That the Grand Committee do report to the House that it has considered the Criminal Defence Service (Information Requests) (Amendment) Regulations 2010.

Relevant document: 8th Report from the Joint Committee on Statutory Instruments.

My Lords, in moving that the Committee consider the draft regulations, I shall speak also to the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2010. These two sets of regulations are made by the Lord Chancellor under the Access to Justice Act 1999 and are subject to the affirmative resolution procedure under Section 25(9) of that Act. I hope not to detain the Committee too long in its consideration of these draft regulations. They are both about legal aid in criminal cases, but their substance is unrelated.

The draft Criminal Defence Service (Information Requests) (Amendment) Regulations are the final piece in the jigsaw of regulations required to support the introduction of means-testing in the Crown Court, which began on 11 January this year. They mirror regulations currently in force in relation to magistrates’ court means-testing. As your Lordships know, that scheme has been in operation since October 2006 and the current regulations have supported magistrates’ court means-testing for over a year.

These draft amendment regulations provide for the range and accuracy of a defendant’s application for legal aid in the Crown Court to be checked by the assessing authority. They will play a key part in providing a level of assurance about the validity of claims, ensuring that steps can be taken to protect the Legal Aid Fund from fraudulent applications and, equally importantly, making sure that a defendant’s liability to make a contribution to their defence costs is calculated accurately. They will enable court staff, on behalf of the Legal Services Commission, to seek information from Her Majesty’s Revenue and Customs and the Department for Work and Pensions about a defendant’s income and capital. The powers necessary for this process were inserted in the Access to Justice Act by the Coroners and Justice Act 2009. The Committee may recall the debates we had in this place in Committee and on Report about these provisions.

The draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations are a small but none the less important step in ensuring that defendants in the magistrates’ court—these regulations deal with the magistrates’ court only—who are aggrieved by a refusal of a representation order on interests-of- justice grounds have an enhanced right of appeal against such a refusal. The interests-of-justice test takes into account a range of factors, including whether, in the event of a conviction, the defendant faces a loss of liberty or livelihood and whether the defendant is able to understand the proceedings and take an active part in court. The Government understand that there will be situations in which an initial refusal of a representation order is subsequently found to be incorrect, such as when a defendant provides further information to strengthen their application. In order to preserve the element of judicial scrutiny that is vital in deciding an interests-of-justice test, the new draft regulations provide that a refusal to grant a representation order on interests-of-justice grounds can be reviewed in the first instance by a member of the magistrates’ court staff, with a further appeal to the court in the event that the initial refusal is upheld.

It might be helpful if I pause briefly to explain that a second bite of the cherry used to be available to a defendant. When responsibility for granting representation orders was transferred from the courts to the Legal Services Commission, my department provided for appeals against a refusal to grant a representation order to be heard in all instances by the court. This was done in response to comments that the Government took on board during the passage of what became the Criminal Defence Service Act 2006. These draft regulations restore the position of a defendant to the position that obtained prior to the enactment of that legislation. Not only do the regulations enhance the appeal process that is available to a defendant, but equally importantly they free up the time of the courts to concentrate on the efficient and timely disposal of cases. I hope that the Committee will consider this a positive move.

In our view, these two sets of draft regulations are a necessary and important step in developing robust support for the work of the magistrates’ courts and Crown Courts, and I commend them to the Committee.

My Lords, I am grateful to the noble Lord for bringing these two sets of regulations to the Committee and for his explanation. Like him, I hope that I will not detain the Committee for long in examining what he describes as the final piece in the jigsaw. If it was possible for the whole jigsaw to be put in front of us at once on some occasions, life might be considerably easier.

The answer to my first question is presumably very simple, but I genuinely do not know it. The Explanatory Memorandum for the Criminal Defence Service (Information Requests) (Amendment) Regulations 2010 also deals with two other orders, which I take to be negative instruments and the reason why they are not before the House. I would be most grateful if the Minister could confirm that. Secondly, the Minister quite rightly stressed that it was important to be able to have these regulations for the very good reason that it is important to be able to protect the Legal Aid Fund against fraud. Will he tell us his department’s estimates of the levels of fraud in legal aid funding? Is it even possible to make such estimates or are they guesstimates? I remember from my days in social security the great difficulty in ever estimating how much fraud there was, because by its very nature one did not know, but I presume that the department has made some estimates and I should be grateful for advice on that.

My final and very minor question relates to the appeals regulations. As the Minister made clear, where the representation authority refuses an application, the individual may appeal first to the staff of the magistrates’ courts and then to the court, but I take it that, even if the court turns that down, it would on certain occasions be possible to appeal beyond the court. I should be grateful for advice from the Minister as to whether that is the case. Having said that, it is not necessary to go back to the debates on the substantive legislation; we all remember those. For the moment, we are dealing merely with the regulations. I have no further questions.

My Lords, I declare an interest because I am in receipt of legal aid fees. The noble Lord, Lord Henley, referred to a jigsaw. What has happened is that the pieces of the jigsaw have all been broken up and thrown into the air; or, to use another metaphor, the architecture of legal aid has completely changed in the decisions announced last week, whereby the Legal Services Commission has been abolished. As I understand it, it was the representation authority which originally granted legal aid, subject to appeals. What is to replace it? The Minister was quoted last week as saying that decisions on the grounds of legal aid will remain completely independent and Ministers will not have any part in them. He also said;

“I want to make it very clear that we consider it essential that there is a clear separation between ministers and funding decisions in individual cases”.

Will he take this opportunity to explain what is now meant by the representation authority? Are we moving away from the Legal Services Commission to some unformed executive agency that is in some way up in the air? When will the legal aid package be put together as a whole?

Bringing these regulations forward at the moment is jumping the gun, because until we can see the whole picture and what the representation authority referred to in these regulations is, we are at something of a loss. I said last year all that I want to say on the principle, when we debated it first in February and later in November. I shall not repeat my objection in principle to the way in which the Government have gone about reintroducing means tests and so on. The noble Lord knows where I stand on that, but I ask him: is this not premature? Should we not wait at least to find out what executive agency is proposed and how there will be a clear separation between Ministers and funding decisions?

The director of the Legal Action Group, described this change as,

“a complete politicisation of legal administration”.

These announcements have been made, and there has been a very fetching picture of the Minister in some newspapers. He is not running in the election, so perhaps “politicisation” is taking it a bit far. However, clearly there has been a very important change due to the manifest deficiencies of the Legal Services Commission, which tried and failed over many years to bring some sense to the situation and was heavily criticised last week by the Lord Chancellor, Mr Jack Straw.

Those are my questions and I look forward to hearing the answers.

I am grateful to both noble Lords, who have approached these regulations in slightly different but extremely helpful ways.

I shall answer the noble Lord, Lord Henley, as best I can. Yes, it would be great to have the jigsaw in place on one occasion. It has not happened here, but there are good reasons for that. He is right to say that the two statutory instruments he referred to are negative. He asked about fraud in relation to the first statutory instrument. I cannot help him very much. It is not possible to make an accurate estimate, given that more than 1.6 million acts of assistance are provided, but these regulations are of course designed to make the process transparent for defendants and the fund. As Minister responsible for legal aid, I often receive letters from Members of Parliament if one of their constituents has said to them, often in matrimonial cases, “Look, the person on the other side should not be legally aided. Why aren’t I?”. There are ways of looking into such matters, which involve closer working with the DWP than was previously possible. The noble Lord also asked about the second instrument. If the first appeal was to the staff and the second to the court, he asked, was there a further appeal? Only by way of judicial review, but it does exist.

The noble Lord, Lord Thomas of Gresford, referred to the recent decisions made about the Legal Services Commission. For the time being, the commission remains a non-governmental public body. Primary legislation will be needed for it to change its status to that of executive agency. We hope to legislate on that matter, literally as soon as possible, but for now the commission, under a new chief executive, carries on with the functions that it has in law under the Access to Justice Act 1999.

The regulations are before the House today so that the Crown Court means-testing policy, which has already begun in some adopter areas—I have visited Preston Crown Court, for example, where this has already been introduced, and cases are beginning to come through from the magistrates’ courts—can be started. Whether or not it will be a success we do not know yet; the jury is out. I remember well the noble Lord’s concerns about that matter. We will have to see.

The burden of what the noble Lord had to say, though, was to get me to try to answer the “independence” criticism that has been made. The decision eventually to abolish the Legal Services Commission as it is and move it to an executive agency has been widely supported by the Bar, the Law Society and many commentators. We counter the argument about independence that he refers to by saying that the last thing that Ministers would do under the new system is decide individual cases on legal aid; that would be quite wrong. How will we stop individual Ministers doing that? As I understand it, the Bill is being drafted to change the status of the body by including a clause that makes clear the position—that it will not be for Ministers to make decisions on individual cases—although I cannot guarantee that that will be in the Bill. The other way that it is done by the DWP at present is to ensure that there is an independent body to appeal to on a decision so that it cannot be said that the department, let alone a Minister, has the final word on an individual decision on legal aid.

Bearing in mind that legal aid is frequently granted for the purposes of suing the Government themselves and individual Ministers, I can understand the Minister saying that Ministers will be prevented from decision-making, but will they be prevented from making representations to whatever authority or executive agency is involved in making decision to grant legal aid? As the executive agency will be an instrument of government, representations from a Minister will carry a lot of weight with that executive agency, and therein lies the possibility of real conflict.

That is an important point. Ministers should keep out of representing their own views on individual decisions. They are entitled to set down policy lines that may or may not be adopted by Parliament with regard to what class of person should be granted legal aid and in what kind of case, but Ministers should keep well away from making individual decisions, or even recommendations on individual decisions. This will be an important point, but one that, if I may say so, has been exaggerated. I do not think that there is any danger that the independence of decision-making about individual legal aid will not be maintained. It is important—I say so in Parliament, as it were—that that should be the case, and that is our determination.

It is important, too, that in appropriate cases, those who want to bring actions against the state—whether against local or national government—should be able to do so. In many ways, that is the mark of a free society. We want to guarantee that the independence that the noble Lord asked me about is maintained. The answer to his first question is that it will take some time for the agency to come into being. It will need an Act of Parliament for that to happen. For that reason, we have come forward today with these regulations.