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The noble Lord, Lord Kingsland, talked about the fact that there was no appeal. However, we introduced, as a Liberal Democrat amendment in another place, the ability of the LSC to refer questions to the High Court. We have also made sure there is an administrative review, because we want people who feel they have been incorrectly assessed to be able to go back to the LSC and say, “I want this looked at again”. That is very important. There is also the ability to go back and talk about particular concerns about hardship. We think we have the elements there. I know this is not as far as noble Lords originally wanted us to go, but we believe we have created a system—which we will keep under review—that will enable us to ensure that we assess people properly.

I accept too that in the foothills of Carter, as the noble Lord, Lord Kingsland, described it, we need to ensure that this all fits together. We see what the noble Lord, Lord Carter, has said, in his comprehensive consideration of the legal system, as part and parcel of a number of changes we are seeking to make. As noble Lords will know, the consultation takes place over the next three months. The noble Lord’s proposals are one part of our consideration of the criminal justice system and the reform programme, and these regulations

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represent another part of that. We do not see them in contradiction with each other, however, but as complementary. The noble Lord was fully aware of that situation when carrying out his review.

I take the point of the noble Lord, Lord Kingsland, about keeping the figures under review as we implement the Carter proposals, however the consultation turns out. I accept that we should do that, and commit that we will, to ensure that the eligibility criteria are assessed from time to time to make sure we have got them about right.

As for concern about the coverage of legal aid practitioners, noble Lords will know that the LSC has been piloting the telephone helpline, CDS Direct. I take the point about the citizens advice bureaux being an important partner, but also recognise that it does a huge amount of work, for which I pay tribute to it.

As we have said, the court duty solicitor will remain. In his report, the noble Lord, Lord Carter, acknowledges, with regard to geographical distribution, that one size does not fit all. There will be regional consultation from the Legal Services Commission to ensure that we have coverage in each locality as appropriate. I agree with noble Lords that that is an important part of what we need to do.

Then, as the noble Lord, Lord Kingsland, said, there is the business viability of solicitors. The noble Lord, Lord Thomas of Gresford, described his own experiences in that regard. We must ensure that we have thriving businesses for solicitors who are able to do this work. There is no desire on our part to do anything other than ensure that, but we need to do so in a way that addresses our concerns about legal aid spending. As I indicated in these regulations, one of the issues is the rebalancing of legal aid in the context of the civil and family courts.

The noble Lord also asked me about unrepresented defendants. We have figures for the 12 months to December 2003. I do not have more recent figures with me, but if we have any I will let noble Lords have them. The number of defendants in magistrates’ courts was over 1.8 million, but only 630,000 representation orders were granted for the same period; so about two-thirds were represented by the court duty solicitor, paid privately or were unrepresented. I do not have a breakdown of those figures, but the numbers are significant. I accept that there are issues about those who are unrepresented perhaps taking more time within the court system, and that there are consequences of that in terms of cost. However, things are running pretty smoothly in most magistrates’ courts, and we will monitor the situation to ensure that remains the case.

The noble Lord, Lord Thomas of Gresford, was concerned about real incomes, costs and regional differences, particularly in south-east London. The means assessment provides for housing costs to be taken into consideration. The noble Lord knows well that housing costs are one of the main considerations and drivers behind regional differences in income, so we should be able to militate against unfairness. But if regional factors prove to be decisive, we will look more closely at them—we are alive to regional issues. We think that we have covered them and we are alive to the fact that housing is an important issue.

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We have debated the £20,740 threshold. Of course, that is adjusted to reflect family circumstances. Defendants may earn in excess of that but, if they have children, they may qualify. That is the threshold where we introduce issues such as family needs and so on, so there is not necessarily a cut-off at £20,740.

We have not set up a new national agency. In fact, the Courts Service will carry out the means test on behalf of the Legal Services Commission under a contract between them. In part, that reflects our desire to ensure that we have consistency across the country, but we will also have within the Legal Services Commission dedicated staff to tackle complex and high-risk cases, as well as those who will look at hardship. We have deliberately not gone down the route of setting up a new national agency for the reasons that the noble Lord gave.

The noble Lord, Lord Kingsland, asked me to say what the Crown Court scheme might look like. Your Lordships will be kept in touch regarding the development of the scheme. At the moment, the proposed features are that financial eligibility will be subject to the same test that is adopted in the magistrates’ court but, where a defendant is financially ineligible, he will be asked to make an income-based contribution to the costs of the case. Frankly, few defendants will be able to afford to pay the entire costs of a Crown Court defence. The scheme might include a capital contribution based on liquid capital assets held in banks and building societies. As noble Lords know, we will be looking potentially to pilot any such scheme in a prescribed area, as provided for in Section 3(3) of the Criminal Defence Service Act 2006, for a specified period not exceeding 12 months. That may enable us to look at the matter in more detail.

Those are the elements of the scheme thus far and, as I have indicated, I will make sure that we keep noble Lords in touch with any other issues that arise. I think that I have answered most, if not all, of the questions raised, except for one, which the noble Lord, Lord Thomas, asked concerning adequate remuneration for solicitors.

I remind noble Lords that the noble Lord, Lord Carter of Coles, is talking about a new procurement and payment scheme for legal aid. The Legal Services Commission proposes to move to fixed and graduated fees from April 2007 for a wide variety of civil and family work and for most immigration work. That will enable us to promote and reward effective working by suppliers and will restructure funding in family disputes more towards early and amicable resolution wherever possible and away from contested court litigation. That will enable us to promote efficiency, to which the noble Lord referred, and we hope that that will contribute towards ensuring that the costs are used to the best effect. I hope that I have answered all the questions that noble Lords have asked.

On Question, Motion agreed to.

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Criminal Defence Service (Financial Eligibility) Regulations 2006

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I have already spoken to these regulations and beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Criminal Defence Service (Financial Eligibility) Regulations 2006.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

Criminal Defence Service (Representation Orders: Appeals etc.) Regulations 2006

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I have already spoken to these regulations also, and I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Criminal Defence Service (Representation Orders: Appeals etc.) Regulations 2006.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

Data Protection (Processing of Sensitive Personal Data) Order 2006

4.10 pm

Baroness Ashton of Upholland rose to move, That the Grand Committee do report to the House that it has considered the Data Protection (Processing of Sensitive Personal Data) Order 2006.

The noble Baroness said: The order facilitates payment card issuers—that is, banks and building societies—in processing sensitive personal data, provided by law enforcement agencies, on customers who have received convictions or cautions for crimes in relation to child abuse images where their payment card was used to commit the offence.

Card issuers’ contracts usually allow removal of a payment card or the closure of an account when it has been used to make an illegal purchase. However, card issuers need access to accurate information on illegal purchases and on whether their customers have been cautioned or convicted of an offence. Without that information, it is difficult for the card issuers to exercise their contractual rights and to remove the cards or close the accounts if they wish to do so. While some card issuers can already process these data based on the explicit consent of customers, others do not have adequate terms and conditions in their contracts. The order provides the necessary safeguards to permit the processing of data passed by law enforcement authorities to card issuers. The data on the offender will go directly to the card issuer who may, if they wish, act on the information. The processing of the data will be supported by a memorandum of understanding.

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The background legislation is set out in the Data Protection Act 1998. As noble Lords will know better than I do, the Act sets out how organisations use the personal information they hold on individuals. The data include how they acquire, store, process, share or dispose of information. Specific measures within the Act ensure that individuals’ sensitive personal data are processed in a manner that provides them with an appropriate level of protection. Under the power in Schedule 3(10), the Secretary of State may make an order setting out further circumstances where processing of sensitive personal data can take place.

The order marks the completion of collaboration between my department, the Association for Payment Clearing Services, known as APACS, the UK trade association for payments and institutions that delivers payment services to customers and represents large numbers of card issuers, along with the Child Exploitation and Online Protection Centre—known as CEOP, a national resource that brings together law enforcement officers, specialist children’s charities and industry, all seeking to tackle the growing problem of child abuse. We are also, of course, working closely with our colleagues in the Home Office.

APACS and the Child Exploitation and Online Protection Centre approached my department seeking a way forward to ensure that the necessary safeguards are in place to facilitate the appropriate processing by card issuers of convictions and cautions data from law enforcement authorities. Both organisations were very keen to act, and my department and the Home Office are very keen to support them.

When making such an order, my department is required to consult the Information Commissioner’s Office, whose role, as noble Lords will know, is to ensure that personal information is properly protected and to prosecute those who commit offences under the Data Protection Act. The Information Commissioner’s Office was broadly content with the order but had some reservations regarding closure of accounts. We do not agree with the reservations. If the order did not allow for the closure of accounts and the debit card was used, the card issuer could cancel the card but would then have to keep open the account of an individual whom they knew had broken the terms and conditions of the card and the account.

We feel that it is appropriate to allow card issuers, if they see fit, to process data on the closing of accounts based on a breach of terms and conditions—in other words, the contract between the customer and the supplier of the card. We do not wish to permit them to process this information for one purpose and then to turn a blind eye to conviction for other purposes.

The order does not set up a list of those who have had their cards removed on this basis. The information on convictions and cautions, if passed to the card issuers, is purely to allow them to decide whether the card in commission has been used for an offence that constitutes a breach of contract. While processing the data, card issuers must comply with the principles of the Data Protection Act; they must not keep the data longer than necessary. The details of the offences will not be passed to credit reference agencies or to other card issuers unconnected with that particular card.

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The removal of the card or the closure of the account does not equal a further or second punishment. These are not criminal sanctions.

The processing of the data allows the card issuers to exercise their contractual rights. When individuals use the card for illegal purposes, they contravene their contractual agreement with the card issuer and, as a result, their contract may be terminated.

When the card involved belongs to joint accounts, the innocent party will be told that the card has been removed or the account closed due to a breach of terms and conditions. They will not be given any further details. Any outstanding monies will be returned to the parties as appropriate and the innocent person in this context will not suffer any detriment.

Noble Lords will be as aware, as I am, that the viewing of child abuse images is not a victimless crime. For every image online, a child in the real world has been abused. We hope that this order will assist in the disruption of paedophilic activity and have an impact on reoffending. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Data Protection (Processing of Sensitive Personal Data) Order 2006—(Baroness Ashton of Upholland.)

Lord Kingsland: I am most grateful to the noble Baroness for her clear exposition of the order. It seems to me that there are three issues arising from its contents. First, would the innocent joint cardholder be told why the card was withdrawn? The noble Baroness effectively covered that point in her opening remarks, and the answer is, satisfactorily, no. Plainly, the innocent party would be told that his or her partner had breached the terms and conditions of the contract; but there would be no obligation to go any further than that—indeed, it is prohibited to go any further than that. That is an entirely satisfactory response from the Government.

Secondly, does the order guarantee that there would be no prejudice to the innocent partner taking out a new account on his or her behalf? It seems to me that, once again, the noble Baroness has answered that question satisfactorily. If there was any doubt that the innocent party would be prejudiced, I am in no doubt whatever that the Government would take steps to ensure that that could not happen.

The final issue relates to the criminal data that form the basis of the knowledge for the bank or financial institution to remove the card. Once the contract had been cancelled and the card removed, would that criminal documentation remain on the files of the bank or the finance firm? Once again, I understand that the answer to that question is no; that would serve no useful function and it would, in my view, be inappropriate for a number of reasons for it to remain.

Those three questions having been answered satisfactorily by the noble Baroness, I am perfectly content with the contents of the order.

Lord Goodhart: It is important to take very seriously retaining the privacy of sensitive personal data, particularly given that the proposal is to grant commercial organisations access to that data. There has to be a

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very strong case for an order of this kind to be made. I accept that in this case a very strong case has been made; I note in particular that the Select Committee on the Merits of Statutory Instruments has described the order as,

I have just one reservation in connection with the extending of access to the data to cases where there have been cautions and not only to cases where there have been convictions. We know that cautions are given only in first offence cases and where a case is so minor that it does not justify the imposition of a sentence by the court. Given that the loss of the card and the possible closing of the account may cause considerable practical difficulties, both immediately and in the future, to any person to whom it happens, is the noble Baroness satisfied that this is necessarily wholly proportionate? I assume that if this information is provided there will be no opportunity to look at the merits of any individual case in order to decide whether or not withdrawal is appropriate.

I recognise, of course, that what is happening here is, in a sense, merely the giving of information of a breach of contract, but I do not think that that in itself is sufficient to justify it. This contains very much a protection-of-the-children element and I would be interested to hear why the noble Baroness feels it is necessary to extend this to cases of cautions and not merely to convictions.

Baroness Ashton of Upholland: I am grateful for the comments of both noble Lords. I am delighted that I had answered the three questions of the noble Lord, Lord Kingsland. Indeed, everything that the noble Lord said about the answers to the questions was absolutely correct. I am grateful to him for his support and for recognising that the order is justified.

The current position is that the police send information to the credit card companies when someone is cautioned, convicted or reprimanded. The issue has been that under the Data Protection Act they could not use that information without the permission of the individual. We have simply removed that prohibition for this very particular set of circumstances. This is about the prevention of re-offending. I hope that if we and the credit card companies publicise this measure it may act as a deterrent, which would be a good thing.

When someone is cautioned, it is an acceptance of guilt. It will be up to the credit card companies if they wish to differentiate. The question for them will be whether they consider that the breach of contract which has taken place is sufficient for them to close the account and/or to remove the card. Whether or not they choose to do so is entirely a matter for them; it is not for us to say. It is for them to weigh up the situation, and we do not wish to be involved in the relationship between them and their customers and how they choose to act.

It states on my note that we consider these to be serious crimes. I cannot put it any better. We need to do everything we can to disrupt and curtail the activities of those involved in downloading abusive images of children. As I have already indicated, these are children

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who have been abused in order for the image to exist at all. It is not disproportionate to say that in these particular circumstances, where the credit card companies have said that they would prefer to be able to consider whether someone should hold a credit card if it has been used for that purpose, we should give them access to the information. While I understand that the noble Lord may feel that there are varying degrees of offence, if someone is cautioned there is no question that they have committed the offence. It is then for the credit card companies to determine what action they wish to take.

We think that this is a very small but important step. The industry came to us to discuss the matter and we have been pleased to respond. We are working closely with the industry and, where we can act, we should act. In this case, we think we should. I commend the order to the Committee.

On Question, Motion agreed to.

Regulatory Reform (Registered Designs) Order 2006

4.25 pm

The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): rose to move, That the Grand Committee do report to the House that it has considered the Regulatory Reform (Registered Designs) Order 2006.

The noble Lord said: This order is all about providing the public with a designs registration system that is as quick, accessible and easy to use as possible. It will make it possible to administer the Registered Designs Act 1949 far more in tune with modern trading conditions and also in a manner consistent with the registered Community design system offered by the Community trade marks and designs office in Alicante, which grants a single unitary right across all 25 member states.

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