Criminal Defence Service Bill [HL]

My Lords, if only I were capable of programming any Bills in your Lordships’ House. I will certainly bear that in mind in my discussions. I am very clear that noble Lords should not be under the impression that a lack of the regulations before your Lordships’ House in any way is detrimental to your Lordships’ ability to understand precisely the purpose of the Bill and how we shall enact it. It is very important that we have the final consultations that need to take place. The regulations will come forward by affirmative regulation. I heard what the noble Lord, Lord Goodhart, said about other aspects of the regulations that might be by the negative procedure. I am very happy to discuss that whole issue in Committee or before in order to give clarity and comfort about the way that we are taking this forward. In summary, I am clear that we have given your Lordships—certainly for those of us with less than erudite legal minds—a greater explanation of what we seek to do. We will of course make sure that your Lordships have a full debate on the regulations as they come forward. There have been a number of concerns raised by noble Lords on the Crown Court scheme, not least from the noble Lords, Lord Thomas of Gresford and Lord Kingsland, and the noble and learned Lord, Lord Ackner, to ensure that we address this issue properly. The noble Lord, Lord Goodhart, pointed out the question of perverse incentive for those who have the option of going into either court and whether that would be an issue. We are allied to that question. In a sense, we have begun to think about how we might address that. I am very clear that we need to ensure that the magistrates’ scheme is given an opportunity to be in place and to work before we move on to the Crown Court scheme. However, I would argue and will continue to argue throughout the passage of the Bill that in order to ensure that we are able to move forward on the Crown Court scheme, the best way of approaching it is to allow for regulations within the   Bill. We recognise that noble Lords will seek assurances, and will wish to know in greater detail how we would approach it and the process and procedure for bringing it forward, not only to your Lordships’ House but also to those who would be affected in any way. I undertake to do that. But I disagree with the noble Lords, Lord Kingsland and Lord Thomas of Gresford, that we need to have a separate Bill. We need to be sure that we are clear about what we propose to do. I have already indicated to your Lordships that it would not be appropriate simply to transfer the proposed scheme for the magistrates’ court to the Crown Court, for reasons that the legal minds here present will understand far better than I do. The noble Lords, Lord Kingsland and Lord Thomas of Gresford, in a sense, said, ““Well, you have had this policy and this is a bit of a U-turn””. Again, I want to be clear. At least at one level, this is a reversal of policy. Coming at this from a relatively new perspective and looking back on the decisions that were taken during the Access to Justice Act, the decisions taken were right in those circumstances. But it is important that we look and review the decisions to see whether they are still applicable all the time. The scheme that we have devised removes the slow and bureaucratic process that existed at that time. It recognises the circumstances that have changed since then, not least the number of applications for legal aid that could not have been known at that time from those who were then not applying for it. We have devised a system that will make sense. I make no apologies if that change has been made. The noble Lords, Lord Goodhart and Lord Kingsland, also asked whether this would be a cost-saving measure. Indeed, the noble Lord, Lord Goodhart, asked the question, which I know has been around and about, about ring-fencing. I think that it was also raised in the Constitutional Affairs Select Committee. I am not a huge believer in ring-fencing because it does not give flexibility. It is necessary on occasion to ring-fence money. I do not think that we would want to move in that direction. We would want to make sure that the money is available in the pot. As I said in my opening remarks, I am very clear that we are mindful of the way in which money can be distorted by having to be used in a particular direction. Perhaps some of the work that we would like to do for the most vulnerable in our society is not able to be done in the way in which we would currently like. So we will be very mindful of that in looking at how money is spent. However, I should like to give a couple of figures in order to be clear about what we anticipate the scheme to do. We expect that the set-up costs for the transfer of the grant and means test is likely to be about £5 million. The ongoing annual costs are likely to be between £5 million and £9 million per year. We have calculated that the additional costs of assessing means will be offset by the   reduced number of applications. On the basis of information that we have so far, we anticipate a reduction of between 10 and 20 per cent reduction in the volume of applications, which means that the volume will fall from about 650,000 to somewhere in the region of 530,000 to 570,000 applications. It will be cost neutral in terms of the administrative costs. Therefore, the estimated savings on that basis are £35 million, which is a substantial amount of money. I hope that it will be welcomed by noble Lords as money that can be used more effectively within the system. The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, in particular are concerned about interests of justice, the linking of the two tests into one and the role of the Legal Services Commission. I am very clear that there are no issues   around Article 6. As noble Lords will know, the   LSC, which is separate from the DCA as a non-departmental public body, already decides on Article 6 grounds, for example, in mental health tribunals. There is no question that it is an independent body which would work extremely well. As I have indicated, the service level agreement transfers back to court staff who currently do that work the responsibility for doing the work as of now.   I would argue that the review by the court or the review appeal—whichever words most aptly fit the description in your Lordships’ view—allows the court to consider how the facts match the Widgery criteria. Although those criteria are relatively new to me as a non-lawyer, I find them extremely straightforward to understand. Our ambition is very clear. The staff currently doing this, who do an extremely good job, will continue to do it. There would be a basis on which appeal could be made. The Legal Services Commission will take very seriously anything that the courts would have to say. Therefore, this would be done in a suitable way that is very mindful of our obligations under Article 6. So, although I am sure we will debate this at length, I do not accept that there is any real concern about how this would operate, or that the staff, who currently do it exceptionally well, would continue to do so. Noble Lords, particularly the noble Lord, Lord   Goodhart, raised the question of very high cost cases. The noble Lord, Lord Kingsland, who I know is also exercised by this, wanted to know what we were doing about them. From the work we have already done on the individual case contracts, we have achieved savings of some £26.5 million in 2003–04. The savings for the current year are anticipated to be higher than that. We anticipate £35 million for this scheme, which will contribute significantly to the work we are doing. I wanted to say a bit more about what is happening with very high cost cases. The noble Lord, Lord   Kingsland, told me he wanted to raise the subject. Noble Lords will know that my noble and learned friend the Lord Chancellor has set up a review to consider the individual case contract scheme. It reported in May and, because of the negotiations with the professions, changes have been made to the scheme to ensure that it works more effectively. We are discussing with the Bar and other stakeholders what further might be done. All parties agree in principle that existing arrangements for paying ““cracks and guilties””ex post facto need to be changed, and general agreement has been reached on the replacement of the architecture of the new ““cracks and guilties”” scheme. Draft regulations are being shared with the professions at the moment. There is a final area still to be discussed, which is the proposal that very high cost case solicitor advocates should be paid the same preparation rates as counsel, and the Law Society needs time to consider this proposal. No decision has yet been reached, but we are continuing to consider the issues raised by very high cost cases to ensure that suitable systems are in place. The question of competition was raised. Consultation is under way, although I do not have details to give your Lordships at the moment. I will reply properly to the noble Lord, Lord Kingsland, on that, and place a copy of my letter in the Library. This Bill is about tackling what has been seen as a much criticised and well recognised flaw in the legal aid system. It is a common-sense measure that fits well with the process of modernisation of the criminal justice system. It is, in short, a return to the founding principles of legal aid. I thank your Lordships for your contributions to this debate, and invite you to discuss all these issues between now and Committee. I commend the Bill to the House.