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On behalf of the whole House I express our gratitude to the noble Baroness for introducing this report from the Royal Society. The debate has been timely and reflective of the great value we attach to this institution which has directed itself to the great challenges facing agriculture, an industry for which my department is responsible. The challenges are enormous. We will not agree all along the line about the strategies to pursue, but I hope that there is sufficient consensus for us to make progress together. I have derived from this debate at least a common analysis of the problems, and that is a step along the journey.

Baroness Byford: My Lords, I am very grateful to the Minister for his response. He is right that we have had much convergence of thought around the Chamber this afternoon. We are all aware of the food security problem and the urgency that climate change adds to it.

I thank all noble Lords who took part in the debate. In particular, I thank the noble Baroness, Lady Quin. The Minister need not worry about my regard for her-in some ways it is formidable. We worked opposite each other in my early days when she was in another place, and I am grateful to her for joining us today. I am grateful to all my noble friends.

I have three things to say quickly. First, the question of skills has again been highlighted, and the Minister has just referred to it. I want to tempt him to have serious discussions with his counterpart in higher education, as something could be done about this real problem. Secondly, on behalf of the noble Lord, Lord Rees, I express his apologies for being unable to be here to take part in the debate. Noble Lords may have seen him in the Chamber for the start of the debate, but as he had to leave at 4 o'clock, he felt that he could not take part. I know that he is anxious to read the contributions that he was not able to listen to.

Finally, I add to the thanks and support that the Minister gave to the noble Lord, Lord Plumb, who has long been regarded as a leading authority and sympathetic supporter of agriculture not only in this country but in Europe and internationally. I know that his wife has just come out of hospital, and he has explained why he cannot be here. To all those who have taken part, I give my grateful thanks, and I beg leave to withdraw the Motion.

Motion withdrawn.

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Child Poverty Bill

First Reading

4.28 pm

The Bill was read a first time and ordered to be printed.

Criminal Defence Service (Contribution Orders) Regulations 2009

Copy of the Order
24th Report from JCSI

Motion to Approve

4.29 pm

Moved By Lord Bach

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): In moving the regulations, with the leave of the House, I shall also speak to the draft Criminal Defence Service (Representation Orders) (Amendment) Regulations 2009 and the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2009.

These three sets of regulations are laid by the Lord Chancellor under provisions of the Access to Justice Act 1999 and are subject to the affirmative resolution procedure. The instruments are being laid to extend means-testing for legal aid to the Crown Court. There are four other sets of regulations, all subject to the negative resolution procedure, relating to financial eligibility; interests of justice provisions; amendments that provide for the right of the Legal Services Commission to grant representation in Crown Court proceedings; and, lastly, those that limit the power of the court to grant representation.

The draft contribution orders regulations are the main instrument. They provide the framework within which the new scheme will operate. The draft representation orders amendment regulations provide that, in almost all cases, responsibility for granting representation orders in criminal proceedings in the Crown Court will move from the court to the Legal Services Commission. The draft representation orders appeals etc. regulations provide for consequential amendments to the process for appealing against refusals to grant a representation order.

The regulations underpin the new scheme that will be introduced in January 2010 at five early-adopter courts. The courts involved are Bradford, Norwich, Preston, Blackfriars and Swansea Crown Courts. The scheme applies to trials, committals for sentence and appeals to the Crown Court. It will then be extended to the rest of England and Wales between April and June 2010. The purpose of the early-adopter phase will be to test the processes that have been developed before national rollout occurs and to make any changes necessary.

The introduction of means-testing in the Crown Court is a central part of our policy to target legal aid at those who need it most and to secure best value for money for the taxpayer. That has been a stated commitment of the Government since 2005.

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There are two major questions to pose to the House. First, why should not a convicted defendant have to pay some or all of his or her costs if he or she can afford to? The second, related, question is: why should the state pay precious legal aid funds to a convicted defendant who can afford to pay and thus deprive others who are in need of legal aid? The means-testing scheme that has been in operation in the magistrates' courts since October 2006 has, to date, delivered savings to the Legal Aid Fund of more than £80 million. Our forecast of savings in the Crown Court is more than £50 million a year by 2013-14.

The Government believe that the scheme will fairly and effectively target those convicted defendants who can afford to contribute towards part or all of their legal aid costs because of their income and/or capital asset position. Defendants who have made an income contribution towards their costs during the life of their case and are then acquitted will have their contributions returned with interest.

The proposed scheme focuses legal aid support on the majority of Crown Court defendants, who genuinely cannot afford to contribute towards their legal aid costs. We estimate that about three out of four defendants will continue to receive representation for free. Those who are under 18 and those in receipt of what are described as passporting benefits, such as income support, will be exempt from making any contribution at all. The scheme will also create a stake for those defendants who are asked to pay a fixed number of monthly contributions-assessed according to their means-in ensuring the timely progression and disposal of their case.

The income threshold in the Crown Court will be the same as that currently operating in the magistrates' court scheme. In addition, we propose a capital asset threshold of £30,000. Those convicted defendants who have not covered the costs of their cases from income contributions alone will have their capital assets assessed to determine whether they should make a further contribution. As I said, only assets, which include equity in property in excess of the £30,000 threshold, will be taken into account when determining whether a contribution from capital is required.

The contribution order regulations provide that every defendant appearing for trial or committal for sentence before the Crown Court will be granted a representation order. The Crown Court means-assessment scheme builds on that which exists in the magistrates' courts and incorporates elements of it. Where supporting evidence is required to enable a fair and proper assessment of means to take place, defendants will have up to two weeks from the submission of their application form for legal aid in which to furnish the relevant information. All defendants remanded in custody by the court will be able initially to self-certify their means by completing and signing a statement of truth.

These provisions are designed to ensure that there is the minimum of delay in a defendant obtaining representation and the minimum of delay in the representative beginning work on a defendant's case. This is particularly important in indictable-only cases, where the role of the magistrates' court is restricted to a single hearing before the case moves to the Crown Court.

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The scheme sets a generous threshold of disposable income. We are clear that defendants, and particularly their partners and dependants, should not be disadvantaged unduly by a requirement to make contributions, whether from income or capital. The threshold that we have set, and the allowances that will be made before a defendant is required to contribute, make us confident that only those genuinely able to pay will be required to do so. I reiterate that the requirement to pay will, we estimate, affect only around one in four defendants.

Concern was expressed in the recent consultation exercise on these draft regulations about aggregation of income and assets and enforcement for non-payment of a contribution order. The Government consider that the fairest way of judging whether a contribution should be payable is to aggregate income and assets at the household level. This is in line with current civil schemes and reflects the practice when other means-tested benefits are being applied for. However, aggregation will not take place where the partner has a contrary interest in the case, by being, for example, the victim or a witness for the prosecution at trial. The draft regulations deliberately do not specify what a contrary interest might be, so that such issues can be dealt with on the facts of each case. A hardship procedure will act as an additional safeguard for those who believe that they are genuinely unable to pay the contribution assessed because, for example, they have other, exceptional financial commitments.

When it comes to the collection and enforcement of a contribution order, the agency charged with maintaining the scheme will provide a supportive environment for defendants to comply. I have to say that there may have been some misunderstanding of the Government's position when it comes to enforcement. Any enforcement action will be taken against the defendant alone and not against partners or dependants. The action itself might take a variety of forms-for example, attachment of earnings orders, distress warrants, third-party debt orders pre-conviction or, post-conviction, charging orders on property and, in due course, seizure of motor vehicles.

I wish to make it abundantly clear that the option of a forced sale of a home will be an exceptional last resort and considered only where there has been a persistent and wilful refusal by a defendant to comply with the terms of a contribution order. In addition, any enforcement action will have to be the subject of an application to a judge. The Government are confident that this judicial safeguard will protect the interests of those who might be at risk from a defendant's failure to comply with an order. Any decision to take enforcement action will rest with the Legal Services Commission, after due consideration, and not with the enforcement agency undertaking the administrative elements of the scheme. The Government have decided that all enforcement options should be open to the agency to seek, because it believes that it is not right that those who have been fairly assessed as having the means to contribute towards the costs of their case should seek to evade that responsibility.

I have dwelt on some of the more important aspects of the new Crown Court contribution order regime and now turn briefly to the two other draft sets of

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regulations that require affirmative resolution. The first are the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations. As I said, these amend regulations that had provided for an appeals process where an individual had been refused a representation order on the ground that the interests of justice did not require representation.

One of the key elements of the new Crown Court scheme is that all defendants committed, sent or transferred for trial will pass the interests of justice test, as will those committed for sentence from the magistrates' court. The Government recognise that the types of case heard in the Crown Court are more serious on the whole than those heard in the magistrates' court. For this reason, we believe it only right that an automatic grant of representation should be made for defendants appearing before the Crown Court. This is provided for in the new interests of justice regulations, which are the subject of negative resolution. The draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations limit appeals against a refusal to grant a representation order to appeals to the Crown Court, which will continue to be subject to an interests of justice test.

Finally, I turn to the draft Criminal Defence Service (Representation Orders) (Amendment) Regulations. These regulations provide that the Legal Services Commission may grant the right to publicly funded representation in criminal proceedings in the Crown Court. In practice, the Legal Services Commission will delegate this function to staff in the magistrates' courts, who are by now very experienced in dealing with legal aid applications under a means-testing regime.

The introduction of a means-testing scheme in the Crown Court is designed to enable a sustainable future for the Legal Aid Fund, to ensure that those who are guilty and can afford to contribute towards the costs of their case do so and to underpin our commitment that those most in need of access to legal advice and assistance, whether in the criminal or the civil field, continue to receive it. I beg to move.

4.45 pm

Baroness Seccombe: My Lords, we have quite a lot to absorb here, but I thank the Minister for explaining what the Government are seeking to do with these rather complicated regulations. He has presented them as an efficiency measure designed to ease the strain on the legal aid budget. The Criminal Defence Service uses criminal legal aid to help people who are under investigation or facing criminal charges by ensuring that those accused of crimes have access to legal advice and representation. From my time on the bench, I am very aware that legal aid has been one of the fastest growing areas of public sector spending over the past 25 years, up from £536 million in 1982 in today's prices to around £2.1 billion today. Of that, criminal legal aid accounts for around £1.2 billion.

The Minister has argued that this rate of increase in spending is not sustainable. Therefore, in conjunction with the Legal Services Commission, the body responsible for administering legal aid, the Government are looking for savings where they can. That is understandable. No

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matter how reluctant they are to admit it, they must find "efficiencies" across every area of public spending. However, we are dealing with a very sensitive area, as people's liberty is at stake. The savings the noble Lord hopes to make must not be allowed to trump the interests of justice.

As the Minister has explained, in October 2006 a new means-testing scheme for eligibility for criminal legal aid was introduced in the magistrates' court. The orders now before your Lordships will extend the means testing already in place in the magistrates' court to the Crown Court. I cannot complain about the principle of proposing that defendants who have been convicted in the Crown Court should pay a contribution towards their legal representation if they can afford it, but I have a number of concerns with what the Government are actually doing.

We are concerned by some of the consequences of these regulations in that there will be a large impact on vulnerable defendants. We fear that if the Government push ahead with these changes we will see a large number of defendants who will just miss out on criminal legal aid in Crown Court cases. This will lead to a situation whereby criminal legal aid will be available only for the very wealthy or the very poor. The way that defendants' wealth is to be assessed makes us worry that if faced with the seizure of their assets, perhaps even their home, defendants will run the risk of forgoing representation altogether. Can the Minister inform the House whether the number of unrepresented defendants in the magistrates' court has risen since the introduction of means testing in such courts?

The Law Society has voiced its continued concerns, which I share, about the assessments of partners' incomes and capital. Unless the defendant's partner has a contrary interest in the proceedings, his or her resources are to be assessed for the purposes of paying legal aid too. However, there are doubts over whether even partners with a contrary interest are sufficiently protected by the regulations. What about a situation where a home inhabited by the defendant and partner may be entirely owned by the defendant and can therefore be included in the assessment of means? A potential effect of these regulations would be to give a defendant in a domestic violence case the power to threaten the complainant-in other words, his or her partner-with homelessness if they continue with the proceedings. Where the family home is entirely owned by the defendant, the regulations allow for the sale of the home to be forced in order to pay for the proceedings, so the victim of domestic violence could thus find themselves homeless if their partner is found guilty. These are serious concerns and I hope the Minister will address them. I cannot believe that such an outcome would be considered an appropriate application of the policy. However, I cannot see a protection against it spelt out in the regulations.

The noble Lord said that the Government have made a generous calculation of a defendant's disposable income. We are told that only in cases where the defendant's disposable income exceeds £3,398 will they be liable to pay a pre-conviction contribution from their income. Should we see a rise in the number of unrepresented defendants appearing in the Crown Court-I ask the Minister to confirm that these numbers

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will be monitored-will that income threshold be raised? I was concerned about whether someone found innocent and not guilty of an offence would have the pre-paid amount paid back, and he has assured me on that matter.

The worry we have about the Government's means-testing agenda is that it will deny access to justice for defendants and will not save a considerable amount of money. As I said earlier, the legal aid budget has swollen to £2.1 billion and the criminal legal aid budget is £1.2 billion. How much will these regulations save? The Government are trying to save money at the margins when they should be getting a grip of the high-cost cases-terrorism trials and the like-which comprise only about 1 per cent of all criminal cases but swallow nearly half-49 per cent-of the legal aid. How much does the Ministry of Justice expect to spend on these high-cost cases next year? The Government ought to be looking at legitimate ways of trimming the budget in such cases-the cost of expert witnesses, for example, and better case management. Until they are prepared to do that, we shall see more regulations like these, which may be well intended but risk harming access to justice.

Lord Thomas of Gresford: My Lords, the love fest of yesterday is, I am afraid, over. We on these Benches support the principle that convicted criminals should pay for their defence when they can. However, in the past that has turned out to be a purely theoretical principle. Attempts have been made before to introduce means-testing of the costs of defence, but they failed because the cost of administering these schemes exceeded such benefits as might accrue from recovering the money. Consequently, some years ago, it was decided that it was cheaper to give everyone legal aid rather than to go through this bureaucratic procedure. If, as Mr Vince Cable points out, bankers can avoid their 50 per cent extra tax overnight, so sophisticated criminals will be able to avoid this scheme if they have to pay. It has holes in it.

The problem is outlined in the Government's supplementary impact assessment. Page 1 of the financial profiling of Crown Court defendants sets out the difficulties:

"The Criminal Justice System does not gather any information about the financial or domestic characteristics of Crown Court defendants. The demographic information about defendants that the Criminal Justice System collects is very limited. The best information that we have about defendants is derived from CREST ... the computer system that supports the progression of cases through the Crown Court. The system records case level and defendant level information about the proceedings, but the only demographic data that CREST records about each defendant is their age, sex and post code. Other detailed financial and demographic information is not collected, creating an "information gap" ... This paper describes how Ministry of Justice Operational Researchers have attempted to fill this "information gap" by imputing a socio-economic profile of Crown Court defendants".

It then identifies the sources.

The paper was put for academic peer review. Professor Martin Chalkley of the University of Dundee, says that it is,

and that the overall methodology has been "appropriately chosen and executed", but he has significant problems with the seeking out of alternative data sources and,

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I need not explain to the Minister what bootstrapping techniques are.

His comments are followed by those of Professor Ian Walker of Lancaster University, on page 40 of the report, who points that the populations are different when you try to match income data from the family resources survey to CREST. He states that,

He goes on to describe the difficulties there and sets out a whole series of worries about the accuracy of the report.

The third academic who looked at the report, Professor Lanot of Keele University, also said that he was not convinced by the bootstrapping procedure. He gives a series of criticisms about the methodology.

Where the Government are guessing income levels of defendants and basing their policy decisions on a guess, one would think that it would have been wise to introduce the scheme gradually. However, no pilots for Crown Court means-testing have been carried out. As the Minister said, this new scheme will be rolled out in five courts in January of next year and then to the rest of the country within three months, in April to June 2010. The Government have claimed that the operation of the scheme,

They believe that they will be able to see within three months whether the means-testing is accurate, whether any further rollout is desirable or necessary and whether their guesses are right. This is a guesstimate: the impact assessment has no doubt been done as professionally as possible, but great reservations are expressed about it.

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