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Mr. Heath: Does the Minister agree that new clause 1(2) deals with precisely that point? It would require the financial eligibility test to be met for the interest of justice test to be agreed by the court.
Bridget Prentice: My point is that the new clause does not add to the Bill, which is perfectly capable of dealing with the problems that the hon. Member for Enfield, Southgate identified forcefully and correctly.
New clause 1 proposes that there should be a procedure allowing the bench to grant representation, following an oral application. That procedure is said to be subject to paragraph 3B of schedule 3 to the Access to Justice Act 1999, which reintroduces the means test. That seems rather odd, when the court-based staff would be available to conduct that test.
I am conscious of the argument put forward by the hon. Gentleman, who stressed that practitioners need to be able to apply in court for a grant of representation. He said that that need might arise when dealing with an urgent matter, and that that would work in favour of the court by helping to avoid unnecessary delays in the administrative process.
I emphasise again that the Government are confident that the means test will be sufficiently straightforward for the court-based teams to be able to conduct it swiftly and accurately. Under our system, an electronic database in each court will allow instant access to means information.
The hon. Gentleman was also concerned about first hearings involving defendants who are ill, illiterate or who have mental health problems. The hon. Member for Hornchurch (James Brokenshire) made the same point. However, the early-cover scheme will enable defendants to be represented at the first hearing without legal aid being granted. Solicitors will then be able to help their clients to complete the application form.
Bridget Prentice: I am no electronics whizz, so I cannot go into much detail. However, work on the programme is already in hand, and I can assure the House that it will be ready in time, if the Bill is passed and implemented. Moreover, plans have been made to train court staff to ensure that they are familiar and comfortable with the new system.
The hon. Member for Hornchurch also said that a matter might arise suddenly before a court and that a person might need to be represented quickly. That might
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indeed happen, but a determination about who pays would still have to be made. If a late application became a route to free legal aid, I would be concerned that the practice might not remain exceptional for very long.
Where there is a fundamental change on the issue of the interests of justice in relation to a defendant, we anticipate that it will be a relatively speedy process to obtain and process the necessary information on the means test. I do not agree with the hon. Member for Huntingdon that the matter would be dealt with more speedily by a bench or a Crown Court judge. In effect, a bench or a Crown Court judge will have to call an adjournment while determining whether a defendant should be legally represented, and for solicitors and counsel to be appointed and properly instructed. The system proposed in the Bill will take advantage of that inevitable and natural pause to seek the information pertinent to the means test. I see no reason why the need to refer back to the court-based grant teams should cause any significant additional delay in the process.
The hon. Member for Enfield, Southgate also suggested that the new clause would further safeguard compliance with the European convention on human rights. I disagree: article 6(3) of the convention says that a person with insufficient means to pay for legal assistance should be given it free when the interests of justice so require. The Bill complies with that, and we will ensure that the regulations under the Bill do so too.
Bridget Prentice: The hon. Gentleman mentioned human rights in our debate on this matter in Committee. The fact that he did not mention them again today perhaps shows that my response then was more than adequate.
As I was saying, article 6(3) of the ECHR also gives the accused the right to defend himselfeven in circumstances where other people might think that he would be better off with legal representation.
There are therefore three possibilities: the state pays for legal representation if the defendant cannot afford it; the person defends himself, or he pays for his legal representation. The first two alternatives are a person's rights: the Bill does not change that position, and the new clause would do nothing to safeguard it.
The House will be aware that the bench will also be allowed to hear appeals against a decision to refuse to grant a defendant a representation order on the grounds that the interests of justice have not been satisfied. Although the bench may substitute its own decision on the interests of justice, as before, the responsibility for granting representation will continue to reside with the grant teams, as they must be satisfied that the defendant is also financially eligible.
I emphasise that the Government are not seeking to deny the right to representation in circumstances in which the interests of justice test are met. However, let me repeat that by reintroducing a means test, the
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Government are legitimately seeking to determine whether the burden of defence costs should be met by the state or the individual.
We believe that in designing the new system we have struck the right balance in defining the role to be played by the court in that process. Any proposal to arm the bench or a crown court judge with a residual power to grant representation runs counter to the consensus that has been built up in negotiations with our key stakeholders. I therefore call on hon. Members to reject the amendment.
Mr. Burrowes: The Minister suggests that the new clause should be rejected because allowing oral applications will perpetuate inconsistency in the grant of legal aid. I suggest that that is away from reality. Almost all applications are by way of a written process already. It is only in exceptional cases such as when a mentally ill client is before the courtI will not repeat the examplesthat one wants to have the option that remains in the new clause of allowing an oral application. It is hard to rationalise and find statistics to support the suggestion that oral applications that take place at present in exceptional circumstances create inconsistency in the grant of legal aid. The rationale for refusing, I suggest, is not valid.
The Minister also suggested that ultimately the courts have the discretion to determine the interests of justice test. However, we cannot rest assured with that when the supplement to the framework document contains the threat that if the Legal Services Commission considers on monitoring that there is an inconsistency across the country, as the conclusion says on page 13, the Government
without the involvement of the computer programme to which the Minister referred to allow proper processing of applications for legal aid. The heart of the concern among practitioners and other members of profession is that the essence of the Bill is a measure to remove all powers from those closest at hand to make the proper decisions. Particularly in exceptional cases, magistrates are in the best position in the court to hear an oral application. On that basis, I invite the House to vote.
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