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COMMONS AMENDMENTS

33

Clause 15, divide Clause 15 into two clauses, the first (Representation) consisting of subsections (1) to (6) and the second (Selection of representative etc.) of subsections (7) to (11)


34

Clause 16, page 12, line 37, after ("Commission") insert (", and employees of any body established and maintained by the Commission,")


35

Page 13, line 1, at end insert--


("and duties on employees who are members of a professional body to comply with the rules of the body.")

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36

Page 13, line 4, leave out from ("shall") to end of line 5 and insert ("consult the Law Society and the General Council of the Bar and such other bodies or persons as it considers appropriate")

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 33 to 36.

Moved, That the House do agree with the Commons in their Amendments Nos. 33 to 36.--(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

37

Clause 17, page 13, line 19, leave out ("the Crown Court") and insert ("any court other than a magistrates' court")

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37. I wish to speak also to Amendments Nos. 38 to 41.

Amendments Nos. 37 to 39 make technical changes to Clause 17 to ensure that it delivers the Government's intended policy. Clause 17 provides that a judge may order a defendant to pay some or all of the cost of any representation funded for him as part of the criminal defence service. This will replace the existing complex and wasteful system of means testing every applicant for criminal legal aid at the start of a case. The new system will eliminate the delay caused by means testing and target wealthy criminals more effectively.

Orders under Clause 17 will be made where the cost of the representation to be recovered is high enough to justify the cost of the scrutiny of a defendant's assets by a special investigation unit; that is why these orders are not available for cases which do not proceed beyond the magistrates' courts.

This Government's intention is that in all courts other than the magistrates' court, the court at the end of a case will have a duty to consider whether a defendant should pay for his defence costs. It may be apparent to the judge that the defendant has substantial assets as a result of the nature of the evidence given during the trial. In these circumstances, after hearing representations from the defence, the court could make an order. In other cases it may be appropriate for an investigation to be conducted into a defendant's means by a special investigation unit.

As drafted, the power to make a recovery of defence costs order is restricted to the Crown Court, and the scope of an order to representation in the Crown Court. Amendments Nos. 37 and 38 ensure that the Court of Appeal can also make orders under Clause 17. Amendment No. 39 allows the order to cover the cost of all representation, including representation in the magistrates' court. Amendments Nos. 40 and 41 concern the information necessary to allow the court to make a recovery of defence costs order.

As I have said, in some cases it will be appropriate for an investigation to be conducted into a defendant's means by a special investigation unit. During this investigation it might, in exceptional circumstances, be appropriate to prevent the defendant from disposing of

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substantial assets, perhaps with a view to him avoiding an order. Amendment No. 41 would give this power. I commend these amendments to the House.

Moved, That the House do agree with the Commons in their Amendment No. 37.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

38

Clause 17, page 13, line 20, leave out ("trial judge") and insert ("court")


39

Page 13, leave out line 22 and insert ("any representation so funded for him (in proceedings in that or any other court).")


40

Page 13, line 31, leave out from ("furnishing") to second ("to") in line 32 and insert ("of information and evidence to the court or the Commission for the purpose of enabling the court")


41

Page 13, line 34, at end insert--


("( ) prohibiting individuals who are required to furnish information or evidence from dealing with property until they have furnished the information or evidence or until a decision whether to make an order, or the amount to be paid, has been made,")

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 to 41.

Moved, That the House do agree with the Commons in their Amendments Nos. 38 to 41.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

9 p.m.

COMMONS AMENDMENT

42

Clause 22, page 16, line 6, at end insert ("and any authorised by the Commission to be taken.").

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 42. I shall also speak to Commons Amendment No. 44.

Amendment No. 42 corrects an omission in the Bill as drafted. Clause 22(2) provides that people providing services funded by the commission cannot take any payment other than that made by the commission. This carries over from Section 31(3) of the Legal Aid Act 1988 the prohibition on "topping-up"; that is, seeking to supplement legal aid rates by charging the client an additional sum. The Legal Aid Act allows exceptions to be made by regulations. Amendment No. 42 will enable the Commission to authorise exceptions to the general prohibition. It would do this as a term in any relevant contract.

Commons Amendment No. 44 is a drafting amendment intended simply to shorten the Bill by some eight lines. Clause 22(5) mirrors Section 31(2) of the Legal Aid Act 1988. Section 31(2) puts beyond doubt that a successful legally-aided litigant can recover his or her costs from the opposing party. This is to prevent any argument that the assisted person is not entitled to costs under the indemnity principle.

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A provision along these lines has been part of the legal aid legislation since 1949. Since then, legal aid has become a firmly established part of the legal system, and several other forms of funding which override the strict indemnity principle have developed. Commons Amendment No. 69, which we will discuss later, is a general provision to allow rules of court to override the indemnity principle. So it is now inconceivable that any court would seriously entertain the argument that a legally-assisted litigant was not entitled to costs.

But even if that were in doubt, Clause 22(5) is unnecessary. Clause 12 contains a broad power to make regulations about costs in cases involving people funded by the Community Legal Service, and subsection (3)(e) specifies that these may include regulations about the principles for determining the amount to be awarded to such a person. As for criminal cases, Clause 22(5) does not apply in any event. Costs in these cases are governed by the Prosecution of Offences Act 1985. I commend the amendment to the House.

On Question, Motion agreed to.

COMMONS AMENDMENT

43

Clause 22, page 16, line 7, leave out second ("of") and insert ("to")

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. With the leave of the House I will speak also to Amendments Nos. 45, 46, 50, 143 to 158 inclusive and 199.

This group of amendments clarifies the powers to prescribe the procedures for courts carrying out functions under Part I of the Bill, particularly in relation to granting rights to representation in criminal cases. It also includes a number of minor drafting amendments.

Amendment No. 45 provides a general power to prescribe in regulations what member or officer of a court is able to exercise the functions of any court or tribunal under this part. This would, in particular, enable regulations to prescribe the procedure for consideration of an application for a right to representation. In addition, for the magistrates' courts, Amendment No. 151 gives power to prescribe in rules when a justices' clerk can make decisions about the right to representation.

Amendment No. 46 provides the flexibility to prescribe different provisions for different areas to accommodate, for example, pilot arrangements.

A right to representation includes a right to advice and assistance as to an appeal. As presently drafted, this is an open-ended entitlement. Amendment No. 50 would allow regulations to prescribe time limits for the provision of advice on appeal, after which the right would lapse. Regulations on the scope of advice and assistance could be made under Clause 14 to allow for cases where advice was needed at a later date.

Amendment No. 150 places the court under a duty to consider withdrawing a right to representation in prescribed circumstances. The Bill as presently drafted gives the court a general power to withdraw a right to representation. Regulations will require the court to

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consider withdrawing a right to representation in certain circumstances. For example, it is intended to place the court under a duty to review the need to continue representation where a reduction in the charge means that representation is no longer necessary in the interests of justice.

It is also intended to prescribe circumstances where the individual fails to co-operate with a means enquiry under Clause 17. Where there is reason to believe that an individual could afford to pay for his own defence, it may be appropriate to conduct a means enquiry during the case so that the judge could consider making a recovery of defence costs order immediately after the trial. If the individual fails to co-operate with a request to provide financial details, the court would have to consider withdrawing the right to representation.

Amendment No. 199 adds two new sub-paragraphs to paragraph 9 of Schedule 11, which contains transitional provisions about the funding of representation in criminal cases. At present, criminal cases in the Crown Court and appeal courts are funded directly by the Lord Chancellor. In future most, if not all, criminal representation will be provided under a contract with the Legal Services Commission or by salaried defenders. But initially, before contracting is fully developed, it will be simpler to retain the current administrative arrangements by which the higher courts assess and pay remuneration on a case-by-case basis, and the Lord Chancellor funds it directly. The existing paragraph 9 of Schedule 11 provides the power to achieve this. The first new sub-paragraph added by Amendment No. 199 provides a link with the power to make case-by-case payments in Clause 15 and deals with the consequential implications for other Acts. The second new sub-paragraph provides for the provisions in Clause 25 about remuneration orders to apply when the Lord Chancellor is funding representation as well as when the Commission is.

Finally, Amendments Nos. 43, 143, 144, 146, 148, 149 and 152 to 158 inclusive achieve drafting consistency by referring to the right as a "right to representation". I commend the amendments to the House.

On Question, Motion agreed to.


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