Criminal Defence Service Bill [Lords]

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Standing Committee A

Tuesday 10 January 2006

The Committee consisted of the following Members:

Chairmen: †Derek Conway, Mr. Greg Pope

†Baird, Vera (Redcar) (Lab)

†Brennan, Kevin (Cardiff, West) (Lab)

†Bryant, Chris (Rhondda) (Lab)

Carmichael, Mr. Alistair (Orkney and Shetland) (LD)

†Cooper, Rosie (West Lancashire) (Lab)

Davies, David T.C. (Monmouth) (Con)

†Djanogly, Mr. Jonathan (Huntingdon) (Con)

†Heath, Mr. David (Somerton and Frome) (LD)

†Keeley, Barbara (Worsley) (Lab)

†Lancaster, Mr. Mark (North-East Milton Keynes) (Con)

†Lucas, Ian (Wrexham) (Lab)

†Pound, Stephen (Ealing, North) (Lab)

†Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)

†Ruane, Chris (Vale of Clwyd) (Lab)

†Tami, Mark (Alyn and Deeside) (Lab)

†Watkinson, Angela (Upminster) (Con)

†Wright, Jeremy (Rugby and Kenilworth) (Con)

Emily Commander, Committee Clerk

†attended the Committee

[Derek Conway in the Chair]

Criminal Defence Service Bill [Lords]

10.30 am

The Chairman: Good morning and happy new year. I remind the Committee that there is a money resolution in connection with the Bill. Copies are available in the room. I also remind hon. Members that adequate notice should be given of amendments. As a general rule, my fellow Chairman and I do not intend to call starred amendments, including any that might be reached during the afternoon sitting, which will be chaired by my colleague, Mr. Greg Pope.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): I beg to move,

That—

(1) during proceedings on the Criminal Defence Service Bill [Lords] the Standing Committee shall (in addition to its first meeting at 10.30 am on Tuesday 10th January) meet—

(a) at 4.00 pm on Tuesday 10th January;

(b) at 9.00 am and 1.00 pm on Thursday 12th January;

(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 pm on Thursday 12th January.

I wish you a happy new year, Mr. Conway, and say what a delight it is to be serving under your chairmanship. You dealt with the programming sub-committee last night very effectively and informally. I hope that the Committee will follow in your footsteps in the course of today's debates.

Mr. Jonathan Djanogly (Huntingdon) (Con): Good morning, Mr. Conway. Likewise, I look forward to serving under your chairmanship. The programming sub-committee yesterday went very well from our point of view. We are happy with the motion and will not oppose it.

Mr. David Heath (Somerton and Frome) (LD): I, too, welcome you to the Committee, Mr. Conway, and wish you a happy new year. I hope that our proceedings will be commendably brief; I see no reason to extend them unnecessarily. Indeed, I would have been content with the Bill as it stands. However, the Government proved intransigent in one respect, which means that there will be a significant debate on at least one of the matters before us. Other than that, I hope that we can move to a speedy conclusion of our considerations.

Question put and agreed to.

Clause 1

Grant of rights to representation

Bridget Prentice: I beg to move amendment No. 1, in clause 1, page 2, leave out line 23.

As the hon. Member for Somerton and Frome (Mr. Heath) has recognised, much of our debate will be on Government amendments Nos. 1 and 2, which could be said to go together. It may help the Committee if I explain the Government's position.
 
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The object of amendment No. 1 is to overturn an amendment passed in the House of Lords, because we do not feel that it would be helpful to have judicial oversight, in the way proposed in the other place, of what is essentially an administrative procedure. We accept that there has to be a right of appeal in cases in which a defendant believes that the interests of justice have not been served. As I stated on Second Reading, we make that clear in the supplement to the framework document, and I do not think that anybody would disagree. However, the Government strongly argue, as we have consistently argued, that should a defendant complain about a miscalculation or an error in the administration of a means test, an administrative review of the application would be more appropriate than an appeal.

Concerns expressed in the other place led to the amendment to which I have referred but I believe that the were misplaced. Amendment Nos. 1 and 2 seek to reverse the position and to restore the Bill to its original state. We believe unequivocally that the applicant should have the opportunity to challenge a determination if he is found to be not financially eligible for criminal legal aid. We propose judicial review not as an alternative to appeal but as a further stage after review. The key question, therefore, whether the hearing should be conducted by the Legal Services Commission or whether there should be a full court appeal. We have consistently stated our view that the financial eligibility test is almost entirely a matter of fact, not of judgment. It is an administrative process, not a judicial one. As I stressed on Second Reading, that assessment is shared by senior members of the judiciary.

Mr. Heath: Will the Minister confirm that she said what I think I heard her say—that it is almost entirely a matter of fact?

Bridget Prentice: Personally, I would say that it is entirely a matter of fact; I cannot foresee a situation in which the financial eligibility test would not be purely administrative.

The decisions that will need to be taken will not call for fine judgments on obscure or complex issues of law, so I see no need for the courts to be involved, as they should be left to focus on judicial matters. It is right, for example, that they should decide on appeal whether it would be in the interests of justice that a defendant should be legally represented. That would rightly fall within the ambit of the court. The court might also be asked to consider whether assault was likely to result in imprisonment if the defendant was convicted.

The judiciary should clearly take a view on such matters, but it is not for the courts to decide on appeal whether the state should intervene to pay an individual's defence costs. Determining whether an applicant's declared income has been properly calculated is not the sort of task that should be dealt with other than administratively. That is why Government amendment No. 2 to clause 2(2) re-introduces a provision to allow for the review of such decisions. It will form part of proposed new paragraph 3B(4) on financial eligibility, which will be
 
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inserted into schedule 3 to the Access to Justice Act 1999.

The hon. Member for Somerton and Frome has argued that application of the means test could give rise to complex cases that would be more appropriately dealt with by appeal. On Second Reading, he referred to the problems of assessing joint incomes if there has been an estrangement or if the applicant has a new partner. I raise the subject now although I am sure that he will come back to it later in the debate because it allows me to ask some questions.

Is the hon. Gentleman saying that the ''complex'' cases he talks of raise issues of fact or of law? If they remain issues of fact, however complex they might be, it would surely be suitable for the Legal Services Commission to review them, and they therefore should not be the subject of an appeal to the court. A case might raise a question of law or interpretation of the Access to Justice Act 1999 or the regulations, and a complaint on an error of law would be a proper ground for judicial review. Nevertheless, we believe that such cases will be so rare that it will be proper for them to be dealt with by judicial review, after internal review. They will not require an intermediate appeal to the court.

I have gone into considerable detail in explaining the Government's reasoning for introducing a review process for applicants unhappy with determination of the means test. I hope that it is clearer why retention of the power in paragraph 4 of schedule 3 to the Access to Justice Act 1999 is so critical. The power allows cases to be prescribed in which an applicant cannot appeal against a decision to refuse representation or to withdraw a right to representation. Without that power in its current form, there would be a clear inconsistency with proposals to allow for a review of the means test.

I stress that the power would never be used to implement regulations that might seek a wholesale ban on the right of appeal. However, it will allow us to guard against abuse of the system. For example, it is possible that some applicants might seek to abuse the system—for example, by submitting countless appeals against an unfavourable decision. That would be a gross misuse of the court's time and resources. Retention of the power will give us the means to tackle such abuse, and we therefore consider the amendment both prudent and essential.

I suspect that this will be my longest speech today, so I conclude by saying that it is my belief that the appeal and review process proposed by the new scheme strikes the correct balance between a robust defence of an individual's rights and the need to ensure that court resources are not misused. I trust I can rely on the Committee's support for the Government's first and, indeed, the second amendment.

Mr. Djanogly: I declare any interest that I might have as a practising solicitor.

This brief Bill—I use the word brief in the context of our position on Second Reading, where we made it clear that it will do little to alleviate the hard times that have befallen legal aid practitioners—will allow the power to grant rights for representations to be
 
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transferred from the courts to the Legal Services Commission, introduce a means test for the granting of such funding and, where the test is met, advise for contribution orders based on means.

Several amendments were made in the other place, and I pay tribute to their lordships for the work done on the Bill. The Conservative Opposition feel that access to justice is an important matter that requires full and serious consideration. Through the determined efforts of our noble Friends and others in the other place such detailed consideration has been possible. As the Minister said, today is not the time or place to go over every single argument that has already been made.

We welcome the restoration by amendment in the other place of responsibility for legal aid matters to the Lord Chancellor, as we welcome the amendments made on appeals. I will emphasise that point later, but suffice it to say for the moment that we believe it important that the court should be able to hear appeals on the interests of justice tests as well as on the eligibility tests, and they should be able to consider such matters afresh. We were, therefore, somewhat disappointed with the Government's decision to overturn measured, considered and expert amendments supported by their noble lordships. I point out immediately that the Conservative party has long been in favour of many of the measures contained in the Bill, particularly the concept of means-testing for those who can afford it, which was abolished by the Government in 2001.

We have problems with amendment No. 1 and with the Government's general position. This ground has, of course, been extensively covered by in the other place, where Lord Goodhart—

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Prepared 10 January 2006