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Criminal Defence Service (Funding) (Amendment) Order 2005

My Lords, this is clearly a long-running saga in which I hesitate to intervene, but I am stepping in on behalf of my noble friend Lord Kingsland. This part of the saga was supposed to be covered by the May review, but it never appeared. It seems to have been suppressed. It has certainly been overtaken by the new review by the noble Lord, Lord Carter, which is ongoing. But the Government have not waited for Carter review to be completed; they have simply suppressed the earlier review and plunged in with this order. During Starred Questions on Wednesday, the noble and learned Lord the Lord Chancellor—who I am glad to see in his place today—said that the problem was that the amount of money had gone up a lot. He said that over eight years it had gone up from £750 million to £1.2 billion a year. He also said that the money was going to the wrong people—those were not his actual words but that is what they amounted to—to practitioners in big cases, rather than those in small cases. He did not spell out how the difference between £750 million and £1.2 billion had come about, and £450 million over eight years is a lot of money. Clearly, some of it is inflation, and some of it is presumably the increased complexity of cases, which therefore take longer, as the noble Lord, Lord Goodhart, mentioned. Some of it, no doubt, is the amount of money going to big cases. It would help the House to understand the noble and learned Lord’s point—that the money is going to the wrong people—if we knew the breakdown of where the extra money has gone over the past eight years. I understand that there was not time to do that in Starred Questions, which move quickly, but thanks to the noble Lord, Lord Goodhart, we now have a little more time to investigate the matter and hear about it. The other question that arises is whether the order before us does what the noble and learned Lord the Lord Chancellor says it does; that is, whether it diverts money from large practitioners in big cases to those involved at the bottom end of the scale. I must say that, on looking at the order, complicated as it is—I entirely agree with the noble Lord, Lord Goodhart, about that—I cannot see that that is what it actually does. It certainly seems to penalise, to some degree, the small-time practitioners as well as those at the other end. On the other hand, it is a modest measure. The overspend is said to be £130 million per year. I am not quite sure what that is measured against. Whereas the savings claimed from this order are £20 million per year, which is quite a lot less than that. So there is a considerable increase in the amount that is going to be spent on all this over the next year or two. I was interested that at the end of the order it says that no regulatory impact assessment has been produced because there is no effect on costs for businesses. But barristers and solicitors are in business, and it certainly affects their income and the way in which they conduct their business. Of course it is the impact on solicitors’ and barristers’ business, and whether they are going to continue to undertake this criminal defence type of work, which is crucial. It is suggested by the Bar Council, the Law Society, the noble Lord, Lord Goodhart, and so on, that it will seriously affect the future business of lawyers concerned in this way. That is a matter that should worry us. I certainly think and hope that the issue will be crucial to the report from the noble Lord, Lord Carter. That is where, assuming this order goes through—and the noble Lord, Lord Goodhart, has made it clear that it will—the next stage in this saga will appear. We need to know from the noble Lord, Lord Carter, in his report whether in his opinion, having been able to go into the complex matter very carefully, barristers and solicitors will still be able to undertake this work on a reasonable basis without their incomes being not only frozen, as they have been for eight years, but suffering from other cuts, either from inflation or from deliberate acts in orders such as this.