Criminal Defence Service Bill [HL]

My Lords, the Bill had pre-legislative scrutiny. One would therefore expect it to contain the basic provisions of the scheme to be brought into being. But, again, we face the making of more regulations. Everything is to be set out in detail in regulations that we have not seen, even in draft. Those regulations will apply not only to the magistrates’ court but also to the Crown Court. It is impossible to give adequate scrutiny to proposals which are still kept hidden. The framework document, to which the Minister referred, suggests that the scheme involving Crown Court cases is still under development and that a likely feature will be a contributions regime. The noble Baroness said a moment ago that the same principles that apply to the magistrates’ court cannot be applied to the Crown Court and that therefore more consultation will be necessary. Yet in the Bill the Department for Constitutional Affairs takes power to issue regulations—and of course such is the inadequate machinery of this House that those regulations cannot be amended in due course. Perhaps I may be forgiven if I make some comments about the Crown Court position, about which I know quite a bit, where the preponderance of the money available for legal aid is now spent. If I do not make those comments now, I will not have the opportunity of making any effective comments if regulations are brought into being. The Government complain of the increased cost of defence work and, indeed, of the increased length of trials. The implication is very often that that is in some way due to the attitude of the defence legal teams to the conduct of the criminal justice system—an attitude which is both irresponsible and cost provoking. The increased length of trials, and therefore the increased cost, is due to a number of factors which interrelate. First, there is complex legislation. That can be laid at the door of the Government. No sooner have the parameters of one Criminal Justice Bill been discussed and tested and applications and rulings obtained in relation to them than another Criminal Justice Bill is launched by the Government. Most provisions over the past few years have been designed to make it easier for the prosecution to persuade a jury to convict whoever happens to be standing in the dock at the relevant time; I think of the presumptions that were introduced in the sexual offences Bill or the determination of the previous Home Secretary to ensure that an individual’s bad character—his list of convictions—should be produced. That is one problem that lengthens trials; the second is the Crown Prosecution Service. That service, under pressure to bring a case to court as quickly as possible, throws statements at the defence as soon as it possibly can and follows them up with endless notices of additional evidence, each of which demands time for discussion and the taking of instructions from the client. Thirdly, the Prison Service is a disgrace in its privatised and statutory forms. Case after case is delayed in courts right across the country while the prison van is awaited. There is no time for proper consultation unless an application is made to a judge, which has to be granted. Then there is the practice of listing applications—bail applications and other elementary matters—before a trial judge, particularly before the senior judge who is trying a serious trial in a busy court complex. Ranks of senior counsel may be awaiting completion of the judge’s list. It is not unusual to lose up to an hour each day so that over a week a full court day is lost. Finally, there is the method of payment. The graduated fee scheme provides a basic trial fee based on a simple bean count of the number of pages the prosecution produces and the number of witnesses. There is then a ““length of trial”” uplift. You get more if the case goes on for longer. That means it does not pay to complete a case quickly. If a defendant pleads guilty on the strong advice of his counsel, that counsel will be paid substantially less—not more—than if he had strung the case out for a long time. The Bar Council has described the system of payment as creating perverse incentives which deny a proper reward for those who conscientiously focus on the issues and shorten the proceedings. Under the present system, preliminary work is not paid for at all. A junior counsel in Newcastle told me   only last week that he had spent 21 hours of preparation so far for a pre-trial review involving one of those murder cases that we discussed in a recent Bill, where a husband and wife are charged with the murder of a child and it is difficult to know which of them carried it out. In such a complex case, counsel does not get paid for all the hours of preparation he has to put in before the pre-trial review. I could go on, but my noble friend Lord McNally told the party meeting that there would be a tear in the eye of everybody listening if I went on for too long about counsel’s remuneration. I fail to see any tears. But there we are; I leave it at that. The Lord Chancellor, having introduced a bad scheme of remuneration in very high costs cases, which led to a virtual strike of the criminal Bar, is now talking about asking for bids from Queen’s Counsel. The client in a commercial case can judge how much he wants to pay and how much expertise he is hiring. In criminal cases it is not the client in the dock who decides under this system; it is proposed that some unknown person in the Legal Services Commission will decide who is the cheapest and the best person to represent him. So we will move into bids. It is an auction for the cheapest lawyer; this is eBay justice. My experience of the Legal Services Commission at work in these very high cost cases is that the so-called case managers, who are not lawyers and have no experience of the way the criminal courts operate, are hopelessly inadequate in the way that they give or refuse approval to the work which the barrister is to undertake or has undertaken. Perhaps I have said enough to persuade your Lordships that the scheme still under development for the Crown Court is so different from the scheme for the magistrates’ court that it demands a separate Bill. That is the background to my approach to the proposals relating to the magistrates’ courts in this Bill. None of us—I am sure all around the House—has any objection to the re-introduction of a means test in principle; that is, that someone should pay for his legal aid unless he cannot afford to at all. This Government abolished the means test in the first place on the grounds that it cost more to administer than it saved. Having abolished it, the obscenity was discovered that highly paid people, whether company directors or football stars, were claiming legal aid at the public’s expense. We should like to know why it is thought that the new scheme will be cost effective, since it is so structured that the refusal of legal aid by some backroom individual will almost certainly lead to an appeal with additional cost. The noble Baroness said that it is administrative simplicity and that they would set an upper limit based on gross income. The trouble is that that proposed upper limit is £27,500 before tax. I suppose that is slightly above average earnings for an individual, but it means that middle earners will be penalised again. A person who earns £28,000 will have no legal aid under this simple scheme and a person who earns £27,000 gross before tax will have full legal aid with all his costs paid. That seems to me to be nonsensical. My second criticism is that the merits test becomes an administrative and not a judicial function. How can anyone in the Legal Services Commission, at a low level and without any actual experience of the courts and how they work, make a decision about what is and what is not in the interests of justice? No doubt it will be said that under the proposed service level agreement to which the framework document refers, the responsibility for making the decision will be delegated to court staff. If it can be delegated to court staff, why leave the magistrates out of the equation? If the magistrates’ clerk is to make the   decision on where the interests of justice lie, why cannot the magistrates themselves? It is not proved that they are not performing that judicial function of granting legal aid responsibly and well. Are their current decisions on legal aid so perverse that money is being thrown away? That is not proved. We would have no quarrel with the magistrates’ court deciding that legal aid should be granted subject to the question of eligibility and that that eligibility, if in doubt, should be decided by the Legal Services Commission. There is no problem about that. But what is or is not in the interests of justice is a judicial decision. My third criticism is of the appeals process. If the person is refused legal aid and appeals to the court to reconsider that decision, an appeal is not to be allowed on the merits. The magistrates’ court does not consider whether it would have granted legal aid in the circumstances: the framework document makes it absolutely clear that the court will not revisit the decision of the court staff afresh; it can consider only whether the decision is irrational, was not reached fairly or is outside the commission’s powers. Those are the judicial review procedures. Your Lordships will recall that when we were discussing control orders before the general election, we spent much time considering whether control orders should be subject to judicial review or whether the court should have the power to consider decisions on their merits. It looks as though we are going into battle again on that blood-stained ground. Those are substantial criticisms. We know that the purpose of the Bill is to reduce the amount of money paid to lawyers and that, because of that, it will have great popular support, but that is not sufficient for a fair and just system that ensures that the individual can have justice in the magistrates’ courts of this country.