3 The right to provisional legal aid
and EU law
| (a)
(35652)
17635/13
+ ADDs 1-3
COM(13) 824
(b)
(35657)
17643/13
C(13) 8179
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Draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant Proceedings
Commission Recommendation of 27.11.2013 on the right to legal aid for suspects or accused persons in criminal proceedings
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| Legal base | (a) Article 82(2) TFEU; QMV; co-decision
(b) Article 288 TFEU;—
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| Department | Ministry of Justice
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| Basis of consideration | Ministers' letters of 6 February and 26 February 2014
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| Previous Committee Report | HC 83-xxix (2013-14), chapter 3 (22 January 2014)
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| Discussion in Council | Early 2014
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Not cleared; opt-in decision recommended for a debate on the floor of the House (decision reported 22 January 2014); further information requested
(b) Not cleared
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Background
3.1 The proposed Directive seeks to establish rules
that aim to ensure that any persons suspected or accused of a
crime, whose liberty is being deprived at the early stage of proceedings
(including those subject to a European Arrest Warrant (EAW)) have
access to legal aid pending any assessment and final decision
as to their eligibility for such assistance.
Previous scrutiny
3.2 When we last reported on the draft Directive,[6]
we did not think there were sufficient grounds for recommending
that the House adopt a Reasoned Opinion for non-compliance with
subsidiarity on this proposal.
3.3 The only provision of the draft Directive with
which the UK did not appear to comply was Article 5(2), which
requires that in European Arrest Warrant (EAW) proceedings legal
aid should be available for the appointment of a lawyer in the
Member State that issues the EAW to assist the lawyer in the Member
State that executes the EAW. We asked the Government to confirm
this, and to provide further details of the regulatory and financial
consequences of complying with Article 5(2).
3.4 We recommended that the Government's opt-in decision
be debated in Government time on the floor of the House, together
with two related criminal justice proposals on the presumption
of innocence and juvenile defendants.
Ministers' letters
The Minister's letter of 6 February 2014
3.5 In his letter of the above date, the Secretary
of State for Justice (Chris Grayling) confirmed that Article 5(2)
appears to be the only specific aspect of the proposal that was
"unknown" in the legal aid regime in England and Wales,
and so would require an extension of that regime to fund it. Legal
aid is available for persons subject to an EAW issued to the UK.
However, where the UK is the issuing State, legal aid is not currently
provided for a requested person to appoint a lawyer in this country
in order to assist their lawyer in the executing State.
3.6 The Minister further confirmed that there would
be changes needed to the regulations governing the operation of
the criminal legal aid scheme, for example the Criminal Legal
Aid (General) Regulations 2013, which would need to be amended
by way of the negative resolution process. Insofar as Article
5(2) would require funding for issues of non-England and Wales
law, an order may also need to be brought forward under section
32(1) of the Legal Aid, Sentencing and Punishment of Offenders
Act 2012 to make exceptions from the general prohibition on the
provision of legal aid in relation to matters of "foreign
law". This would be achieved through secondary legislation
by the negative resolution process.
3.7 That was not to say, however, that there were
no other financial implications arising from the proposal. For
example, it was not currently clear what would be the effective
"trigger point" that signalled the engagement of the
terms of the Directive, nor what was intended to be involved in
the data collection process envisaged. The Government has had
to make some assumptions in assessing the text (for example, that
the proposals in respect of provisional legal aid are intended
to be restricted to the early stages of proceedings, as set out
in paragraph 25 of the Commission's explanatory memorandum and
recital 9) and it will need to test those assumptions in any forthcoming
negotiations.
3.8 With reference to the link between this draft
Directive and the Access to Lawyer Directive,[7]
the Minister said that the Government will be considering whether
to participate in the latter Directive. Even if it did not, though,
if it opted into this draft Directive on legal aid the Government
would have to make sure that domestic law was compliant with aspects
of the Access to a Lawyer Directive. For example, Article 3(3)
of the Access to a Lawyer Directive provides that there should
be a right to meet a lawyer in private and that Member States
ensure that suspects have the right for their lawyer to be present
and participate when questioned. The provisions in England and
Wales appear to be broadly in line with that Article for those
circumstances for which national law provides. However, it will
be necessary, the Minister stated, to give careful consideration
to whether this Article would adversely impact on the current
scheme under Criminal Defense Direct which provides telephone
advice to clients detained at police stations. This scheme is
limited to low level offences such as drink driving offences,
non-imprisonable offences and breach of bail warrants. It is an
efficient and proportionate system and if it needed to be amended
to comply with these Directives or if the Directives resulted
in a decrease in the number of telephone advice cases there would
be cost and practical implications to consider.
THE MINISTER'S LETTER OF 26 FEBRUARY 2014
3.9 In a letter of the above date the Parliamentary
Under-Secretary of State for Justice (Mr Shailesh Vara) wrote
to us with the estimated costs of extending the legal aid regime
to cover the extension foreseen in Article 5(2):
"Following an examination of the available
data, we have now been able to provide an initial estimate of
potential costs related to Article 5(2) the detail of which is
set out in the Impacts Assessment checklist which I attach with
this response. In summary, the net monetised discounted cost impact
of this Article over a ten year appraisal period if opting into
the Directive, is estimated to be within the range of £1.5
million to £5 million, with a main estimate of around £2
million. This would therefore equate to an undiscounted cost of
approximately £150,000 to £500,000 with a main estimate
of around £200,000 per annum.
"In respect of the other potential financial
implications that were set out in the EM, it is not yet possible
to make an accurate assessment until we have clarity on the ambiguity
of the text in relation to the effective "trigger point"
that signals the engagement of the terms of the Directive, and
on the data collection process envisaged in the text, which we
will need to test in any forthcoming negotiations.
"There may also be upward pressures on the
legal aid budget as a result of the references in this proposal
to other rights. This could require, for example, a right to meet
a legally aided lawyer in private and to have the lawyer present
when questioned (if it reads in entirety the provisions of the
Access to a Lawyer Directive). Such a requirement could have cost
implications on the Criminal Defence Direct Scheme that provides
legal advice in certain circumstances to clients over the telephone.
These are matters on which we would need clarification during
negotiations."
Conclusion
3.10 We thank the Ministers for their letters.
We note that the extension of legal aid in Article 5(2) is, according
to the Commission's explanatory memorandum, required "in
order to ensure the effectiveness of the right to appoint a lawyer
in the issuing Member State to assist the lawyer in the executing
Member State, according to Article 10 of the [Access to a Lawyer
Directive]".[8]
Given that the UK has not opted into the Access to a Lawyer Directive,
and Article 5(2) of the proposed legal aid Directive is premised
on it, and would impose both financial and regulatory burdens,
we are of the opinion that the Government should not exercise
its right to opt into the draft legal aid Directive at this stage.
3.11 We note some hesitancy in the language of
the Minister's letter of 26 February about the Government being
able to communicate its opt-in decision to Parliament before the
opt-in debate takes place ("we will endeavour to indicate
the way the Government is minded to apply the Protocol").
Let us be clear: we expect to receive the draft motion setting
out the Government's approach to the opt-in in time to consider
it at our weekly meeting before the debate takes place.
3.12 We also look forward to the Government's
confirmation that the debate will take place over three hours,
given that opt-in decisions for three significant legislative
proposals in the criminal justice field are being considered.
3.13 In the meantime, both documents remain under
scrutiny.
6 See headnote. Back
7
2013/48/EU. Back
8
See p.7, para 33. Back
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