Fifth Standing Committee on Delegated Legislation
Thursday 25 April 2002
[Mr. Peter Pike in the Chair]
Draft Criminal Defence Service
(Representation Order Appeals)
(Amendment) Regulations 2002
The Parliamentary Secretary, Lord Chancellor's Department (Mr. Michael Wills): I beg to move,
That the Committee has considered the draft Criminal Defence Service (Representation Order Appeals) (Amendment) Regulations 2002.
The amendments, which were laid before the House on 26 March 2002, make two changes. The first is to the time at which a representation order takes effect when the applicant has appealed against a refusal of funding. The second is a group of technical amendments that are needed to support bringing into the criminal defence service appeals from the financial services and markets tribunal.
I shall deal with the matter of timing first. At present, when a defendant is refused a criminal representation order by a court, they can appeal by making a fresh application to the same court. Regulation 6 of the Criminal Defence Service (General) (No. 2) Regulations 2001 provides that a representation order takes effect from the date that the court receives the fully completed application. Therefore, when a defendant has had to apply a second time, their representation order takes effect only at the time that they made the renewed application. That was not the position under the previous legal aid system. Regulation 44(7) of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 allowed ''pre-grant costs'' to be paid when, in the interests of justice—[Interruption.]
The Chairman: Order. Would whoever has a mobile phone please ensure that it is switched off?
Mr. Wills: Regulation 44(7) of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 allowed ''pre-grant costs'' to be paid when, in the interests of justice, work had to be done before representation had been granted.
Regulation 3 of the instrument amends the existing Criminal Defence Service (Representation Order Appeals) Regulations 2001 to restore that position. It provides that, when a second application has had to be made, any resulting representation order takes effect from the date the original application was received. That applies to all appeals in any court dealing with criminal matters.
Before explaining the financial services amendments, I should give some background on the procedure to which they relate.
Mr. John Burnett (Torridge and West Devon): Does the Minister envisage that the public defenders scheme
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that the Government are piloting will be available in such circumstances to defend people?
Mr. Wills: Yes, I envisage every possibility of that. We are piloting the scheme, and we shall obviously have to find out what happens as it takes root throughout the country. However, I see no reason why not.
The financial services and markets tribunal was established only on 30 November 2001. It deals with matters referred following a decision of the Financial Services Authority against a person for market abuse. Applicants to the tribunal are helped by a legal assistance scheme that provides help for people who cannot afford the cost of legal advice and representation. Appeals from the tribunal go to the Court of Appeal's civil division. However, the nature of the work, and in particular the fact that it can involve heavy fines, means that public funding must be provided, on the basis that it is criminal work, in order to comply with our obligations under the European convention on human rights.
Mr. William Cash (Stone): The power to make such orders is provided in certain circumstances under section 14(3) of the Access to Justice Act 1999. Will the Minister guide me in his opinion about the provisions that arise in the context of non-contracted private practitioners or other provisions that require the commission to discharge the function?
Mr. Wills: I am sure that it is wholly my fault, but I did not quite understand the question. Perhaps the hon. Gentleman would help me.
Mr. Cash: It was, as always, a helpful question, and it was not put with any hostile intent. It is just a matter of clarification. I am always anxious to be certain that when powers are sought under an order, particularly under your wise guidance, Mr. Pike, we should be satisfied that the power is valid.
I wonder whether the Minister could direct me on a point, or perhaps while he is listening, others can give him the answer. I do not have grave doubts about the provision, but I am uncertain about the words ''non-contracted private practitioners'' and the next words ejusdem generis, which deal with the power
''by order make any other provision . . . to discharge''
functions. I am not sure whether they fall neatly into the provisions prescribed by the statutory instrument. There may be no problem but I, in my innocent fashion, like to ask simple questions.
Mr. Wills: I have learned that about the hon. Gentleman in the past few months. As always, I am thankful for his help in clarifying matters. I would like to be clear that he is asking where the authority to make the regulations flows from. I see that he is nodding. Section 14(3) of the 1999 Act, to which the hon. Gentleman refers, applies to remuneration, and the regulations that deals with cost and what is covered. The power is provided under schedule 4(3). I hope that that helps him. Perhaps he would like to look at that schedule while I occupy the Committee with other matters.
Mr. Cash: I think that the Minister meant schedule 3(4), which is a provision relating to appeals.
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Mr. Wills: I hope that we have satisfied the hon. Gentleman on that point, although he does not look sure.
Mr. Cash: The provision of schedule 3(4) is not specific. It refers to section 14, and simply says:
''Except where regulations otherwise provide, an appeal shall lie to such court or other person or body as may be prescribed against a decision to refuse to grant a right to representation or to withdraw a right to representation.''
I am still slightly puzzled as to how that gives rise to the power to make the provision, but I have listened to what the Minister said.
Mr. Wills: I take it that the hon. Gentleman is puzzled, but also satisfied.
Mr. Cash: May I make a final point? I am absolutely sure that the matter is not one on which the Committee will be able to make any kind of adjudication. If there is any doubt, I am sure that it will be dealt with in the courts. Shall we leave it at that for the time being?
Mr. Wills: I am happy to proceed on that assumption. I shall continue with my explanation of the background to the second aspect of the regulations.
At the moment, funding from the CDS is available for cases in the criminal division only. As I was saying, we must make sure that public funding is provided on the same basis. We must do so even when appeals from the tribunal go to the Court of Appeal's civil division because the nature of the work means that it has to be treated as if it were criminal work in order to be compatible with the European Court of Human Rights.
Several regulations have already been passed that remove the distinction and allow CDS funding to be used in either division as appropriate. The amendments in regulation 4 support that by making similar changes to the way appeals against refusal of funding are dealt with. Specifically, they allow the necessary renewed application to be made to the head of the civil appeals office, as with the original application. A person appealing to the Court of Appeal will not be means-tested. Funding will remain subject to the interests of justice test. Again, as with other criminal representation, the court will be able to order defendants to repay some or all of the cost of their defence. I commend the instrument to the Committee.
Mr. Cash: May I repeat that it is a great pleasure to speak for the first time on an order under your wise guidance, Mr. Pike? No doubt you will pull me up if I go wrong, but I will do my best.
I have already made one substantive point and voiced my concern about cases involving the question of separate funding, and I will not repeat the point. I expect that my uncertainties will be picked up by other hon. Members and further thought can be given to the matter in due course.
The question is one of principle—do the Opposition agree with the objectives of the order? We certainly do,
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although I sincerely hope that the objectives will be properly achieved under the order.
The question of the timing, or
''the date upon which a representation order granted after an appeal shall take effect''
contains nothing that would give rise to any objection from the Opposition.
On the question of policy, a defendant who is refused a criminal representation order by a court can appeal by making a fresh application to the court. In the circumstances that have arisen, namely that a defendant has had to apply for a second time, his representation order takes effect only at the time that he made the renewed application. Clearly, that issue should be dealt with.
Under the Legal Aid in Criminal Care Proceedings (General) Regulations 1989, those pre-grant costs, as the Minister said, had to be paid when incurred in the interests of justice. Work had to be done before representation had been granted. Clearly, the matter needed clarification. However, the question of whether work was done in the interests of justice before representation had been granted is an interesting one. Was the work generated rather generously, or was it necessary? In cases in which it is clear that work had to be done, the matter must be remedied. I trust that the Minister will assure me that the Government have examined the question of the differences between billing in which work is merely generated, and billing when the work was essential in the interests of justice. If the work were done in the interests of justice, the matter must be sorted out and the pre-grant and similar costs should be made available. I seek clarification from the Minister on that point. However, regulation 3 appears to be justified.
I draw attention to the fact that, in cases involving refusal of representation on appeal, payment still cannot be made because there is no authority to incur costs. Curiously, that is not dissimilar to the point that I already made. In dealing with the question of whether there is authority to incur costs, one is almost asking whether the costs were justified. One is a matter of vires and the other of practicalities. In this case, I am interested in the practicalities. I would like the Minister to assure me that nobody would be unfairly treated under the provisions, in cases of refusal of representation on appeal.
I am intrigued by the exceedingly helpful explanatory note. I have lived with statutory instruments since 1964, and on occasion have found the whole business of interpreting them a complex one. Without flattering anyone too much, I wish to say that the new explanatory memoranda are incredibly useful. Sometimes, they show problems that even the Government have not thought about when preparing them. That is a bonus, not a disadvantage. They are enormously helpful. The Minister and I have exchanged opinions on the subject on many occasions.
The more transparent we make legislation the better, particularly when it comes to amending statutory instruments that are dependent on Acts of
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Parliament. Sometimes, one is in an almost vicarious situation, and the explanatory memorandum is then extremely helpful.
On costs, the explanatory notes say that
''No costs to the public have been identified.''
However, there is a sub-heading titled ''Costs to the Exchequer''. I am not trying to explore the semantics, but I have difficulties with the difference between costs to the public and to the Exchequer. The costs to the Exchequer are said to be
''Costs arising from the appeals amendment'',
which are ''expected to be minimal.'' I have said that we are in favour of rectifying and clarifying matters, and making them fairer. It will be interesting to know what the costs are likely to be, if the Minister has any idea.
The notes say that
''Costs arising form the inclusion of FINSMAT appeals in the CDS are also expected to be minimal and are included in the Lord Chancellor's Department's budget.''
We all know that that budget can occasionally be put under severe pressure, whether because of wallpaper or otherwise. Has any estimate been made of the cost to the Exchequer? Does the Minister agree that there is not much, if any, distinction—I think that there is none—between costs to the public and costs to the Exchequer?