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Session 2009 - 10
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Delegated Legislation Committee Debates

Draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2010



The Committee consisted of the following Members:

Chairman: Miss Anne Begg
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Borrow, Mr. David S. (South Ribble) (Lab)
Brake, Tom (Carshalton and Wallington) (LD)
Burgon, Colin (Elmet) (Lab)
Griffiths, Nigel (Edinburgh, South) (Lab)
Hepburn, Mr. Stephen (Jarrow) (Lab)
Howarth, David (Cambridge) (LD)
James, Mrs. Siân C. (Swansea, East) (Lab)
Jones, Helen (Vice-Chamberlain of Her Majesty's Household)
Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
Luff, Peter (Mid-Worcestershire) (Con)
Murphy, Mr. Denis (Wansbeck) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)
Turner, Mr. Andrew (Isle of Wight) (Con)
Winnick, Mr. David (Walsall, North) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Mark Oxborough, Committee Clerk
† attended the Committee

Ninth Delegated Legislation Committee

Wednesday 17 March 2010

[Miss Anne Begg in the Chair]

Draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2010

2.30 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: Appeals etc.) (Amendment) Regulations 2010.
The Chair: With this it will be convenient to consider the draft Criminal Defence Service (Information Requests) (Amendment) Regulations 2010.
Bridget Prentice: It is a delight to serve under your chairmanship, Miss Begg. The regulations are made by the Lord Chancellor under the Access to Justice Act 1999 and are subject to the affirmative resolution procedure under section 25(9) of that Act. It is important to say that although both regulations concern legal aid in criminal cases, the substance is technical, rather than about the principle enshrining legal aid.
The draft Criminal Defence Service (Information Requests) (Amendment) Regulations 2010 are required to support the introduction of means-testing in the Crown court, which began on 11 January this year. They mirror the regulations currently in force in relation to magistrates courts means-testing. That scheme, of course, has been in operation since October 2006 and the current regulations have supported magistrates court means-testing for more than a year.
The amendment regulations provide for the range and accuracy of a defendant’s application for legal aid to be checked by the assessing authority. They will play a key part to provide a level of assurance about the validity of claims and ensure that steps can be taken to protect the legal aid fund from fraudulent applications. Of equal importance is that they ensure that a defendant’s liability to contribute to their defence costs is calculated accurately.
The regulations will allow court staff, on behalf of the Legal Services Commission, to seek information from Her Majesty’s Revenue and Customs and the Department for Work and Pensions about a defendant’s income and capital. The powers necessary for that process were inserted in the 1999 Act by the Coroners and Justice Act 2009. Members of the Committee may recall that the issue of making information requests to check the validity of a defendant’s application for legal aid was thoroughly debated just over a year ago, at the time that the original regulations made their way on to the statute book.
The draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2010 are small, but none the less important, steps to ensure that defendants in the magistrates court who are aggrieved by a refusal of a representation order on interests of justice grounds will now have an enhanced right of appeal against such a refusal. The interests of justice test takes into account a range of factors including whether, in the event of a conviction, the defendant faces a loss of liberty or livelihood and whether the defendant is able to understand the proceedings and take an active part in court. The Government understand that there will be situations in which an initial refusal of a representation order is subsequently found to be incorrect; for example, a defendant might provide further information that will strengthen their application. In order to preserve the element of judicial scrutiny, which is vital to decide an interests of justice test, the new regulations provide that a refusal to grant a representation order on interests of justice grounds can be reviewed in the first instance by a member of the magistrates court staff, with a further appeal to the court itself in the event that the initial refusal is upheld.
It might be appropriate if I pause briefly to explain that that “second bite at the cherry” used to be available to a defendant. When responsibility for granting representation orders was transferred from the courts to the Legal Services Commission, the Ministry of Justice provided for appeals against a refusal to grant a representation order to be heard, in all instances, by the court itself. That was done in response to comments that we took on board during the passage of the Criminal Defence Service Act 2006. The regulations seek to restore the position of a defendant to that which existed prior to the enactment of that legislation.
Not only do the regulations enhance the appeal process, but they free up the courts’ time to concentrate on the efficient, timely disposal of cases. I hope that the Committee will consider that a positive move. The two sets of regulations are necessary and important in developing robust support for the work of the magistrates courts and Crown courts and I commend them to the Committee.
2.35 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under you in Committee, Miss Begg. I declare my interest as a former practising barrister. The Minister’s colleague described me the other day as a former jobbing barrister, which I thought was a tiny bit cheeky.
We support the principles behind the statutory instruments, because the courts must have the powers and the ability to seek information about the means of defendants who have been charged. We were concerned about the principle of extending means-testing to the Crown court and reintroducing means-testing for magistrates, but that argument has been and gone. You would not be happy if I returned to the debates that we had some time ago, Miss Begg.
The Government removed means-testing from magistrates courts and then reintroduced it in October 2006. Will the Minister say how much money has been saved to the legal aid fund annually since then? I am sure that the Ministry of Justice has those figures, because one of the main reasons for reintroducing means-testing was to take the pressure off the legal aid fund. I hope that some detailed analysis of that has been done.
On 11 January, means-testing was introduced for five Crown courts, subsequent to the measures that were brought before the House a while back, on initial implementation. Will the Minister explain why means-testing was only brought in in those five courts? Was that designed to be a pilot? If so, why was not the pilot given a chance to run for a longer period and why was it not subjected to a proper evaluation? Was that just the way that the MOJ decided to bring about the implementation?
Will the Minister tell the Committee something about the savings to the legal aid fund since 11 January? Perhaps she will also say what level of savings to the fund will be brought about through the extension of means-testing to the Crown court, because it is in the Crown court that large expenses are racked up by both sides of the case. In high-cost cases, the costs are rising fast. Although I appreciate that statistics can be made to do many things, the other day a solicitor seemed to be saying to me that 1 per cent. of all criminal cases were taking up more than 45 per cent. of the entire criminal legal aid budget. Some of those cases involve major fraud and others involve charges against people who have substantial means: it is right that they should pay for their own defence, or at least part of it, and right that they should be means-tested.
Has the Minister any idea of the level of savings? The criminal legal aid budget is under pressure and is now in excess of £1.2 billion. It is a demand-driven budget and whichever party is in power after the forthcoming election will find it difficult to make substantial new sums available for legal aid. All hon. Members accept that. We also accept that, in that context, more pressure will fall on the civil legal aid budget, which is based on a more discretionary principle.
Will the Minister give us some idea of what the savings will be? That is the essence of the changes that were made in the teeth of quite a lot of opposition from many quarters, because many people felt that a principle was being breached. We debated that at the time. We would now like to know exactly what those savings will be.
Will the Minister also give Committee members some idea of the new structure that will be set up? There will have to be quite an elaborate structure and framework, of which these SIs will be an important part, to ensure that the means-testing is properly implemented. What lessons have been learnt from the implementation in the first five Crown court complexes in January? Have there been any pressures, problems or complaints about the process being held up? Has access to different information been easily sorted out? Have the people who matter most—the public and defendants—found the arrangements user-friendly, and have lawyers and advisers found it easier to sort things out on their behalf?
We support the principle of the SIs, but we would like answers to those questions.
2.40 pm
The potential to affect seriously access to justice could lead to an increase in unrepresented defendants. The income thresholds for means-testing were set far too low and the Government’s modelling on costs and benefits was flawed. I accept, however, that this is not the place to rehash those arguments. As the Minister said, this debate centres on technical matters.
The content of the regulations relating to criminal defence service information requests is clear. The regulations extend existing powers to request information about a defendant’s financial position from the magistrates court to the Crown court. It is difficult to oppose the provision because it is a consequential amendment, but I would like to reiterate the concerns that have been raised about Crown court means-testing.
When the Coroners and Justice Bill was debated, it was not made clear that the purpose of clause 151 was to pave the way for Crown court means-testing, nor was there a clause stand part debate in Committee. The fact that the Bill was introduced long before the Government’s consultations on Crown court means-testing were concluded adds to the perception that the change was a foregone conclusion and that there had never been any intention to listen to the representations of those who opposed it.
The regulations regarding criminal defence service appeals relate to defendants who are refused publicly funded representation in criminal cases in magistrates courts on the grounds that the interests of justice do not require it. Such defendants currently have a right of appeal to the court against that decision, and the regulations introduce an extra stage of internal review before the defendant is allowed to appeal to the court.
The explanatory memorandum suggests that that constitutes an additional protection for defendants, painting it as an extra right of review. As we understand it, however, that right of review is not an option that defendants can choose to exercise, but an avenue that they must exhaust before they are granted their right of appeal to the court. That will potentially delay and slow down cases. Why do the regulations not appear to prescribe a time frame within which a review must be completed? I hope to receive a response to that point.
The regulations could also create an extra burden on the defendant by potentially forcing them to go through two appeal procedures instead of one. That may discourage people from appealing against the decision, and may leave them unrepresented. May we have some clarification? Would a case be suspended pending the outcome of a review and appeal, or would the defendant have to continue unrepresented while that was resolved?
The explanatory memorandum states that the
“implementation may help save both court time and resource.”
It goes on to say, however, that there is no impact assessment, because
“the impact on the public sector is negligible.”
If no cost-benefit analysis has been performed and the Government do not know how much court time will be saved, why is the implementation taking place? I hope that the Minister can explain. The memorandum says that
“it is designed to facilitate the operational effectiveness of the application process”.
That requires some clarification.
My final point does not relate to the regulations but it is worth raising now. The decision-making body for the granting of legal aid is the Legal Services Commission, which has essentially been abolished in the past couple of weeks, with the resignation of its chief executive. What impact, if any, will the abolition of the Legal Services Commission have on these proposals? How will the executive agency of Government, which I understand is being proposed as a replacement for the LSC, make decisions in an impartial way when in many respects an executive agency is simply required to deliver what the Government want it to deliver? I shall not oppose these regulations as those few questions were on consequential matters, but there are some significant questions that the Minister needs to address.
2.46 pm
Bridget Prentice: I will do my very best to answer the questions. I would never dream of referring to the hon. Member for North-West Norfolk as a jobbing barrister; he is far too lucid and courteous for such a pejorative term. The hon. Gentleman has asked several salient questions. First, he asked how much has been saved and how much will be saved. Since October 2006, there has been a saving in the magistrates court of about £80 million and we would expect, with this scheme, to save something in the region of £50 million a year from 2013-14. That is based on a recession impact forecast, so it is quite possible that the savings will be greater. I hope that the hon. Gentleman will see that there is clear merit in what is happening here.
The hon. Gentleman also asked what savings had taken place in the early adopter courts—the five courts that started in January. To be perfectly honest, it is a bit too early to tell, but contribution orders are already being made and two defendants have paid their full contribution up front, so it seems to be working well there. He asked whether the early adopter areas were pilots as such. They were really designed to test the business processes of the scheme because the savings are required as a priority. If we had had a lengthy pilot scheme, those savings would not have been made. It was quite important that we carried them out.
As far as I am aware, there have been no delays in making assessments and the information exchanges have gone well. In a sense that partially answers one of the questions from the hon. Member for Carshalton and Wallington. From communications with defendants and their representatives, the system seems to be working well. We have had some feedback from solicitors who have made one or two positive suggestions about the information that is given out and how it is dealt with. Those have been taken on board, which has made it much easier for defendants and their representatives to accept and appreciate the scheme as it stands.
The hon. Gentleman asked whether this is a burden on the defendant. The changes in the orders mean that defendants will have further opportunities to challenge a refusal, and the changes will free up time for court cases to be dealt with speedily. Rather than making the court the first port of call for the defendant—which is more likely to delay proceedings—the matter will be dealt with by court staff.
The hon. Gentleman also asked about the number of appeals on the grounds of interests of justice. There were almost 6,000, 5,999 in fact—I am sure there must be another one some place—between January and December 2009, of which just over 5,000 were granted. Allowing a further avenue creates the opportunity for the courts to concentrate on core business.
The hon. Gentleman also asked about the Legal Services Commission and, while that is not directly relevant to this debate, I should say that changing the LSC status to an agency will improve its efficiency in the wider justice system. We believe there is an argument for more closely aligning legal aid policy and its delivery. With agency status, there will be one policy voice focused within the Ministry of Justice. That will streamline accountability for spend while, importantly, protecting individual funding decisions from ministerial involvement.
Finally, the hon. Gentleman said that the Criminal Justice and Immigration Act 2008 and the Coroners and Justice Act 2009 paved the way for the means-testing and therefore these regulations, but said that that was not clear at the time. The Crown court means-testing was first flagged up in the Criminal Defence Service Act 2006. The 2008 and 2009 Acts deal only with the information request, which is more a part of means-testing.
I hope, Miss Begg, that I have answered all the questions that the hon. Gentlemen have asked. As always, I put in the caveat that, if I have not, and when I look at the Hansard report—
Tom Brake: Before the Minister concludes, I should say that as I understand it there is not a specific set time frame for a review. If I am correct, will the Minister confirm why that is the case and whether it is expected that a review will be completed within a certain time? If so, what would it be?
Bridget Prentice: The idea would be to complete the review within a set time. We do not want any possibility of delay, which is the issue that the hon. Gentleman raised earlier. That would not be fair on the defendant and would undermine the purpose of speedy justice. The review will take place at the end of this year and we will be able to see—over a longer period in magistrates courts and a full year in some of the Crown courts—whether any another tweaks need to be made. The hon. Gentleman is right to raise the issue, because the principle of speedier justice is important, and it is clearly unfair to defendants if any delays are built into a system that is meant to enhance their opportunity to have their cases heard.
Tom Brake: I thank the Minister for her response but I think she has misunderstood. My point was about the time scale for an individual’s case to be reviewed, as opposed to the review that the Government are undertaking.
Bridget Prentice: Miss Begg, I may have to write to the hon. Gentleman about that and I will give details to you and the Committee. On that basis, I would like to recommend the regulations to the Committee.
Question put and agreed to.

draft criminal defence service (information requests) (amendment) regulations 2010

Resolved,
That the Committee has considered the draft Criminal Defence Service (Information Requests) (Amendment) Regulations 2010.—(Bridget Prentice.)
2.55 pm
Committee rose.
 
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