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Criminal Defence Service (Information Requests) Regulations 2009

Copy of the Regs
JCSI 4th Report

Motion to Approve

7.30 pm

Moved By Lord Bach

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, a draft of this statutory instrument was laid before Parliament on 12 January 2009 and was debated in the House of Commons on 11 February. The draft Criminal Defence

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Service (Information Requests) Regulations will support the application process for criminal legal aid in the magistrates’ courts so that information provided by a defendant about their financial status can be properly verified. This follows implementation of Section 57 of the Criminal Justice and Immigration Act 2008 which inserted paragraphs 6 to 8 into Schedule 3 to the Access to Justice Act 1999. In practice, this means that the Legal Services Commission, as the authority responsible for granting publicly funded representation in criminal cases, may request specific information from the Department for Work and Pensions or Her Majesty’s Revenue and Customs.

The Government have long considered that those defendants, in criminal cases, who can afford to pay for their defence in the magistrates’ courts, should be asked to do so. This was the principle that underpinned the Government’s decision to introduce means-testing in magistrates’ courts in October 2006. I should explain that certain categories of applicant are automatically passported through the financial eligibility test. These are all defendants under 18 years of age and all defendants in receipt of one of the four passporting benefits, namely income support, income-based jobseeker’s allowance, the guarantee state pension credit and income-related employment and support allowance.

While the means-testing scheme is now working well in magistrates’ courts, we are continually looking at ways of improving it—such as the new arrangements covered by this statutory instrument. To date, there has been a formal agreement between DWP and Her Majesty’s Court Service which allows HMCS to confirm, through an IT link that provides an immediate yes/no answer, whether an applicant was in receipt of a benefit which rendered them eligible for legal aid. There has also been an informal agreement which allows confirmation of other forms of benefit income with DWP and other forms of income with Her Majesty’s Revenue and Customs. The amendments to the Access to Justice Act 1999, and this instrument, are putting these working practices on a much clearer statutory footing.

While such checks have been undertaken on the basis of written consent provided by the applicant on their legal aid form, the Government believe that these working practices need to be established on a firmer basis. The new arrangements will provide a more detailed picture of the welfare benefits that the applicant may be receiving, which will allow for a more accurate and speedy verification of their financial status. This supports initiatives such as Criminal Justice: Simple, Speedy, Summary which has successfully delivered a more effective and responsive justice system for victims and the public.

It is not always the case that each and every application will undergo verification. For example, there can be circumstances, such as when a defendant is remanded in custody, that applications may be accepted on the basis of self-certification of income. In these cases, the LSC has, in agreement with the National Audit Office, adopted a system of proportionate post-event checks to ensure that any risk to public funds is kept within an acceptable level.

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One specific category of applicant where this would prove of assistance is those individuals who declare zero income on their application form. Although the LSC would not be able to demonstrate conclusively that an applicant has no benefit, appropriate checks with DWP would confirm whether a defendant is receiving any benefits, while checks with HMRC would confirm whether they have any legitimate income. This will prove invaluable in combating potential fraud.

The amendment to primary legislation, supported by the new statutory instrument, will put these arrangements on a much more formal footing and also allow for the necessary robustness and scrutiny. A second related statutory instrument, the Criminal Defence Service (Information Requests) (Prescribed Benefits) Regulations 2009, was laid on 9 February. This details the list of benefits to be considered when assessing an individual’s benefit status.

While the amendments to Schedule 3 to the Access to Justice Act 1999 table some of the information which may be the subject of a request, such as name, address and national insurance number, regulations can specify further information which may be sought. The statutory instrument before the House specifies that information may be requested about an individual’s income, capital gains and benefits administered by HMRC. It also includes information about the applicant’s status as a company director or partner in a business.

Schedule 3 to the Access to Justice Act also allows information to be requested about any benefits which the applicant is receiving from the DWP. The statutory instrument before the House also extends this to benefits received over the two-year period which precedes the legal aid application.

I stress that the new arrangements will not make any substantial difference to defendants or solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on defendants or solicitors. Both this instrument and the other negative instrument were the subject of a 12-week-long consultation exercise last autumn. We received three responses and all were broadly supportive of the Government’s proposals.

Regarding data protection, nothing within the new legislative framework dilutes the Government’s obligation to protect an individual’s personal information and to maintain confidentiality. Indeed, the primary legislation expressly forbids any disclosure of information which contravenes the Data Protection Act 1998. It also specifically makes it a criminal offence to disclose the information for any purpose other than that related to the administration and operation of the means test.

Following the publication of Sir Gus O’Donnell’s data handling report on 25 June 2008, I can further confirm that officials in my department are undertaking a privacy impact assessment in relation to the data-sharing arrangements and their impact upon privacy. This will be taken forward in liaison with the Information Commissioner’s Office with the final document being published on the Ministry of Justice website. We are confident that the proposed arrangements for requesting information set out in this instrument are

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both necessary and proportionate, and that proper measures are in place to afford sufficient protection to applicants.

These new arrangements, supported by the new instrument, support an effective criminal justice system. They will ensure greater accuracy in the information provided by defendants in magistrates’ courts as well as delivering greater accountability for the taxpayer. This strikes a right and fair balance, and I commend the instrument to the House.

7.37 pm

Lord Henley: My Lords, I thank the Minister for his clear explanation of the regulations and of those that went through on other procedures. Ostensibly, the regulations are not controversial, but what is the need for them? The Minister needs to give us further explanation. The Government need to explain why they need the power to allow yet more information to be exchanged between government departments. As I understand it, the Legal Services Commission, which administers legal aid applications, will ask the applicant, when they put in their application, whether they are prepared to allow the department or the Legal Services Commission to go to the DWP to find out whether they are in receipt of the appropriate benefits. Can the Government show whether there has been any abuse of this? The noble Lord explained—as did his honourable friend in another place—that not every application undergoes verification. He then explained that, to avoid delays, verification sometimes took place after the occasion, in which case the individual was asked whether they had been in receipt of benefits. Presumably, if the individual had initially given a dishonest answer, it might be that he was not prepared to give his consent; I do not know if that is the case. However, presumably if he felt that he was “clean”, to use that expression, he would have said, “Yes, go ahead and check”. I do not know whether the Government know that there is any abuse in this area.

The Government have also said that they want to reduce delays, and that that was one of the reasons why in the past they asked only a certain number of people afterwards whether there had been abuse. In this new system, even with the checks being brought in—the Minister has made it clear that they are not going to ask everyone because some people would automatically be accepted as being in receipt of the appropriate benefits—there may be a danger of even longer delays because more people will have to be asked whether these applications were made. I would be grateful if the noble Lord could address those points.

I turn now to a point raised by my honourable friend Mr Philip Davies in another place when he sought assurances from the Government about leaks occurring when private information is exchanged between two government departments. We were told firmly that the Government are undertaking what was referred to as a “private impact assessment” of the data-sharing arrangements. What more can the Minister say about the review into what has been going on, and has any damage been caused to data protection? I welcome the Minister’s remarks on data protection in his opening

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speech; he certainly went further than his colleague in another place. But we would all be grateful if he could add just a little more when he responds to the debate.

Having said that ostensibly the regulations are not controversial, I had better repeat that I still have some doubts as to whether there is any particular need for them because the system seems to be working tolerably well at the moment. Again, however, I hope that the Minister will address that when he comes to respond.

Lord Thomas of Gresford: My Lords, in June 2007 the Solicitor-General, Miss Vera Baird, addressed an international legal aid conference in Antwerp, shortly after the new scheme introduced by the Criminal Defence Service Act came into force. At the time she said that the rollout of this new financial means testing scheme in the magistrates’ courts would deliver annual savings of more than €50 million, which in those days was around £30 million, but today is £50 million, due no doubt to the way this Government have conducted their finances. I should be interested to know whether her forecast of a €50 million saving has been fulfilled. It may well have been, because in an article published in the Observer on 1 February, just a few weeks ago, the Legal Aid Practitioners Group said that it estimated that more than half of the 11,000 lawyers’ offices willing to take on legal aid work less than a decade ago have either closed down or moved out of the field, leaving a shortage of help available for vulnerable people on modest incomes. Carol Storer, a director of the group, said:

“We are hearing about firms struggling to keep legal aid work going; thousands have stopped their legal aid work altogether. It’s is a massive reduction. It is not just the money—although it is extremely hard to make a living out of this type of work now—but also the bureaucracy involved. The paperwork is overwhelming, and that is a complaint we are hearing all the time. Some firms are just gradually whittling down the numbers of legal aid cases they’ll take on”.

I suppose that I had better declare an interest as a practitioner who does legal aid work in the criminal courts, although not in the magistrates’ courts. I can confirm from my own experience that firms are indeed cutting back on legal aid work because it is no longer profitable.

The statutory instrument before noble Lords today has nothing to do with the actual quantum of legal aid. We understand that that has been fixed, and any efforts to raise the ceiling are sternly resisted by the Government in whichever field they arise. This instrument is about the sharing of information and is very much a data protection issue. What is the need for it? Why should one government department be able to go to a whole series of other government departments to find out information about an individual? Why is this needed? It is not going to cost any less to do that than the cost of the current system. In the debate on 11 February to which the Minister referred in his opening remarks, Mr Shahid Malik said that this new system will cost £140,000 or so more. It is a more expensive way of calculating the appropriate level at which legal aid will be granted.

Will time be saved and delays reduced by doing this? No evidence has been produced to suggest that that is the case. No estimate is made in the impact

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statement, but perhaps the Minister would like to tell us whether any time will be saved, or will the magistrates’ courts become even more clogged up with applications because they have to means-test and seek information about every single applicant—not, as is the case at the moment, on simply a selection of applicants who voluntarily agree to have their affairs investigated. Is there fraud in the current system? Nothing has been demonstrated by the Government to show that legal aid applicants in criminal cases are fraudulent when they make their applications. How many cases have been brought against applicants for legal aid since October 2006 where it was alleged that they had misrepresented their means in one way or the other?

These regulations appear to be what the Government call the “transformation” approach—that is the word used in the impact assessment. It talks about transformational government, which enables one department of government to know everything about an individual if he makes an application. We on these Benches are opposed in principle to that approach. It is wrong in principle that any department of government—we do not know at what level the assessment will be made—should be able to gain information just at the drop of a hat. The data sharing culture that is now a part of transformational government is a threat to privacy. It is a threat to the whole concept of data protection. It implies that the Government’s goal is to treat citizens as one individual file with a coherent single relationship with a centralised state, and that the Government should have the right to share that individual’s data among all their organs. We on these Benches are opposed to the principle behind this statutory instrument, which does precisely that. I should like some assurances from the Minister that the protections of the Data Protection Act will be retained, that the necessary consents to the particular information-sharing order will be obtained, and that the whole process should be within the purview of the information commissioner.

What appears on the face of it to be a pretty anodyne statutory instrument in effect breaches a number of principles. First, it confirms how legal aid is now being denied to a considerable section of the public because of the means testing and the limits placed upon it. Secondly, it pursues the Government’s transformational processes by making information about the individual available to every single department that has anything to do with that individual.

We do not propose to vote against this statutory instrument tonight, and we cannot amend it. However, we remain opposed to it in principle.

Lord Bach: My Lords, I thank both noble Lords for their comments on this statutory instrument. I will first try to explain the need for the power to exchange more information in this way. It allows for a more detailed verification of an applicant’s financial status, which in itself can help to tackle fraud. We are talking about a defendant in a case who is seeking taxpayers’ money—legal aid—which is a limited resource. The noble Lord, Lord Thomas, talks about it as though it has not increased hugely in the course of the past 25 years and the past 10 years. In England and Wales

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we spend about £2 billion per year on legal aid, £1.2 billion of which goes towards the criminal courts and the balance towards both family and civil courts. Many of us think that that is a serious imbalance, particularly against civil legal aid and those at the bottom of the pile who need more help than they get.

The argument is that, in criminal cases, the amount of legal aid spent is very large indeed. It is true that the legal aid budget is not going up at the moment, nor is it likely to in the foreseeable future. That would currently be the case under any Government that was in charge. However, it is a generous system compared to that of any other country in the world. I want to be careful about comparisons, because not all systems of law are the same as that which we conduct here.

The reason for this statutory instrument is that it allows for more detailed verification. There will be no delay—less delay, if anything—as a consequence. Although the previous system did not work badly, there was a feeling among government departments that it was better to put this system on a clearer and more systematic basis, so it was decided to go this way.

To answer the noble Lord, Lord Thomas, on savings made by the means-testing scheme in the magistrate’s courts, its reintroduction has delivered in excess of £65 million in net savings between October 1 2006 and the end of August 2008. This has enabled the Government to maintain their commitment to make some effort to rebalance legal aid funding in favour of the civil scheme. I hope that that will find general support in this House and elsewhere.

Lord Thomas of Gresford: My Lords, is the Minister saying that that money has remained within the legal aid budget but is used for other purposes?

Lord Bach: Yes, my Lords, that is exactly what I am saying. Indeed, the money that this new scheme has cost, referred to by the noble Lord, comes not from the legal aid fund that the LSC is responsible for but from its own administrative fund. That is of course a separate amount of money, which, in the final analysis, comes from the Exchequer. Those costs will obviously go to pay Her Majesty’s Court Service staff who do some of this work on behalf of the LSC, and to the other two departments of state for their work.

Questions have been asked about data protection. We understand and respect that the House as a whole is concerned about this. The noble Lord, Lord Henley, asked me about a privacy impact assessment, which I will describe a bit better. It is a process during which the potential privacy issues and risks of a proposal are identified and examined from the perspectives of all those involved—in other words, users and service providers—and consideration given to how to avoid or minimise privacy concerns. These assessments should be carried out on all policies that involve the processing of personal data.

Government departments are required to undertake privacy impact assessments because the data sharing review, published in July last year, noted their benefits, stating:

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“Privacy impact assessments are structured assessments of a project’s potential impact on privacy, carried out at any early stage. They enable organisations to anticipate and address the likely impacts of new initiatives, foresee problems and negotiate solutions”.

In addition, the data handling review mandated that all departments will introduce privacy impact assessments which ensure that privacy issues are factored into plans from the start.

Of course, this is personal information given by one government department to another for a purpose. However, we are satisfied that that information is secure, and is unable to get out into the hands of those who have absolutely no need to have it. I hope that, with those few words, I have to some extent comforted both noble Lords about these provisions.

Lord Thomas of Gresford: My Lords, will the Minister respond on the issue of fraud? Is there currently fraud in the system? How many cases have been brought?

Lord Bach: My Lords, I am afraid that I am not in a position to say how many cases have been brought. The potential for fraud was undoubtedly somewhat greater under the old system than the new. Of course, there will always be attempts at fraud in this field. However, I tell the noble Lord frankly that there has not been a huge amount of fraud that I could point to under the old system, and I certainly do not anticipate much under this revised system. I have done my best to answer the questions that have been asked.

Motion agreed.

7.58 pm

Sitting suspended.

Marine and Coastal Access Bill [HL]

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Delegated Powers 1st Report
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Committee (5th Day) (Continued)

8.30 pm

Clause 64: Applications

Amendment 101ZA

Moved by Lord Tyler

101ZA: Clause 64, page 36, line 36, leave out “or expedient”

Lord Tyler: It will surprise and delight the Committee to hear that my noble friend Lord Greaves is not sufficiently indisposed to prevent him doing some very important research on this issue, and so I am fully briefed. He obviously has access to his copious library and to the internet, which is even more copious. However, there is a serious point here and I hope that, having given the Minister due warning of this issue, his officials will have found precedents for the use of this curious phrase. If something is necessary, it surely is unnecessary to add “or expedient”; either it is necessary or it is not. What is the point of adding “expedient” unless it is just expediency?

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