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Lord Kingsland: My Lords, I understand the concerns expressed by the noble Lord, Lord Goodhart. In an ideal world, it is always desirable to put the horse before the cart. If one had a thorough knowledge of the costs of Crown Court proceedings at one's fingertips with regard to the various sorts of prosecution that arise in those courts, accurate assessments of cost contributions would be easier to make. Nevertheless, I applaud the speed with which the Government have reacted to concerns expressed by
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Members of your Lordships' House in Committee last July and brought forward what I consider, in the circumstances, to be a well thought-out approach to the problem of Crown Court costs relating both to income and capital contributions.
There is much more work to be done, and I know that the Government freely acknowledge that. Nevertheless, the Government are moving in the right direction in an area that inevitably, as the noble Lord, Lord Goodhart, said, raises greater complications than cases in magistrates' courts.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for explaining what lies behind the amendment. In the Crown Court scheme that we propose, we are not barring legal aid because of means; instead, we are looking for contributions. So, there are fundamental differences in the way in which we approach the matter. My understanding is that there are so few cases of the type that the noble Lord described that is quite difficult to do research. However, we have already indicated in a supplementary document that, in any event, before we move forward on particular schemes, we will consult widely. Hence, our request for your Lordships to agree the principles behind what we are doing and to recognise that, when we introduce regulations, as we will for the magistrates' courts, they will reflect that consultation.
Having checked this with our legal advisers, I must say that what the noble Lord seeks to achieve with the amendment is already covered in the Bill. The phrase "in prescribed circumstances" gives the discretion that the noble Lord seeks with the amendment. We do not impose any duty to make regulations stating when a contribution shall be made; we merely grant a power to do so. We have already indicated that the first set of regulations will be subject to affirmative resolution in Amendment No. 17. As I have said, there are no plans to make contribution orders in a magistrates' court. Having the phrase "in prescribed circumstances" allows us to introduce the de minimis rule.
We have a scheme that would enable contributions rather than obliging people to pass a means test in the Crown Court. With regard to the means test in the magistrates' court, there is the flexibility to make sure that we consult widely. In the course of doing so, we will take on board what the noble Lord, Lord Kingsland, said about the variety of cases. Specifically, because it is dealt with in regulations, we have the opportunity, as I said at Second Reading, to correct any concerns raised in the course of the operation of the scheme. Debate on later amendments will enable us to think through how we put it into operation.
"( ) Regulations under subsection (1) shall provide that an order made under the regulations may not order the payment of costs to the extent that they are already the subject of an order under section 17(2)."
The noble Baroness said: My Lords, this amendment mirrors an earlier amendment to Section 17 of the Access to Justice Act. Briefly, I shall explain to your Lordships' House why the amendment is necessary. Section 17 of the Access to Justice Act allows for recovery of defence costs orders to be made against defendants. The assumption is that they will be made at the end of the case. However, the Bill introduces a new Section 17A, which enables the granting authority to require legally-aided defendants to make contributions towards their legal costs. We would ordinarily expect contribution orders to be made at the start of the case. In addition, the Bill also amends Section 17, so that a defendant does not have to pay twice where a contribution order has been made at the outset and a recovery of defence costs order at the end.
That said, it is also possible, for example, that a contribution may fall due after a recovery of defence costs order has been made. We need to avoid double recovery in those circumstances, and this amendment provides accordingly. I should stress that those arrangements do not mean that a defendant could not be made subject to both orders in order to recover defence costs incurred by the individual. However, it would be unconscionable for both a contribution order and an RDCO to bite if their combined effect means that the defendant has to pay more than the total costs of his defence. I hope that in light of that explanation noble Lords will be able to support this Government amendment. I beg to move.
"( ) Regulations under subsection (1) may
(a) be made so as to have effect only for a specified period not exceeding 12 months;
(b) provide that their provisions are to apply only in relation to one or more prescribed areas."
The noble Baroness said: My Lords, as noble Lords will recall, in Committee, I undertook to provide the House with details of the means testing model being developed for the Crown Court. The scheme is laid out in the supplement to the framework document, which I think noble Lords have received with pleasure. As we make clear, it will require the defendant to make an
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income-based contribution to his defence costs. It is our intention to consult fully on the precise method through which this contribution should be collected; either as a single up-front payment or as a regular contribution through the life of the case.
I am sure that your Lordships would also agree that there are clear benefits to be obtained from thoroughly testing the scheme on the ground. It is for this reason that the Government wish to take the power to pilot before any wider national rollout. I hope that I can rely on your Lordships' support for this amendment. I beg to move.
"OFFENCE WHERE REGULATIONS ARE CONTRAVENED, ETC.
In section 42 of the Road Traffic Act 1988 (c. 52) (offence where regulations are contravened, etc.)
(a) for subsection (1) substitute
"(1) Subject to subsections (2) and (3) below and sections 43 and 44 of this Act, a person who
(a) contravenes or fails to comply with any regulations under section 41 of this Act, or
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(b) uses on a road a motor vehicle or trailer which does not comply with any such regulations or causes or permits a vehicle to be so used,
is guilty of an offence.";
(b) after subsection (2) insert
"(3) This section shall not apply to the Secretary of State or an employee of the Secretary of State or his agent, provided that
(a) the vehicle is being used solely for or in connection with measuring or auditing the ability and willingness of a vehicle testing station approved under section 45 or 49 of this Act to detect vehicle faults and refuse test certificates where appropriate,
(b) a risk assessment has been carried out and a copy of the risk assessment is carried on the vehicle, and
(c) no significant risk to other road users can be foreseen from using the vehicle for the purpose mentioned in paragraph (a) above.""
The noble Earl said: The Vehicle and Operator Services AgencyVOSAis responsible, among other things, for ensuring that the network of MoT testing stations operates to an appropriate and a high standard. It uses incognito vehicles to check the operation of testing stations. There is no problem with ensuring that an MoT station is not failing vehicles unnecessarily due to ignorance, excessive zeal or something more sinister. VOSA just uses what it believes to be a perfectly serviceable vehicle. However, it is unable to use a vehicle which should fail because it is unroadworthy, since it would be an offence to use such a vehicle on the road. It would be wincingly obvious if it turned up at the testing station with a car on a transporter and unloaded the vehicle on the garage forecourt. It would hardly be incognito.
My amendment would remove that difficulty by allowing VOSA officials to use a defective vehicle on the road for that purpose. Of course, I have put in place a number of safeguards. I accept that my amendment will not be perfectly drafted, but I would be interested to hear the Minister's response. I beg to move.
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