The
Committee consisted of the following
Members:
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
defendants 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 defendants
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 Majestys Revenue and
Customs and the Department for Work and Pensions about a
defendants 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 defendants 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 Ministers
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 mostthe public
and defendantsfound 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
Tom
Brake (Carshalton and Wallington) (LD): It is a pleasure
to serve under your chairmanship, Miss Begg. As the Minister has set
out, the background to the
statutory instruments relates to the introduction of means-testing for
legal aid to Crown court defendants. The Liberal Democrats opposed the
introduction of means-testing when the SIs were introduced last
November, and I would like briefly to remind members of the Committee
about why we did that.
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 Governments 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 defendants 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
Governments 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
courtsthe 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.
To answer the
hon. Member for Carshalton and Wallington, there have been no major
issues about the processes. There have been something in the region of
5,000 means-testing cases and we are already starting to evaluate the
early adopter areas. That will be completed early next month. It is
part of the lessons learned. Events have been held and solicitors have
been giving us broadly positive feedback. Certainly we have had no
complaints so far. I am tempted to touch wood, but let us hope that
that continues.
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 defendantwhich is more likely to delay
proceedingsthe 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 factI
am sure there must be another one some placebetween 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
seeover a longer period in magistrates courts and a full year
in some of the Crown courtswhether 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
individuals 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.