Criminal Defence Service Bill [HL]

My Lords, in view of the lengthy number of speakers in this debate I intend to make my remarks quite briefly. In any event, my noble friend Lord Thomas of Gresford has put the case quite fully. However, I have a number of questions to ask and a number of comments to make on the Bill. I accept, as does my noble friend, that there is a serious problem with the expenses of criminal legal aid. However, I have very serious doubts about whether this Bill will achieve any significant reduction. I therefore begin by asking why is it that the Government believe that the Bill will save money, and how much money do they expect it to save? The present regime for granting legal aid in criminal cases was introduced to speed up the proceedings and reduce costs by avoiding the need to apply for legal aid in advance of trials. Do the Government think that we will not, as a result of the Bill, go back to the old system and the problem with delays? If not, why not? The Constitutional Affairs Select Committee in the other place recommended that Parliament should be able to see the draft secondary legislation to be introduced under the Bill, before it goes through Parliament. So far, that has not happened. It is very important that both Houses should have the opportunity to see what is proposed by the Government in draft secondary legislation before the Bill is enacted, but so far we have seen nothing. Do the Government intend to produce any draft secondary legislation, and, if so, at what stage? Continuing on the subject of secondary legislation, the Select Committee on Delegated Powers and Regulatory Reform of your Lordships’ House will have to consider carefully some serious issues: whether this is simply a skeleton Bill to a degree that makes it unacceptable, and whether more regulations in any event should need the affirmative resolution procedure. As I read the Bill, the only regulations that will require the affirmative procedure are those made under new paragraph 2A of Schedule 3 to the Access to Justice Act 1999, which are to be made under Section 1(6). But there are others that are equally important; for example, the regulations to be made under new Section 17A of the Access to Justice Act, which provide the prescribed circumstances in which contribution orders can be made. The Constitutional Affairs Select Committee also said that a proper appeal mechanism was of the highest importance. But the Bill restricts the existing rights of appeal significantly. Under the new regime, in cases of appeals on the merits, the right of appeal and any right of involvement of the court is reduced to an appeal that must merely satisfy the judicial review standards and does not give the court the opportunity of substituting its own decision for that of the Legal Services Commission. In the case of appeals on eligibility, the law is changed by eliminating appeals altogether and replacing them by an administrative review within the Legal Services Commission. Those seem wholly wrong in principle. A proper appeal to the court is essential. It is also wrong as a matter of practice because it may lead to higher costs and delays as more applications will be made for judicial review in the High Court on account of the impossibility of getting a proper review of those decisions at an earlier stage. The introduction of the new regime in the magistrates’ court but not simultaneously in the Crown Court may lead to significant numbers of defendants in ““either way”” cases opting for a Crown Court trial instead of one in the magistrates’ court because of their more favourable position as regards legal aid. That will plainly increase the cost. Do the Government recognise and acknowledge that problem? It is of great importance that there should be an overriding ““interests of justice”” test on both merits and eligibility or the Bill will not satisfy Article 6 of the European Convention on Human Rights. That test should be left to the courts and ““the interests of justice”” should not be defined in regulations as is the obvious intention of the Bill. The substantial increase in criminal costs, which we all acknowledge, is partly due to an increase in prosecutions and also an increase in the number of offences created by law. When will the Government accept the need for ring-fencing between criminal and civil legal aid so that increases caused by the Government’s own legislation do not lead to the cutback of civil legal aid? I believe, frankly, that the Bill will do little, if any, good in reducing the costs of criminal defence. We need to look at other ways of reducing the expense of very high cost cases, which take up such an astonishingly high proportion of the total criminal legal aid budget. I strongly recommend that the Government look at the problems mentioned by my noble friend Lord Thomas of Gresford, and at cutting the costs of very high cost cases by better case management.