Criminal Defence Service Bill [HL]

My Lords, I have barely had time to wipe away the tears shed on hearing the submissions made on behalf of the Criminal Bar by the noble Lord, Lord Thomas of Gresford. I wish to put a number of questions to the noble Baroness. First of all, I should like to make one or two constitutional observations. Why does the Bill refer to the Secretary of State for Constitutional Affairs and not the Lord Chancellor? Schedule 3 to the Access to Justice Act 1999, like the rest of the Act, is cast in terms of responsibilities and powers exercised by the Lord Chancellor. Why do we suddenly see, in a Bill that seeks to substitute a new regime for Schedule 3, this figure of the Secretary of State for Constitutional Affairs loom into view? The noble and learned Lord the Lord Chancellor spent much of the previous Session prevaricating about whether he should preserve his own office. In the end, the noble and learned Lord decided to do so. Why, immediately after that decision, do we find in legislation a reversion to the Secretary of State? I endorse everything that the noble Lords, Lord   Thomas of Gresford and Lord Goodhart, said about the importance of seeing the regulations in draft form. The Bill has been in preparation for some time, and the Government must have done serious, indeed comprehensive, thinking about what the regulations should contain. It is highly desirable, therefore, that in Committee, in two weeks’ time, we have a clear idea of the main thrust of the regulations, if not a detailed draft with every ““i”” dotted and ““t”” crossed. I also support what the noble Lord, Lord Thomas of Gresford, said about the Crown Court. I look with great wariness on that aspect of the Bill which seeks to translate the magistrates’ court regime in some modified form to the Crown Court simply by way of delegated legislation. As the noble Lord rightly observed, your Lordships’ House will not have the opportunity to amend such an item of delegated legislation. The noble Lord explained most cogently why the considerations in the Crown Court are different from those in the magistrates’ court. I hope that the Government will think very carefully before insisting on that aspect of the Bill. On the substance of the Bill, in principle, we, the Opposition, support the idea that some contribution should be made, by those capable of making it, to costs in the magistrates’ court. That was the situation before the Access to Justice Act. It was changed, from 2001. And now, after four years’ experience, the Government wish to change back again. The temptation is too great not to use the well-known military expression, ““order, counter-order, disorder””, because that is what it looks to those of us who sit on the other side of the House. The system was changed because the Government thought that the combination of cost and bureaucracy and delay was such that the cost savings at the magistrates’ court level was very marginal. That was a perfectly understandable conclusion to reach. Clearly something has happened in the last four years to make the Government change their mind. Can the Government assure us that the savings that will be made will be real? Have they done a savings estimate? If they have, can they let their Lordships know what they think, generally speaking, will be the amount of money that will be saved by these measures? As the noble and learned Lord, Lord Ackner, said, we are facing a completely changed regime; but irrespective of the merits of the new regime, judicially, and in the context of Article 6 of the European Convention, is it actually going to save money at all? I hazard that however much money it will save, it will save nothing like the amount of money that high   cost cases cost the criminal legal aid system. The figures are quite well known but it is well worth reminding your Lordships what they are. The half dozen most expensive criminal legal aid cases in 2003 amounted to no less than 25 per cent of the total criminal legal aid budget. One per cent of the highest cost cases amount to 40 per cent of the total criminal legal aid budget. Whatever savings are made by these changes in the magistrates’ court, they will be dwarfed by these figures. Why are the Government not coming to your Lordships’ House with proposals to deal with high cost criminal cases? This is the kernel of the real problem of criminal aid; the problem that is having serious implications for the amount of money available for civil legal aid. What proposals do the Government have? Will they come at an early stage to your Lordships with real proposals that will bite, to reduce these high cost cases? As the noble Lord, Lord   Thomas of Gresford, said, it is not simply a matter of trimming defence costs. Much of the problem lies with the way the Crown Prosecution Service deals with these cases. Any proposals that the Government will make will require a very serious look at the whole way in which the Crown Prosecution Service approaches prosecution. I turn to one or two points of detail. The noble and learned Lord, Lord Ackner, has in my respectful submission made some very important criticisms of the new system. The noble and learned Lord rightly says that what will happen under the Bill is a shift from a judicial decision, assessing what is or is not in the interests of justice in relation to representation, to an administrative decision. The administrative decision is rather complicated, because although, in principle, it devolves upon the Legal Services Commission, there is a service level agreement which delegates that decision back to the court administrative staff. There is an appeal system but to describe it as such is a misnomer. It is a review system, not an appeal system. The court may review a decision by the Legal Services Commission; but the consequence of that is that the court itself does not make a new decision. It simply refers the faulty decision back to the Legal Services Commission to make a new decision. I wonder whether that is consistent with the Article 6 interest(s) of justice test. I hope that the noble Baroness, Lady Ashton of Upholland, will address that point head on when she replies; or if she feels unable to do so today, then at a later stage in Committee. This move is particularly surprising because last year—or was it the year before—when we dealt with   the Government’s latest asylum legislation of reducing the two-tier tribunal system to one tier, the Government moved, in the interests of saving money, in the opposite direction. They decided to remove the responsibility for rewarding legal aid from the Legal Services Commission and give it to the court. Perhaps the noble Baroness would be good enough to explain why the interests of saving money were best served by giving the court responsibility in the asylum system; but appear to be best served by giving the Legal Services Commission responsibility when it comes to magistrates’ courts. I must confess to feeling somewhat bewildered. Although this matter has not been addressed by any earlier speakers, I wonder if the noble Baroness could also tell us something about the proposals for price competition and tendering, which I understand is to be an ingredient of this new system. I know that the Society of Asian Lawyers has expressed some concern about their discriminatory impact and, indeed, possible conflict with Article 6 of the European Convention on Human Rights. The noble Baroness has no doubt talked to the Society and has reached a conclusive view on this matter and I would be most grateful if she could let us know what the Government’s reaction is. In conclusion I say again, so that there should be no doubt, in principle the Opposition support the idea of contributions but there is much in the detail of this Bill which gives us cause for concern.