Criminal Defence Service Bill [HL]

My Lords, it is a great privilege to belong, pro hac vice, to this happy band of brothers. I hope that the noble Baroness will not be offended at my including her, but it would be an unhappy band without her. I should like to make one essential submission, which is the reason for my intervention: the provisions of the Bill in regard to the granting of legal aid are a constitutional aberration. They are a constitutional aberration for the simple reason that it is common ground, and on the government view, that a wholly judicial decision on a grant or refusal is to be replaced by an administrative function carried out by court staff, not with a right to appeal—that is a misnomer—but with a right to go for judicial review in the exercise of the court’s supervisory jurisdiction. If the court says that the decision is beyond the powers of the commission, that does not in itself in any way cancel the decision; it merely sends it back to the commission. However, we are here dealing with criminal offences in which the state is bringing proceedings to cause the accused to be punished appropriately for having committed a criminal offence. Obviously, the state has an interest in succeeding in its prosecutions. I should have thought that it was quite wrong, constitutionally, for the state in those circumstances to be in charge of the representation of the accused person. That, being a judicial function, should remain with the judges to decide and should not be handed over to court staff, who will no doubt be directed regarding in what type of case to allow representation and in what not to. The court is seized of the facts of every case and has the benefit of submissions by lawyers. It must be better placed to decide what is or is not, to cite the words of the Act,"““in the interests of justice””," in any particular case. In particular, it is aware of the level of representation of the Crown and the significance of the case both to the public and the defendant. By way of contrast, the commission, an executive agency, has a direct financial interest in the number of grants. It has a budget and a financial target that must be achieved. Inevitably, there is a temptation to use the ““interests of justice”” test as a mechanism for financial control. There is a distinction under Article 6 of the European Convention on Human Rights between criminal and civil cases, which is at present a proper reflection of the court’s control of the grant of representation in criminal matters. It is common ground and it has been so stated in the framework document that the right of refusal of legal aid is a judicial function and that, in future, it will be an administrative function. The justification for that is to save money, but that does not in any way explain what the courts are currently doing wrong and in what   respect they are exceeding a proper approach to what is"““in the interests of justice””." Until that is established, I respectfully submit that that the Government are committing a constitutional aberration and I invite them to think again.