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David Taylor (North-West Leicestershire) (Lab/Co-op):
Having sat on the bench for a good number of years, I recognise some of the circumstances to which the hon. Gentleman refers, but can the new clause be used in cases, for example, of fraud, where the person being charged is not in the category concerned? Although prosecuting fraud can never be justified in purely financial terms, there has been at least one significant case that involved fraudulent legal aid claims by a firm of solicitors, which cost the legal aid fund £10 million. That same fund, when that firm was
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prosecuted, incurred costs of £34 million in defence costs and £10 million in administration£44 million in total. Would that be covered by the weakening that he describes in respect of new clause 1?
Mr. Burrowes: The purpose of the new clause is perhaps not so much to deal with that circumstance. No doubt any first application in relation to someone who is charged with fraud would involve filling out the financial eligibility form, which would be complicated and require the administrative route that is followed in the Bill. The point of the new clause is to deal with those exceptional circumstances that I described: primarily, those applicants who have great difficulty following through with a written application, who have come before the court without any legal representation and whose need is great. That is particularly the case with those who are vulnerable or mentally ill, where there is a great urgency to deal with the matter as quickly, as expeditiously and as fairly as possible.
David Taylor: The new clause does not make clear the circumstances in which it would not be practicable to refer the matter to the commission. Would the intention be to include that in a schedule to the Bill if the new clause were accepted?
Mr. Burrowes: A statutory framework of regulations will seek to go into detail in relation, for example, to people who originally fail the means test but who, it is recognised, suffer hardship and are unable to afford legal representation. That framework is, I understand, to be published after the Bill becomes law. It would no doubt also involve definitions in relation to practicability.
The issue is that the Bill would without exception confer all the powers upon the Legal Services Commission that at present are devolved to court staff. The new clause seeks to give flexibility in the exceptional circumstances that I described. The term "when it is not practicable" can be judged properly; it is used in other legislation. The clerk can advise the magistrates on whether that is the situation. Plainly, if it is practical for the normal route to be followedthe administrative route of devolved powers to court staffthat can be followed. No doubt the advice can be taken from the clerk. However, there are the exceptional circumstances that I have sought to outline. As is the case presently, some of those who come before the bench will need a decision to be made on the basis of an oral application. The new clause seeks to be constructive. It would give effect to what is in place now and give the option. Perhaps it will be used rarely, although I hear from local magistrates that oral applications increasingly need to be made to deal with the position of the applicant.
The need is perhaps greater now than before the Bill was mooted. Now there will be a financial requirement upon the applicant. If the client is mentally ill or mute, as one of my cases was, and comes before the court without legal representation, the magistrates will realise that there is a need for representation and to determine the
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issue of legal aid expeditiously. The applicant then needs a solicitor to go through the process of applying for legal aid.
Without the new clause, the solicitor would need to consider the general criminal contract, whether the client was defined as a patient under that contract and whether an application could be made on behalf of the client. The solicitor would also have to have sufficient knowledge of the client's financial circumstances because now there will be a requirement to complete the financial side of the application. The burden is more onerous properly to complete an application for legal aid. Without the new clause, that will happen by the administrative route of going through the process of completing a form. Indeed, if it was refused, there could be an appeal process, which could be lengthy, delay the process and not be in the interests of either justice or the applicant.
In that exceptional circumstance the new clause would allow the matter to be dealt with there and then within the court building and hearing. It would allow the application to be made to the magistrates who can plainly see that it is in the interests of justice for legal aid to be granted. They can determine also the issue of financial eligibility in court orally to allow the matter to move on expeditiously.
James Brokenshire (Hornchurch) (Con): My hon. Friend makes some interesting points based on his experience in the criminal sector. Does he agree that if there is the delay that he is talking about, in terms of properly assessing whether legal aid should be given if we follow the current procedure rather than the oral hearing procedure which he is outlining in his new clause, that could be a burden in terms of not giving proper access to justice and seeing that justice is expeditious, and could increase the potential administration and costs if there are continuing delays in ensuring that a particular case or hearing is dealt with appropriately?
Mr. Burrowes: I am grateful to my hon. Friend for that intervention. I agree that the new clause would seek to prevent the potential for increased delays and costs. The new clause seeks to meet the intentions of consultations on criminal legal aid. I seek to plug a gap which will be in the legislation without the new clause.
Why not include the new clause as part of the armoury available to deal properly and expeditiously with legal aid, and allow the justice system to move on without delay? Is the issue primarily about wanting to speed up justice and to make it fairer, or is the Government's prevailing concern to confer all powers on the Legal Services Commission, not the courts, in order to gain control over the budget; rather than the prime motivation being, as it is in the new clause, to deliver effective criminal justice?
I urge the House to support the new clause which not only plugs the gap in the one example that I have given, but also provides a safety net for the system so that we can properly achieve the goals that we all have.
Keith Vaz (Leicester, East) (Lab):
I wish to speak only briefly on the new clause. It is sad that we have lost the eloquent skills of the right hon. Member for Bromley
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and Chislehurst (Mr. Forth) who argued so strongly earlier for more time to scrutinise the legislation. As soon as the motion was passed, he disappeared from the Chamber.
I pay tribute to the hon. Member for Enfield, Southgate (Mr. Burrowes) for the way in which he moved the new clause. I have sympathy with it, but cannot support it because it does not deal with the fundamental problem of transferring the granting of legal aid from the courts to the Legal Services Commission.
The Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Lewisham, East (Bridget Prentice), is doing a splendid job at the Department. I have no problems with her being able to deal with, supervise and monitor the work of the Legal Services Commission, but she is creating a framework which will make it difficult in future for people to challenge decisions made by that commission.
I was pleased when an amendment was passed in the other place to allow for the right of appeal on such cases. It gives people who apply for legal aid the opportunity to have that decision scrutinised by a body other than the Legal Services Commission. The most worrying aspect of some steps that the Government have taken on legal services and the court system is their wish to abolish rights of appeal and place decisions with the very organisations or individuals who are commissioned to make the original decisions. That is wrong.
I thought that the new clause would give us the opportunity to restore that right of appeal, but it deals with applications in the first instance. It deals with those circumstances where for some reason an application cannot be referred to the Legal Services Commission. Therefore, it concedes the point that the first decision should be made by the Legal Services Commission. That worries me because there should be scrutiny and an opportunity for individuals to have their cases assessed by those other than the decision makers. In addition, it puts a great deal of trust and faith in the operation of the Legal Services Commission.
It is clear from all the information that I have from individuals and practitioners who have had to deal with the Legal Services Commission that they are dealing with a highly bureaucratic organisation which seems to compound the delays that already exist in our legal system. Of course in reply the Minister could announce some radical shake-up of the way in which the commission operates to satisfy me and others that her faith in the organisation is justified, but neither that nor the new clause deals with the fundamental principle that others should review the decision.
My hon. Friend the Member for North-West Leicestershire (David Taylor) made an important point. We need to know before the passage of the Bill the circumstances in which the new clause will operate. Where are those exceptions which would take us out of the procedures set down by the Government in the proposed statute and allow an oral application? The hon. Gentleman said that perhaps they could be included in draft regulations or by some other method by which Ministers can supplement legislation. That is a real problem. We need to know that information. Otherwise, people will have a choice and, given the
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choice, most would choose to make their application to the courts rather than to the Legal Services Commission.
The purpose of the Bill is not just to make the system more efficient, which hopefully it will; it is to save money because of the large increase in the legal aid budget over the last 20 years. I think that it now stands at £1.1 billion. The Bill seeks to save about £35 million. It would not be difficult to devise a schemewe cannot do so now that we have reached Report stagethat will enable people who feel that they have not been treated fairly and have additional information to put before the bodies to go to another body to put their views forward. The new clause would not allow us to do that. It moves us in the right direction, but it is not quite the strengthening amendment that I wanted to see.
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