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Legal Aid (Functions) Order 2000

1.10 p.m.

Lord Bach rose to move, That the draft order laid before the House on 27th June be approved [24th Report from the Joint Committee].

The noble Lord said: My Lords, in moving this order I shall, with the leave of the House, speak also to the Legal Aid (Prescribed Panels) (Amendment) Regulations 2000.

The Legal Aid (Functions) Order 2000 is one of a series of pieces of secondary legislation designed to allow the Legal Services Commission to enter into contracts for the legal services of both solicitors and barristers in very high cost criminal cases. The order

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authorises the commission to determine and authorise work to be carried out, the costs and the method of payment of such costs in respect of representation provided by means of a high cost case contract.

A high cost case is designated as a case which, in the estimation of the commission, would be likely to last 25 days or more at trial, or where the total costs for any one defendant or group of defendants represented by the same firm of solicitors amount to £150,000 or more. This figure includes the costs of counsels' fees and any disbursements in the case.

The intention in providing for individual case contracts in high cost cases is to exert appropriate control over the money spent and work done in such cases. Currently, the top 1 per cent of cases consume approximately 40 per cent of the whole Crown Court legal aid budget. It is essential that the expenditure of such large sums of money is closely monitored and controlled. The Legal Services Commission will be able to do this through individual case contracts, with case management teams working closely with defence teams to scrutinise and authorise items of expenditure. This will be of advantage to the defence team since they will have certainty and regularity of payment. For the public purse it will ensure the best control over the most expensive of cases.

It is the Government's intention to move, under the criminal defence service, to a situation where all very high cost cases are managed under an individual contract. We expect that all such cases arising after April 2002 will be handled under a contract. From April 2001, when the criminal defence service is introduced, the commission will be given powers to insist that very high cost cases are managed under contract. Where a firm with such a high cost case does not wish to enter into a contract, the commission may insist that the defendant choose another firm, one that is willing to work under a contract. However, neither this functions order nor any of the other pieces of secondary legislation on this subject has an element of compulsion.

The Legal Services Commission needs to build up its expertise at managing these very high cost cases, and the intention is to do so with the willing co-operation of firms of solicitors which are expert in handling the largest cases. Until the CDS is introduced, no firm or barrister reporting a high cost case will risk having the case removed from them; they will be free to choose whether to enter into a contract or to continue to do the work under existing legal aid regulations. This functions order will allow a purely voluntary arrangement for contracting to take effect and will give the commission valuable experience in designing these contracts, which will be carried forward as contracting is expanded.

The other set of legal aid regulations to be considered by your Lordships' House today is the Legal Aid (Prescribed Panels) (Amendment) Regulations 2000. These regulations give effect to the long-announced requirement that, with effect from 2nd October 2000, only solicitors employed in offices holding a crime franchise, or which have passed a

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preliminary audit against the crime franchise standards, will be able to undertake work funded by the Legal Services Commission.

It had been the original intention to commence the criminal defence service elements of the Access to Justice Act on 2nd October this year. The Lord Chancellor decided, however, to postpone the introduction of the CDS to 2nd April next year in order to allow extra time for preparation and co-operation with the professions in the introduction of contracts. However, it was decided that the previously published date of 2nd October 2000 for the possession of a crime franchise to undertake LSC funded defence work should remain unchanged. Franchises are granted to firms which have passed a Legal Services Commission quality audit.

The name of the game in legal aid is quality assurance. Gone are the days when any firm, regardless of expertise, could provide legal representation for a client merely on the grounds that he was the firm's client and eligible for legal aid. The Government regard it as their duty to ensure that the lawyers who are provided with state funding to represent their clients in courts should be of the requisite skill and experience--that is, quality assured. That is in the client's interest. It is also in the public interest to ensure that public moneys are well spent.

The Legal Services Commission funds the majority of criminal defence work. All work in the magistrates' courts, all advice and assistance, and all duty solicitor work is funded by the commission. Crown Court work is funded by the Court Service and is not covered by these regulations, other than a few very minor exceptions.

The regulations take account of the fact that there are certain items of work which, although defined in the regulations as criminal work, are often undertaken by other specialist solicitors. For example, individuals facing the prospect of imprisonment for non-payment of debt may be assisted by a solicitor who handles debt cases. Solicitors practising in these limited areas with a contract for such work under the Community Legal Service will continue to be able to act on behalf of their clients.

The regulations will ensure that only quality suppliers are given public funds to assist individuals in the majority of cases. They will provide the commission with a known base of suppliers with which to contract on 2nd April next year. The functions order will allow the commission to gain experience of running high cost case contracts and to gradually build up skill and understanding in the most difficult of cases. Together they are important steps in introducing the criminal defence service in April next year. I commend them to the House.

Moved, That the draft order laid before the House on 27th June be approved [24th Report from the Joint Committee].--(Lord Bach.)

Lord Kingsland: My Lords, in the context of the objectives laid down by the Access to Justice Act, both orders make very good sense.

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So far as concerns the Legal Aid (Functions) Order 2000, in the view of the Opposition it is a constructive response to one of the central problems of criminal legal aid. As the Minister rightly said, 1 per cent of the cases take up 40 per cent of the resources. It will always be true that difficult cases will absorb a disproportionate amount of money; nevertheless the figure is reasonably capable of being reduced. The basis upon which the Minister has approached the matter in the order is, in our view, appropriate and satisfactory.

So far as concerns the Legal Aid (Prescribed Panels) (Amendment) Regulations 2000, as the noble Lord said, these do not apply to Crown Court matters. We share entirely the Minister's view that, in future, quality audit should be the basic principle behind the relationship between the Legal Services Commission on the one hand, and the solicitors who are selected to do particular criminal work on the other. The regulations reflect that and we are very happy with them.

Lord Bach: My Lords, I am grateful to the noble Lord who, with his long experience of these matters, is kind enough to support us on the order and the regulations.

On Question, Motion agreed to.

Legal Aid (Prescribed Panels) (Amendment) Regulations 2000

Lord Bach rose to move, That the draft regulations laid before the House on 27th June be approved [24th Report from the Joint Committee].

The noble Lord said: My Lords, I formally move these draft regulations which have already been spoken to.

Moved, That the draft regulations laid before the House on 27th June be approved [24th Report from the Joint Committee].--(Lord Bach.)

On Question, Motion agreed to.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2000

1.20 p.m.

Lord Bach rose to move, That the draft rules laid before the House on 27th June be approved [24th Report from the Joint Committee].

The noble Lord said: My Lords, I invite the House to approve the rules. These draft rules amend the Special Immigration Appeals Commission (Procedure) Rules 1998. A Special Immigration Appeals Commission, known as SIAC, was established in 1997 to deal with cases where the Home Secretary exercises his power to deport or exclude someone from the United Kingdom on national security grounds or other public interest reasons.

It was created in response to criticism by the European Court of Human Rights that arrangements for challenging the Home Secretary's decision in cases

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involving deportation on the grounds of national security did not comply with the European Convention on Human Rights. The commission is headed by a High Court judge. The Lord Chancellor appoints its members and makes its procedural rules. Unlike the non-statutory advisory panel, which it replaced, decisions of the commission are binding on the Home Secretary, appellants are entitled to representation and the commission can deal with bail applications. It also pioneered the arrangement for a special advocate to be appointed to safeguard the interests of the appellant when he and his representative have to be excluded because confidential information is being considered. The Home Secretary exercises his powers only occasionally. The House will be interested to know that the commission has heard three appeals so far.

The Lord Chancellor will probably want to review the rules fairly soon in the light of experience. However, the main purpose of the current amendments is to give effect to new provisions arising from Part IV of the Immigration and Asylum Act 1999, which we intend to bring into force on 2nd October this year. These are the one-stop appeal procedure and the transfer of cases from the immigration appellate authorities to the commission. There is also some tidying up of the original rules.

The one-stop procedure will require applicants to cite at an early stage all the grounds they have for wishing to remain in the United Kingdom, rather than, as now, making a series of applications and appeals. As part of the one-stop process, members of an applicant's family will also need to raise any additional grounds which they may have for wishing to remain in the United Kingdom.

By providing a framework for all aspects of an appellant's case and those of his family to be dealt with at the same time, the one-stop procedure represents a real streamlining of the system and one which will help us to realise our vision of a fairer, faster and firmer process for immigration and asylum appeals.

The way the procedure will work is that when the Secretary of State serves a negative decision attracting a right of appeal in the United Kingdom, he will require a statement of any additional grounds for remaining in the UK. If the person is appealing, that must accompany the notice of appeal. The Secretary of State will review the case in the light of the appeal and any statement of additional grounds. If he maintains his negative decision, he will explain why. Further appeal rights may arise from any additional grounds given for remaining in the UK and appellants will be able to supplement their appeal notice in respect of those. The time limits for appealing mirror those proposed for appeals to the immigration appellate authorities.

Those appealing from abroad will have 28 days to lodge their appeal. We believe it essential that those anxious to enter the UK should appeal against a refusal of entry very quickly. We consider that 28 days is a reasonable time for them to do that.

Those appealing within the UK will have a two-stage time limit. First, they will have five days to lodge their appeal and any statement of additional grounds. That

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is fast, but it is surely vital that people facing possible removal should say straightaway if they think the Secretary of State has made a mistake and raise any other grounds they wish to have taken into account. Secondly, if the negative decision is maintained, they will then have another five days to supplement their appeal if there are appealable issues arising from any additional grounds they gave for remaining in the United Kingdom. Importantly, between those two steps, they will have time for reflection while the Secretary of State considers their appeal and additional grounds. There is, of course, no reason why a person should not raise all their reasons for staying here in the very first instance, and applicants will be encouraged to do so.

Apart from the one-stop appeal procedure, the amendments enable the transfer of appeals from the immigration appellate authorities to the commission. This will cater for cases in which national security considerations are introduced either by the appellant or by the Secretary of State when an appeal is already before the immigration appellate authority.

The rest of the amendments remove inconsistencies arising from the introduction of the new procedures, and tidy up ambiguities in the 1998 rules. I invite the House to approve the rules.

Moved, That the draft rules laid before the House on 27th June be approved [24th Report from the Joint Committee].--(Lord Bach.)

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