.
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 complainant—his or her partner—with 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 Minister’s and the Department’s 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 Government’s 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.
 
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