My Lords, I shall speak also to the draft Legal Aid (Information about Financial Resources) Regulations 2013 and the draft Civil Legal Aid (Costs) Regulations 2013.
The draft Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, which are being made under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, replace relevant regulations in the Criminal Defence Service (General) (No.2) Regulations 2001, made under the Access to Justice Act 1999.
The regulations mirror the Access to Justice Act regulations in effect, although there are differences in terminology and structure. For example, the regulations refer to making a determination that an individual qualifies for legal aid, rather than to granting a representation order following a decision that an individual qualifies. This change of terminology is made only to reflect amended wording in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which I will refer to from here on as LASPO.
Operational practices will not need to be altered in any way as a result of the regulations. The key change is that under the Access to Justice Act 1999, the default position is that a court makes a decision that an individual qualifies for legal aid, unless specified otherwise in regulations. However, due to the roll-out of means testing in the magistrates’ court and subsequently the Crown Court, the circumstances in which a court may grant legal aid have been gradually reduced. LASPO reflects this shift, and the default position is that it is for the director of legal aid casework to make a decision that an individual qualifies for legal aid, unless otherwise stated in regulations. The regulations set out the limited circumstances in which a court can make a decision that an individual qualifies for legal aid. That merely codifies current practice.
The regulations also limit the circumstances in which an individual can select a representative of their choice in criminal proceedings, and set out the specified circumstances in which a court can permit an individual to select enhanced representation. The regulations specify the circumstances where the court may permit an individual to select a different provider to the provider selected by a co-defendant.
In relation to advocates, the regulations generally provide that individuals may not select an advocate in proceedings before a magistrates’ court, and set out circumstances where the court may permit an individual to select an advocate in the magistrates’ court. The regulations also provide that individuals may select only a provider and a single junior advocate in proceedings in the Crown Court and above, and set out circumstances where the court may permit an individual to select a Queen’s Counsel or more than one advocate. The provisions have the same effect as the current provisions in relation to choice of representative under the Access to Justice Act.
The draft Legal Aid (Information about Financial Resources) Regulations 2013 make provision in relation to requests for information by the director of legal aid casework to the Department for Work and Pensions, Her Majesty’s Revenue and Customs and relevant Northern Ireland departments to facilitate decisions about an individual’s financial resources for the purpose of legal aid available under Part 1 of LASPO. This could include, for example, a determination that an individual is financially eligible for legal aid, or is liable to make a contribution toward the cost of their representation when in receipt of legal aid.
The draft regulations replace regulations in relation to criminal legal aid under the Access to Justice Act 1999 but they will also extend to civil legal aid, so that information-sharing in relation to both criminal and civil legal aid are on the same statutory basis. This will
allow the director, as the authority responsible for granting legal aid, to properly verify information provided by an applicant for legal aid about their financial status.
The regulations provide an information gateway so that a person making a decision on the financial eligibility of someone who is applying for legal aid or is in receipt of it can request certain information to confirm their benefit status with the Department for Work and Pensions or to confirm details of an individual’s employment or whether they are carrying on a business, trade or profession with Her Majesty’s Revenue and Customs or the equivalent departments in Northern Ireland.
Efficient and secure data-sharing between the DWP, HMRC, the relevant Northern Ireland department and the Legal Aid Agency will safeguard taxpayers’ money by limiting the opportunity for fraud and dishonesty and improving the administrative efficiency of the financial eligibility tests for legal aid.
I stress that these arrangements will make no substantial difference to defendants, solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on defendants or solicitors. Nothing within the new legislative framework dilutes the Government’s obligation to protect an individual’s personal information and maintain confidentiality. Indeed, the primary legislation specifically makes it a criminal offence to disclose the information for any purpose other than to facilitate decisions about an individual’s financial resources for the purposes of legal aid.
Lastly, the draft Civil Legal Aid (Costs) Regulations 2013 make provision about costs orders in civil proceedings in favour of or against a legally aided party and, in certain circumstances, against the Lord Chancellor. They substantially reproduce provisions that currently exist in regulations made under Section 11 of the Access to Justice Act 1999.
These draft regulations bring together the rules on costs into a single set of regulations. The existing rules on costs appear in both the Community Legal Service (Cost Protection) Regulations 2000 and the Community Legal Service (Costs) Regulations 2000. Provisions relating to the statutory charge, which currently appear in the Community Legal Service (Costs) Regulations 2000, will be brought forward separately.
Section 26(1) of LASPO sets out the general principle that costs ordered against a legally aided party to civil proceedings must be reasonable, having regard to all the circumstances including the financial resources and conduct of the parties to the proceedings. This is known as “cost protection” and is a feature of the existing civil legal aid system. It caps the amount of money that a legally aided party may be ordered to pay if they lose their case. The intention of this is to ensure that they are not deterred from resolving their issues through legal action for fear of being personally liable for unaffordably high costs.
The definition of family proceedings in these regulations has been amended to reflect the treatment of family proceedings in the LASPO Act. Under these regulations more types of family cases are subject to the exclusion from cost protection, although those that have been
added are very similar to the existing list. We have maintained the position in the current regulations whereby cost protection applies to applications for domestic violence protection orders and public law children cases.
Part 2 of the draft regulations provides that cost protection does not apply to lower forms of civil legal services. Cost protection applies in relation to forms of service that permit the legally aided party to be represented in court proceedings because such a party will have satisfied a more stringent merits test than for lower forms of assistance.
Part 3 of the draft regulations sets out the rules governing costs orders against a legally aided party as well as the grounds on which a costs order might also be made against the Lord Chancellor where he has provided civil legal aid to a party to proceedings.
The draft regulations provide that in limited circumstances a court can order the Lord Chancellor to pay to the non-legally aided party the whole or part of the costs incurred by that party in the proceedings, other than the costs which the legally aided party is required to pay. The draft regulations also make provision about the assessment of resources and procedures in relation to costs orders against the legally aided party and the Lord Chancellor. The final part of the draft regulations sets out the principles to be applied when a costs order or a costs agreement is made in favour of a legally aided party.
Subject to the changes that I have just outlined and some amendments to structure and terminology, these draft regulations substantially replicate the effect of the existing regulations made under the Access to Justice Act 1999. I therefore commend these draft regulations to the Committee and beg to move.
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