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Lord Ackner: My Lords, it is a great privilege to belong, pro hac vice, to this happy band of brothers. I
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hope that the noble Baroness will not be offended at my including her, but it would be an unhappy band without her.
I should like to make one essential submission, which is the reason for my intervention: the provisions of the Bill in regard to the granting of legal aid are a constitutional aberration. They are a constitutional aberration for the simple reason that it is common ground, and on the government view, that a wholly judicial decision on a grant or refusal is to be replaced by an administrative function carried out by court staff, not with a right to appeal—that is a misnomer—but with a right to go for judicial review in the exercise of the court's supervisory jurisdiction. If the court says that the decision is beyond the powers of the commission, that does not in itself in any way cancel the decision; it merely sends it back to the commission.
However, we are here dealing with criminal offences in which the state is bringing proceedings to cause the accused to be punished appropriately for having committed a criminal offence. Obviously, the state has an interest in succeeding in its prosecutions. I should have thought that it was quite wrong, constitutionally, for the state in those circumstances to be in charge of the representation of the accused person. That, being a judicial function, should remain with the judges to decide and should not be handed over to court staff, who will no doubt be directed regarding in what type of case to allow representation and in what not to.
The court is seized of the facts of every case and has the benefit of submissions by lawyers. It must be better placed to decide what is or is not, to cite the words of the Act,
in any particular case. In particular, it is aware of the level of representation of the Crown and the significance of the case both to the public and the defendant.
By way of contrast, the commission, an executive agency, has a direct financial interest in the number of grants. It has a budget and a financial target that must be achieved. Inevitably, there is a temptation to use the "interests of justice" test as a mechanism for financial control. There is a distinction under Article 6 of the European Convention on Human Rights between criminal and civil cases, which is at present a proper reflection of the court's control of the grant of representation in criminal matters.
It is common ground and it has been so stated in the framework document that the right of refusal of legal aid is a judicial function and that, in future, it will be an administrative function. The justification for that is to save money, but that does not in any way explain what the courts are currently doing wrong and in what respect they are exceeding a proper approach to what is
Until that is established, I respectfully submit that the Government are committing a constitutional aberration and I invite them to think again.
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3.38 p.m.
Lord Goodhart: My Lords, in view of the lengthy number of speakers in this debate I intend to make my remarks quite briefly. In any event, my noble friend Lord Thomas of Gresford has put the case quite fully. However, I have a number of questions to ask and a number of comments to make on the Bill.
I accept, as does my noble friend, that there is a serious problem with the expenses of criminal legal aid. However, I have very serious doubts about whether this Bill will achieve any significant reduction. I therefore begin by asking why is it that the Government believe that the Bill will save money, and how much money do they expect it to save? The present regime for granting legal aid in criminal cases was introduced to speed up the proceedings and reduce costs by avoiding the need to apply for legal aid in advance of trials. Do the Government think that we will not, as a result of the Bill, go back to the old system and the problem with delays? If not, why not?
The Constitutional Affairs Select Committee in the other place recommended that Parliament should be able to see the draft secondary legislation to be introduced under the Bill before it goes through Parliament. So far, that has not happened. It is very important that both Houses should have the opportunity to see what is proposed by the Government in draft secondary legislation before the Bill is enacted, but so far we have seen nothing. Do the Government intend to produce any draft secondary legislation, and, if so, at what stage?
Continuing on the subject of secondary legislation, the Select Committee on Delegated Powers and Regulatory Reform of your Lordships' House will have to consider carefully some serious issues: whether this is simply a skeleton Bill to a degree that makes it unacceptable, and whether more regulations in any event should need the affirmative resolution procedure. As I read the Bill, the only regulations that will require the affirmative procedure are those made under new paragraph 2A of Schedule 3 to the Access to Justice Act 1999, which are to be made under Section 1(6). But there are others that are equally important; for example, the regulations to be made under new Section 17A of the Access to Justice Act, which provide the prescribed circumstances in which contribution orders can be made.
The Constitutional Affairs Select Committee also said that a proper appeal mechanism was of the highest importance. But the Bill restricts the existing rights of appeal significantly. Under the new regime, in cases of appeals on the merits, the right of appeal and any right of involvement of the court is reduced to an appeal that must merely satisfy the judicial review standards and does not give the court the opportunity of substituting its own decision for that of the Legal Services Commission. In the case of appeals on eligibility, the law is changed by eliminating appeals altogether and replacing them by an administrative review within the Legal Services Commission. Those seem wholly wrong in principle. A proper appeal to the court is essential. It is also wrong as a matter of practice because it may lead to higher costs and delays as more applications
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will be made for judicial review in the High Court on account of the impossibility of getting a proper review of those decisions at an earlier stage.
The introduction of the new regime in the magistrates' court but not simultaneously in the Crown Court may lead to significant numbers of defendants in "either way" cases opting for a Crown Court trial instead of one in the magistrates' court because of their more favourable position as regards legal aid. That will plainly increase the cost. Do the Government recognise and acknowledge that problem?
It is of great importance that there should be an overriding "interests of justice" test on both merits and eligibility or the Bill will not satisfy Article 6 of the European Convention on Human Rights. That test should be left to the courts and "the interests of justice" should not be defined in regulations as is the obvious intention of the Bill.
The substantial increase in criminal costs, which we all acknowledge, is partly due to an increase in prosecutions and also an increase in the number of offences created by law. When will the Government accept the need for ring-fencing between criminal and civil legal aid so that increases caused by the Government's own legislation do not lead to the cutback of civil legal aid?
I believe, frankly, that the Bill will do little, if any, good in reducing the costs of criminal defence. We need to look at other ways of reducing the expense of very high cost cases, which take up such an astonishingly high proportion of the total criminal legal aid budget. I strongly recommend that the Government look at the problems mentioned by my noble friend Lord Thomas of Gresford, and at cutting the costs of very high cost cases by better case management.
3.46 pm
Lord Kingsland: My Lords, I have barely had time to wipe away the tears shed on hearing the submissions made on behalf of the Criminal Bar by the noble Lord, Lord Thomas of Gresford.
I wish to put a number of questions to the noble Baroness. First of all, I should like to make one or two constitutional observations. Why does the Bill refer to the Secretary of State for Constitutional Affairs and not the Lord Chancellor? Schedule 3 to the Access to Justice Act 1999, like the rest of the Act, is cast in terms of responsibilities and powers exercised by the Lord Chancellor. Why do we suddenly see, in a Bill that seeks to substitute a new regime for Schedule 3, this figure of the Secretary of State for Constitutional Affairs loom into view? The noble and learned Lord the Lord Chancellor spent much of the previous Session prevaricating about whether he should preserve his own office. In the end, the noble and learned Lord decided to do so. Why, immediately after that decision, do we find in legislation a reversion to the Secretary of State?
I endorse everything that the noble Lords, Lord Thomas of Gresford and Lord Goodhart, said about the importance of seeing the regulations in draft form. The Bill has been in preparation for some time, and the Government must have done serious, indeed
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comprehensive, thinking about what the regulations should contain. It is highly desirable, therefore, that in Committee, in two weeks' time, we have a clear idea of the main thrust of the regulations, if not a detailed draft with every "i" dotted and "t" crossed.
I also support what the noble Lord, Lord Thomas of Gresford, said about the Crown Court. I look with great wariness on that aspect of the Bill which seeks to translate the magistrates' court regime in some modified form to the Crown Court simply by way of delegated legislation. As the noble Lord rightly observed, your Lordships' House will not have the opportunity to amend such an item of delegated legislation. The noble Lord explained most cogently why the considerations in the Crown Court are different from those in the magistrates' court. I hope that the Government will think very carefully before insisting on that aspect of the Bill.
On the substance of the Bill, in principle, we, the Opposition, support the idea that some contribution should be made, by those capable of making it, to costs in the magistrates' court. That was the situation before the Access to Justice Act. It was changed, from 2001. And now, after four years' experience, the Government wish to change back again. The temptation is too great not to use the well-known military expression, "order, counter-order, disorder", because that is what it looks to those of us who sit on the other side of the House.
The system was changed because the Government thought that the combination of cost and bureaucracy and delay was such that the cost savings at the magistrates' court level was very marginal. That was a perfectly understandable conclusion to reach. Clearly something has happened in the last four years to make the Government change their mind.
Can the Government assure us that the savings that will be made will be real? Have they done a savings estimate? If they have, can they let us know what they think, generally speaking, will be the amount of money that will be saved by these measures? As the noble and learned Lord, Lord Ackner, said, we are facing a completely changed regime; but irrespective of the merits of the new regime, judicially, and in the context of Article 6 of the European Convention, is it actually going to save money?
I hazard that however much money it will save, it will save nothing like the amount of money that high cost cases cost the criminal legal aid system. The figures are quite well known but it is well worth reminding your Lordships what they are. The half dozen most expensive criminal legal aid cases in 2003 amounted to no less than 25 per cent of the total criminal legal aid budget. One per cent of the highest cost cases amount to 40 per cent of the total criminal legal aid budget. Whatever savings are made by these changes in the magistrates' court, they will be dwarfed by these figures.
Why are the Government not coming to your Lordships' House with proposals to deal with high cost criminal cases? This is the kernel of the real problem of criminal aid; the problem that is having
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serious implications for the amount of money available for civil legal aid. What proposals do the Government have? Will they come at an early stage to your Lordships with real proposals that will bite, to reduce these high cost cases? As the noble Lord, Lord Thomas of Gresford, said, it is not simply a matter of trimming defence costs. Much of the problem lies with the way the Crown Prosecution Service deals with these cases. Any proposals that the Government will make will require a very serious look at the whole way in which the Crown Prosecution Service approaches prosecution.
I turn to one or two points of detail. The noble and learned Lord, Lord Ackner, has in my respectful submission made some very important criticisms of the new system. The noble and learned Lord rightly says that what will happen under the Bill is a shift from a judicial decision, assessing what is or is not in the interests of justice in relation to representation, to an administrative decision. The administrative decision is rather complicated, because although, in principle, it devolves upon the Legal Services Commission, there is a service level agreement which delegates that decision back to the court administrative staff.
There is an appeal system but to describe it as such is a misnomer. It is a review system, not an appeal system. The court may review a decision by the Legal Services Commission; but the consequence of that is that the court itself does not make a new decision. It simply refers the faulty decision back to the Legal Services Commission to make a new decision. I wonder whether that is consistent with the Article 6 interest(s) of justice test. I hope that the noble Baroness, Lady Ashton of Upholland, will address that point head on when she replies; or if she feels unable to do so today, then at a later stage in Committee.
This move is particularly surprising because last year—or was it the year before—when we dealt with the Government's latest asylum legislation of reducing the two-tier tribunal system to one tier, the Government moved, in the interests of saving money, in the opposite direction. They decided to remove the responsibility for rewarding legal aid from the Legal Services Commission and give it to the court. Perhaps the noble Baroness would be good enough to explain why the interests of saving money were best served by giving the court responsibility in the asylum system; but appear to be best served by giving the Legal Services Commission responsibility when it comes to magistrates' courts. I must confess to feeling somewhat bewildered.
Although this matter has not been addressed by any earlier speakers, I wonder if the noble Baroness could also tell us something about the proposals for price competition and tendering, which I understand is to be an ingredient of this new system. I know that the Society of Asian Lawyers has expressed some concern about their discriminatory impact and, indeed, possible conflict with Article 6 of the European Convention on Human Rights.
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The noble Baroness has no doubt talked to the Society and has reached a conclusive view on this matter and I would be most grateful if she could let us know what the Government's reaction is.
In conclusion I say again, so that there should be no doubt, in principle the Opposition support the idea of contributions but there is much in the detail of this Bill which gives us cause for concern.
3.58 pm
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