Motion to Approve
In moving the regulations, with the leave of the House, I shall also speak to the draft Criminal Defence Service (Representation Orders) (Amendment) Regulations 2009 and the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2009.
These three sets of regulations are laid by the Lord Chancellor under provisions of the Access to Justice Act 1999 and are subject to the affirmative resolution procedure. The instruments are being laid to extend means-testing for legal aid to the Crown Court. There are four other sets of regulations, all subject to the negative resolution procedure, relating to financial eligibility; interests of justice provisions; amendments that provide for the right of the Legal Services Commission to grant representation in Crown Court proceedings; and, lastly, those that limit the power of the court to grant representation.
The draft contribution orders regulations are the main instrument. They provide the framework within which the new scheme will operate. The draft representation orders amendment regulations provide that, in almost all cases, responsibility for granting representation orders in criminal proceedings in the Crown Court will move from the court to the Legal Services Commission. The draft representation orders appeals etc. regulations provide for consequential amendments to the process for appealing against refusals to grant a representation order.
The regulations underpin the new scheme that will be introduced in January 2010 at five early-adopter courts. The courts involved are Bradford, Norwich, Preston, Blackfriars and Swansea Crown Courts. The scheme applies to trials, committals for sentence and appeals to the Crown Court. It will then be extended to the rest of England and Wales between April and June 2010. The purpose of the early-adopter phase will be to test the processes that have been developed before national rollout occurs and to make any changes necessary.
The introduction of means-testing in the Crown Court is a central part of our policy to target legal aid at those who need it most and to secure best value for money for the taxpayer. That has been a stated commitment of the Government since 2005.
There are two major questions to pose to the House. First, why should not a convicted defendant have to pay some or all of his or her costs if he or she can afford to? The second, related, question is: why should the state pay precious legal aid funds to a convicted defendant who can afford to pay and thus deprive others who are in need of legal aid? The means-testing scheme that has been in operation in the magistrates’ courts since October 2006 has, to date, delivered savings to the Legal Aid Fund of more than £80 million. Our forecast of savings in the Crown Court is more than £50 million a year by 2013-14.
The Government believe that the scheme will fairly and effectively target those convicted defendants who can afford to contribute towards part or all of their legal aid costs because of their income and/or capital asset position. Defendants who have made an income contribution towards their costs during the life of their case and are then acquitted will have their contributions returned with interest.
The proposed scheme focuses legal aid support on the majority of Crown Court defendants, who genuinely cannot afford to contribute towards their legal aid costs. We estimate that about three out of four defendants will continue to receive representation for free. Those who are under 18 and those in receipt of what are described as passporting benefits, such as income support, will be exempt from making any contribution at all. The scheme will also create a stake for those defendants who are asked to pay a fixed number of monthly contributions—assessed according to their means—in ensuring the timely progression and disposal of their case.
The income threshold in the Crown Court will be the same as that currently operating in the magistrates’ court scheme. In addition, we propose a capital asset threshold of £30,000. Those convicted defendants who have not covered the costs of their cases from income contributions alone will have their capital assets assessed to determine whether they should make a further contribution. As I said, only assets, which include equity in property in excess of the £30,000 threshold, will be taken into account when determining whether a contribution from capital is required.
The contribution order regulations provide that every defendant appearing for trial or committal for sentence before the Crown Court will be granted a representation order. The Crown Court means-assessment scheme builds on that which exists in the magistrates’ courts and incorporates elements of it. Where supporting evidence is required to enable a fair and proper assessment of means to take place, defendants will have up to two weeks from the submission of their application form for legal aid in which to furnish the relevant information. All defendants remanded in custody by the court will be able initially to self-certify their means by completing and signing a statement of truth.
These provisions are designed to ensure that there is the minimum of delay in a defendant obtaining representation and the minimum of delay in the representative beginning work on a defendant’s case. This is particularly important in indictable-only cases, where the role of the magistrates’ court is restricted to a single hearing before the case moves to the Crown Court.
The scheme sets a generous threshold of disposable income. We are clear that defendants, and particularly their partners and dependants, should not be disadvantaged unduly by a requirement to make contributions, whether from income or capital. The threshold that we have set, and the allowances that will be made before a defendant is required to contribute, make us confident that only those genuinely able to pay will be required to do so. I reiterate that the requirement to pay will, we estimate, affect only around one in four defendants.
Concern was expressed in the recent consultation exercise on these draft regulations about aggregation of income and assets and enforcement for non-payment of a contribution order. The Government consider that the fairest way of judging whether a contribution should be payable is to aggregate income and assets at the household level. This is in line with current civil schemes and reflects the practice when other means-tested benefits are being applied for. However, aggregation will not take place where the partner has a contrary interest in the case, by being, for example, the victim or a witness for the prosecution at trial. The draft regulations deliberately do not specify what a contrary interest might be, so that such issues can be dealt with on the facts of each case. A hardship procedure will act as an additional safeguard for those who believe that they are genuinely unable to pay the contribution assessed because, for example, they have other, exceptional financial commitments.
When it comes to the collection and enforcement of a contribution order, the agency charged with maintaining the scheme will provide a supportive environment for defendants to comply. I have to say that there may have been some misunderstanding of the Government’s position when it comes to enforcement. Any enforcement action will be taken against the defendant alone and not against partners or dependants. The action itself might take a variety of forms—for example, attachment of earnings orders, distress warrants, third-party debt orders pre-conviction or, post-conviction, charging orders on property and, in due course, seizure of motor vehicles.
I wish to make it abundantly clear that the option of a forced sale of a home will be an exceptional last resort and considered only where there has been a persistent and wilful refusal by a defendant to comply with the terms of a contribution order. In addition, any enforcement action will have to be the subject of an application to a judge. The Government are confident that this judicial safeguard will protect the interests of those who might be at risk from a defendant’s failure to comply with an order. Any decision to take enforcement action will rest with the Legal Services Commission, after due consideration, and not with the enforcement agency undertaking the administrative elements of the scheme. The Government have decided that all enforcement options should be open to the agency to seek, because it believes that it is not right that those who have been fairly assessed as having the means to contribute towards the costs of their case should seek to evade that responsibility.
I have dwelt on some of the more important aspects of the new Crown Court contribution order regime and now turn briefly to the two other draft sets of regulations that require affirmative resolution. The first are the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations. As I said, these amend regulations that had provided for an appeals process where an individual had been refused a representation order on the ground that the interests of justice did not require representation.
One of the key elements of the new Crown Court scheme is that all defendants committed, sent or transferred for trial will pass the interests of justice test, as will those committed for sentence from the magistrates’ court. The Government recognise that the types of case heard in the Crown Court are more serious on the whole than those heard in the magistrates’ court. For this reason, we believe it only right that an automatic grant of representation should be made for defendants appearing before the Crown Court. This is provided for in the new interests of justice regulations, which are the subject of negative resolution. The draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations limit appeals against a refusal to grant a representation order to appeals to the Crown Court, which will continue to be subject to an interests of justice test.
Finally, I turn to the draft Criminal Defence Service (Representation Orders) (Amendment) Regulations. These regulations provide that the Legal Services Commission may grant the right to publicly funded representation in criminal proceedings in the Crown Court. In practice, the Legal Services Commission will delegate this function to staff in the magistrates’ courts, who are by now very experienced in dealing with legal aid applications under a means-testing regime.
The introduction of a means-testing scheme in the Crown Court is designed to enable a sustainable future for the Legal Aid Fund, to ensure that those who are guilty and can afford to contribute towards the costs of their case do so and to underpin our commitment that those most in need of access to legal advice and assistance, whether in the criminal or the civil field, continue to receive it. I beg to move.
My Lords, we have quite a lot to absorb here, but I thank the Minister for explaining what the Government are seeking to do with these rather complicated regulations. He has presented them as an efficiency measure designed to ease the strain on the legal aid budget. The Criminal Defence Service uses criminal legal aid to help people who are under investigation or facing criminal charges by ensuring that those accused of crimes have access to legal advice and representation. From my time on the bench, I am very aware that legal aid has been one of the fastest growing areas of public sector spending over the past 25 years, up from £536 million in 1982 in today’s prices to around £2.1 billion today. Of that, criminal legal aid accounts for around £1.2 billion.
The Minister has argued that this rate of increase in spending is not sustainable. Therefore, in conjunction with the Legal Services Commission, the body responsible for administering legal aid, the Government are looking for savings where they can. That is understandable. No matter how reluctant they are to admit it, they must find “efficiencies” across every area of public spending. However, we are dealing with a very sensitive area, as people’s liberty is at stake. The savings the noble Lord hopes to make must not be allowed to trump the interests of justice.
As the Minister has explained, in October 2006 a new means-testing scheme for eligibility for criminal legal aid was introduced in the magistrates’ court. The orders now before your Lordships will extend the means testing already in place in the magistrates’ court to the Crown Court. I cannot complain about the principle of proposing that defendants who have been convicted in the Crown Court should pay a contribution towards their legal representation if they can afford it, but I have a number of concerns with what the Government are actually doing.
We are concerned by some of the consequences of these regulations in that there will be a large impact on vulnerable defendants. We fear that if the Government push ahead with these changes we will see a large number of defendants who will just miss out on criminal legal aid in Crown Court cases. This will lead to a situation whereby criminal legal aid will be available only for the very wealthy or the very poor. The way that defendants’ wealth is to be assessed makes us worry that if faced with the seizure of their assets, perhaps even their home, defendants will run the risk of forgoing representation altogether. Can the Minister inform the House whether the number of unrepresented defendants in the magistrates’ court has risen since the introduction of means testing in such courts?
The Law Society has voiced its continued concerns, which I share, about the assessments of partners’ incomes and capital. Unless the defendant’s partner has a contrary interest in the proceedings, his or her resources are to be assessed for the purposes of paying legal aid too. However, there are doubts over whether even partners with a contrary interest are sufficiently protected by the regulations. What about a situation where a home inhabited by the defendant and partner may be entirely owned by the defendant and can therefore be included in the assessment of means? A potential effect of these regulations would be to give a defendant in a domestic violence case the power to threaten the complainant—in other words, his or her partner—with homelessness if they continue with the proceedings. Where the family home is entirely owned by the defendant, the regulations allow for the sale of the home to be forced in order to pay for the proceedings, so the victim of domestic violence could thus find themselves homeless if their partner is found guilty. These are serious concerns and I hope the Minister will address them. I cannot believe that such an outcome would be considered an appropriate application of the policy. However, I cannot see a protection against it spelt out in the regulations.
The noble Lord said that the Government have made a generous calculation of a defendant’s disposable income. We are told that only in cases where the defendant’s disposable income exceeds £3,398 will they be liable to pay a pre-conviction contribution from their income. Should we see a rise in the number of unrepresented defendants appearing in the Crown Court—I ask the Minister to confirm that these numbers will be monitored—will that income threshold be raised? I was concerned about whether someone found innocent and not guilty of an offence would have the pre-paid amount paid back, and he has assured me on that matter.
The worry we have about the Government’s means-testing agenda is that it will deny access to justice for defendants and will not save a considerable amount of money. As I said earlier, the legal aid budget has swollen to £2.1 billion and the criminal legal aid budget is £1.2 billion. How much will these regulations save? The Government are trying to save money at the margins when they should be getting a grip of the high-cost cases—terrorism trials and the like—which comprise only about 1 per cent of all criminal cases but swallow nearly half—49 per cent—of the legal aid. How much does the Ministry of Justice expect to spend on these high-cost cases next year? The Government ought to be looking at legitimate ways of trimming the budget in such cases—the cost of expert witnesses, for example, and better case management. Until they are prepared to do that, we shall see more regulations like these, which may be well intended but risk harming access to justice.
My Lords, the love fest of yesterday is, I am afraid, over. We on these Benches support the principle that convicted criminals should pay for their defence when they can. However, in the past that has turned out to be a purely theoretical principle. Attempts have been made before to introduce means-testing of the costs of defence, but they failed because the cost of administering these schemes exceeded such benefits as might accrue from recovering the money. Consequently, some years ago, it was decided that it was cheaper to give everyone legal aid rather than to go through this bureaucratic procedure. If, as Mr Vince Cable points out, bankers can avoid their 50 per cent extra tax overnight, so sophisticated criminals will be able to avoid this scheme if they have to pay. It has holes in it.
The problem is outlined in the Government’s supplementary impact assessment. Page 1 of the financial profiling of Crown Court defendants sets out the difficulties:
“The Criminal Justice System does not gather any information about the financial or domestic characteristics of Crown Court defendants. The demographic information about defendants that the Criminal Justice System collects is very limited. The best information that we have about defendants is derived from CREST … the computer system that supports the progression of cases through the Crown Court. The system records case level and defendant level information about the proceedings, but the only demographic data that CREST records about each defendant is their age, sex and post code. Other detailed financial and demographic information is not collected, creating an “information gap” … This paper describes how Ministry of Justice Operational Researchers have attempted to fill this “information gap” by imputing a socio-economic profile of Crown Court defendants”.
It then identifies the sources.
The paper was put for academic peer review. Professor Martin Chalkley of the University of Dundee, says that it is,
“a carefully written and well-explained paper”,
and that the overall methodology has been “appropriately chosen and executed”, but he has significant problems with the seeking out of alternative data sources and,
“refinements or extensions of the bootstrapping techniques”.
I need not explain to the Minister what bootstrapping techniques are.
His comments are followed by those of Professor Ian Walker of Lancaster University, on page 40 of the report, who points that the populations are different when you try to match income data from the family resources survey to CREST. He states that,
“defendants are NOT a random sample of the population even controlling for sex, age and postcode … There is a ‘selection’ problem”.
He goes on to describe the difficulties there and sets out a whole series of worries about the accuracy of the report.
The third academic who looked at the report, Professor Lanot of Keele University, also said that he was not convinced by the bootstrapping procedure. He gives a series of criticisms about the methodology.
Where the Government are guessing income levels of defendants and basing their policy decisions on a guess, one would think that it would have been wise to introduce the scheme gradually. However, no pilots for Crown Court means-testing have been carried out. As the Minister said, this new scheme will be rolled out in five courts in January of next year and then to the rest of the country within three months, in April to June 2010. The Government have claimed that the operation of the scheme,
“will be evaluated based on the initial roll-out”.
They believe that they will be able to see within three months whether the means-testing is accurate, whether any further rollout is desirable or necessary and whether their guesses are right. This is a guesstimate: the impact assessment has no doubt been done as professionally as possible, but great reservations are expressed about it.
What problems arise? First, as the noble Baroness has pointed out, the thresholds used in means-testing are extremely and unacceptably low—a disposable income of £3,398, not simply of the defendant himself but taking into account the income of his partner and any support that he might have from relatives or friends who live in the same household or support it. That is an unacceptably low threshold, which will apply to a large number of people. Then there is the question of the capital involved; £30,000 is the threshold for capital. What the report fails to take into account from a practical point of view is that, if a convicted defendant does have any money, he is likely to have it seized from him under the Proceeds of Crime Act—a matter that we discussed yesterday. If he is assessed at the beginning of the proceedings, just after he has been arrested, what account can possibly be taken in a Crown Court trial if he does not get bail and loses his job and if that causes severe problems to his partner and if, at the end of the day, when the case is completed, any capital that he or she may have is removed through the Proceeds of Crime Act? What consideration has been given to those practical points?
My first major point is that it is quite wrong to make the assessment of a person just as he has been arrested. It is wrong practically and in principle. He is presumed to be innocent until he has been proved guilty; at that point, when he has been proved to be guilty, and in the light of the circumstances of that time, as well as those of his partner and his home and whether applications have been made under the Proceeds of Crime Act to take whatever assets he has, it would be sensible to carry out a means test to determine if and whether he should produce any contribution to his defence.
There is a further issue in that regard. While the defendant is in prison or on bail, he is subject to all sorts of other pressures that cannot be foreseen by a means test before the trial procedures begin. Unless there is built into the system the possibility of reassessment, which means more cost and more bureaucratic work, he is under considerable difficulty.
I turn to other points of concern. The partner whose income is taken into account may have children and those children may suffer as a result of a conviction and any sentence that is passed or any order that is made. The noble Baroness referred to the question of defendants who are unrepresented. The Minister will know from his own experience just how difficult it is for a judge conducting a trial at which the defendant is unrepresented. If he chooses not to incur the expense that would be involved in having legal representation, the trial would be prolonged, made difficult and would cost more. That is a matter that does not appear anywhere in the impact assessment—the cost of implementing a policy that will include the additional costs of court proceedings.
So when one sees that the impact assessment claims that it will deliver gross savings of £52.4 million per annum—it is as exact as that—one has to take that figure with a pinch of salt. My second main question is: when will this be reviewed? When will rational consideration be given to the effects of the scheme and to how much money has actually been saved? The initial set-up costs are estimated at £12.2 million and the ongoing costs are at £13.5 million per annum—presumably those can be calculated a bit better—but the gap between the costs of running the scheme and what is recovered may simply be so narrow as to make the whole thing unworkable and unnecessary, as has happened on a previous occasion.
Then there is the calculation of debts. It often happens that a defendant has large debts, possibly overdrafts at the bank but much more likely credit card debts, that have to be serviced. The impact assessment has not seriously looked at that, but it says that 40 per cent to 50 per cent of households in the defendant population are likely to be in debt. On one hand you have the bureaucratic costs of running the scheme; on the other, you have the possible additional costs of court proceedings through underrepresentation; thirdly, you have the social costs that arise from the fact that debts will not be paid and partners and children will all be in a difficult position. I hope that the Minister will give us some assurances that, when the scheme goes through, it will be subject to regular monitoring and reports of the results of that monitoring and whether the guesstimates that appear in the impact assessment have proved to be true.
My Lords, I am grateful to the noble Baroness and the noble Lord for their contributions and helpful questions. It is right, with a new scheme such as this, that questions should be asked of it. The answer is that we will know the result only once the scheme has been tried. I can say that the early-adopter phase will be used to test the processes and I assure the House that, for obvious reasons, we will want to continue closely to monitor the impact of these pretty fundamental changes. Towards the end of next year a full review will take place of how this has worked out.
When I thank the noble Lord and the noble Baroness, though, it is not just for the comments that they have made but because they expressed support in principle for the idea that those who are convicted of offences in the Crown Court and who can afford to pay should have to pay some part, if not all, of their costs, so that the precious legal fund that the noble Baroness talked about can be spent on those who really need the help that it provides.
I shall try to deal with some of the important questions that have been asked. The noble Lord, Lord Thomas of Gresford, rightly pointed out that the previous experience in this field has not been entirely happy, to say the least. One of the reasons for that is that the costs rather overwhelmed the amount of money that came in. We have been very conscious indeed in creating this new scheme to try to make sure that that does not happen. Of course, there will be start-up costs. We know that there will always be some cost in running this, but we are as sure as we can be at this stage—before the early adopters and before the scheme comes into force—that this is a better scheme and better planned. It also has more chance of satisfying the principle that we all agree with, which is that convicted defendants should, if they possibly can, pay for their criminal trials. That is in the same way as happens now in the magistrates’ courts, which saves the Legal Aid Fund a considerable amount of money.
The noble Baroness made some interesting points about the HCCs; perhaps I may come to those at the end. Both the noble Lord and the noble Baroness asked about the number of unrepresented defendants and whether that has risen in the magistrates’ court since the new scheme came in some years ago. I do not have the figures, but I will of course write to them. However, defendants appear unrepresented for a number of reasons and perhaps I may say a word or two about that important point. We believe that introducing the new scheme will not have an unduly adverse effect on the number of unrepresented defendants, but it is something that we shall be looking at closely.
It is perhaps worth noting that under the old Crown Court means-testing scheme, abolished in 2001 when the threshold for income contributions was lower than we now propose, only 0.3 per cent of defendants appeared unrepresented. Current figures from Her Majesty’s Courts Service suggest that about 0.05 per cent of defendants appearing before the Crown Court represent themselves, equating to a figure of about 45 defendants out of a total defendant population of some 90,000. As I say, defendants appear unrepresented for a number of reasons, and we will use the early adopter phase to test out our belief that the introduction of means-testing will not lead to a significantly greater number.
The noble Baroness asked how much would be saved, and the noble Lord, Lord Thomas, gave the estimate—and it is, of course, an estimate. We think that £50 million per year is a reasonable estimate. Perhaps I might pray in aid that we thought when the magistrates’ court scheme came in that we would by now be saving about £80 million per year, which is about the figure that we are presently saving. We think that that £50 million is a cautious figure. The noble Baroness asked about the costs of expert witnesses. We are looking very hard indeed at those costs, as part of the quite controversial consultation paper which we put out in August. We agree that the costs of experts across the field are too high and take up too much of a finite budget. We have set out the options in that consultation paper.
The noble Lord asked about the modelling scheme. We believe that that is based on a wide variety of surveys undertaken over a considerable period and that those data sources are fairly comprehensive and reliable. The same modelling was used to develop the magistrates’ court means-testing scheme. I must straightaway put right a mistake that I have made; I am grateful to those advising me, as the savings in the magistrates’ court scheme have not been £80 million per year as I said, but £80 million in total since it began. That £80 million total is in the three years that the magistrates’ court scheme has been in operation. I am sorry to have misled the House, even if it was only temporarily.
Taking that figure, it means that the savings have been rather less than £30 million a year for the very many more defendants who appear in the magistrates’ courts than appear in the Crown Court. If the savings are to be on that sort of level in the Crown Court, are we not getting very close to the estimated costs?
The noble Lord will know—and I certainly know from experience—that costs in the Crown Court are rather higher than costs in the magistrates’ court by a very large multiplier. Indeed, if one looked at the cost of legal aid in the magistrates’ court compared to the Crown Court, one would see that the Crown Court took up a huge amount of criminal legal aid costs, so it is not a direct comparison. Let me not try to rewrite history. The early days of the magistrates’ court scheme did not work particularly satisfactorily. Changes had to be made. It is now up and running well. Those are the total savings at this time.
I was asked about the impact on vulnerable defendants. Enforcement action will be taken only against the defendant and each case will be treated on its merits. Proper safeguards exist for vulnerable people. The noble Lord, Lord Thomas, made a point about it being more sensible to assess on conviction. Our experience—and, I think, that of the courts generally—is that recovery from convicted defendants has been administratively cumbersome and produced very few savings for the fund. That has been a disappointment, and so we feel that this new system is appropriate.
My Lords, I am sorry to interrupt again. Does the Minister accept that acquittals are, as a percentage, much larger in the Crown Court? Does he also accept that the proposed scheme means that assessment and means testing have to take place at the beginning, will possibly have to be reassessed in the light of circumstances, and that the bureaucracy then has to pay back all the money that has been recovered? There is a potential great waste of money in 40 per cent of cases.
I do not believe that it is as many as 40 per cent of those who appear in the Crown Court, either for plea or for trial. We are talking about pleas and committals for sentence where a guilty plea has already been entered. It is a good deal less than 40 per cent. All these matters have been carefully considered in drawing up the scheme.
I turn now to thresholds, on which the noble Baroness and the noble Lord made interesting points. Thresholds take account of partners, dependants and all relevant outgoings. It is disposable income that counts. We believe that the calculation is generous. It incorporates a cost of living allowance that is weighted to reflect the defendant’s family circumstances and number of dependants. The allowance, which is based on the categories of expenditure covered by the well-known expenditure and food survey, includes items such as food, non-alcoholic drink, utility bills, clothing, footwear, health, education and transport. In addition, the test takes into account a defendant’s actual costs for income tax, national insurance, council tax, rent and mortgage payments, childcare costs and maintenance payments. Having made these deductions, it is only in those cases where the defendant’s disposable income exceeds £3,398 a year that they will be liable to pay any contribution from their income.
The income threshold level and the range of allowances that we make before requiring a defendant to contribute is more generous than those recommended in a report by the Joseph Rowntree Foundation on minimum income standards in Britain. We are criticised by the Law Society for not making as generous an allowance for very young children as the Rowntree report proposes, but we make a more generous allowance for adult members of the family and believe that it represents a fairer deal for the defendant, their partner and dependants.
If defendants are assessed as being able to make a contribution from income, they will have to make six monthly payments. If they pay on or before the due date each month, they will have to make only five monthly payments. That aspect of the scheme will ensure that defendants do not overpay significantly from income. Any overpayment will be refunded at the conclusion of the case, with interest. There is also a hardship route that will act as an additional safeguard for those defendants who believe that they genuinely cannot afford to meet the costs of their income contribution.
I was pleased to hear the noble Baroness refer to high-cost cases. I hope very much that her comments represented the view of her party—I am sure that is the case—because this is a very important consideration. She said that the total amount spent on legal aid was £2.1 billion, with £1.2 billion being spent on criminal legal aid and the balance on civil legal aid, of which a large amount is family legal aid. Very high-cost cases are widely considered to take up too much of the Legal Aid Fund. Just over £100 million per year is taken up by very high-cost cases, which are defined as cases lasting more than 40 days, those estimated to last more than 40 days, or those estimated to last more than 25 days with a certain number of pages. We have just put out a consultation paper on very high-cost cases. One of its suggestions—there are a number of possible suggestions—is that cases should not be considered very high-cost cases until they reach 60 days plus, and that other cases should be paid for by graduated fee, as happens at present with Crown Court defence cases lasting fewer than 40 days. Savings would be made if that system were adopted. Importantly, those savings could go towards ensuring that junior members of the Bar do not have to bear the cut that we are likely to have to impose given the pressures on the legal aid budget and the need to ensure that we concentrate our legal aid spend as best we can on people who need legal help, particularly in these hard times. I am very grateful to the noble Baroness for having raised the issue of very high-cost cases.
I have spoken for quite long enough. I am very grateful to noble Lords for having made the points that they did. We are on a journey that we very much hope succeeds. I know that the House also hopes that it will succeed as that would mean that convicted offenders who had the resources to pay for their legal aid would pay for it. We will be watching what happens very closely because past experience shows that such schemes have not always succeeded. I know that not only we but also the noble Baroness and the noble Lord will be watching what happens closely.