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The noble Lord said: My Lords, under sub-article 3(c) of Article 6 of the European Convention on Human Rights, anyone charged with a criminal offence who cannot pay for a lawyer has the right to free legal assistance
That formula could have been used negatively as well as positively; that is, anything not in the regulations would not have been regarded as being in the interests of justice. The Government, by their Amendment No. 11, have replaced these words with words that appear to be incapable of being used to restrict the definition of the interests of justice. That new wording seems to rely on a helpful suggestion made in Grand Committee by the noble and learned Lord, Lord Mayhew of Twysden.
Secondly, the Government have stated, in the recent supplement to their framework document, that the courts will have power to decide on appeal what is in the interests of justice, not merely to review that. Thirdly, the Government will make provision for exceptional cases that would not otherwise satisfy the eligibility rules. I accept that in this case the Government have moved a reasonable and acceptable distance. It is therefore my intention, having moved
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this amendment, that, after the debate, I will beg leave to withdraw Amendment No. 5, and will support the Government's Amendment No. 11. I beg to move.
Baroness Ashton of Upholland: My Lords, the noble and learned Lord, Lord Mayhew, was very helpful. Indeed, he was the only noble Lord I was going to mention by name for his contributions in Committee. I am not sure that my speaking notes now work at any level because of what the noble Lord has said, so I will just briefly explain the purpose of Amendment No. 11.
As noble Lords have said, there was concern about our proposed amendment to paragraph 5(4) of Schedule 3 to the Access to Justice Act 1999; in particular, as the noble and learned Lord, Lord Mayhew, has indicated, that the proposed wording would make it easier for the Government to restrict the circumstances in which the grant of a right of representation should be taken in the interests of justice. I tried to reassure noble Lords in Committee that it was not our intention to restrict the interests of justice test, and, in order to reinforce that commitment, and to provide further reassurance, we have tabled Amendment No. 11 to give greater clarification around that paragraph. I hope that I have succeeded, which seems to be the case, and that noble Lords will feel able to withdraw their amendments in support of Amendment No. 11.
The noble Baroness said: My Lords, as noble Lords will have noticed, as the Bill is currently drafted, the granting authority would have no option but to withdraw the right of representation where the applicant has failed to comply with regulations about the furnishing of information. The amendment I am now proposing would allow regulations to make exceptions to the provision on withdrawal.
It might assist the House if I explain why this amendment is being brought forward at this time. We recognise that, in some circumstances, information that is considered quite reasonable for the granting authority to require will not be essential in determining an applicant's financial eligibility. In these situations, it seems sensible to remove the automatic obligation
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on the granting authority to withdraw the right of representation. The obvious example might be if the applicant forgot to put their postcode on the form. However, I stress that we are not removing the power to withdraw the right to representation in those cases where it might be proper and correct to do so.
(4) Regulations may prescribe circumstances in which the grant of a right to representation shall be taken to be in the interests of justice."
On Question, amendment agreed to.
"( ) In section 25 of that Act (orders, regulations and directions), after subsection (9) there is inserted
"(9A) The first regulations under paragraph 3B of Schedule 3 shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.""
The noble Baroness said: My Lords, in moving Amendment No. 12, I shall speak also to Amendment No. 17. Those of your Lordships who were present in Committee will recall that I signalled the Government's intention to table amendments on Report to ensure compliance with the recommendation of the Select Committee on Delegated Powers and Regulatory Reform.
The two amendments concern paragraph 3B of Schedule 3 to the Access to Justice Act 1999, which refers to financial eligibility and Section 17A of that Act, regarding contribution orders. In both cases, the amendments will ensure that the first regulations under those statutory provisions will be subject to the affirmative resolution procedure. As the Government give considerable weight to the views of the Delegated Powers and Regulatory Reform Committee, I trust that your Lordships will also feel content to support the amendments. I beg to move.
The noble Lord said: My Lords, I move the amendment in the absence of my noble friend, who is unfortunately detained by his duties in court and has been unable to get here. The noble Baroness will, I am sure, be pleased to hear that it is no more than a probing amendment, which we tabled at the request of the Law Society.
We welcome in principle the reintroduction of the means test for criminal legal aid in the magistrates' courts and, in due course, in the Crown Court. As it happens, the application of the means test to the Crown Court has come more quickly than was originally anticipated and raises one or two questions that need answering. In particular, Crown Court cases are much more expensive than cases in the magistrates' courts. Even in the magistrates' courts, there are already problems with people who need representation but are unable to pay for it, even if the cost is no more than £500. That is only the average cost of a case under legal aid; it is not the maximum cost under legal aid. In any event, if an independent counsel or solicitor has to be appointed, the costs are likely to be considerably higher than they are under legal aid. So, significant amounts of money are involved. It will, of course, be much more acute in the Crown Court. I was wondering whether any research had been done into what the average cost of a privately funded Crown Court case is likely to be. That will be significant in deciding a reasonable level for the means test.
If the means test is set too high, there will, as the noble Baroness has pointed out, be a corresponding increase in the number of unrepresented defendants who have the right to cross-examine their victims in court. That has been a cause of considerable stress to witnesses in the past, and it is not something that we wish to see increased. What information do the Government have on what they anticipate the average cost of privately funded defences in the Crown Court to be? If they do not know, they certainly should know before they get around to fixing the level at which the means test is to be applied. Can the Government confirm what their plans are for ensuring that we do not end up with a significant number of unrepresented defendants being allowed to cross-examine victims in person. I beg to move.
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