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Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006

rose to move, That the Grand Committee do report to the House that it has considered the Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006. The noble Baroness said: I shall speak also to the Criminal Defence Service (Financial Eligibility) Regulations 2006, and the Criminal Defence Service (Representation Orders: Appeals etc.) Regulations 2006. These are three sets of draft regulations that will give effect to the changes introduced to the Access to Justice Act by the Criminal Defence Service Act 2006. Noble Lords will recall that the Criminal Defence Service Bill completed its passage in March this year. The finished product benefited from the constructive debate in your Lordships' House and another place. Since then, officials in my department have been working closely with stakeholders to ensure that the draft regulations deliver a system which will be easy to understand and quick to administer. The regulations will also achieve the underlying aim of helping to control spending on criminal legal aid to ensure that legal aid resources are balanced and refocused to where they are needed most. The draft regulations were first published during the passage of the Bill. A further version reflecting many of the points raised during the helpful debates was published and circulated to key stakeholders in April. Those include the Law Society, the Criminal Law Solicitors’ Association, the General Council of the Bar, the Legal Aid Practitioners’ Group, the London Criminal Courts Solicitors’ Association, the Criminal Bar Association, the Magistrates’ Association, senior members of the judiciary, Liberty, Justice, the National Association of Citizens Advice Bureaux and the Justices’ Clerks Society. As a result, we have made some changes, and will keep the working of the new scheme under active review. Noble Lords will recall that the Criminal Defence Service Act provides for the introduction of a financial eligibility test for the grant of criminal legal aid and transfers the power to grant legal aid to the Legal Services Commission. The granting of legal aid will cease to be a wholly judicial function administered by court staff. That will allow the Legal Services Commission to exercise greater control over expenditure and ensure consistency. Court staff will remain responsible for the scheme’s day-to-day operation, governed by a service-level agreement between the Legal Services Commission and Her Majesty’s Courts Service. The Act includes powers to introduce means-testing in the Crown Court, and we are currently considering what that detail of the scheme should look like. We will publish detailed proposals for consultation shortly, with a view to implementing the system in Crown Courts by the end of 2007. The main body of the new scheme for the magistrates’ court is set out in the draft financial eligibility regulations. Those provide for the financial eligibility criteria which defendants must meet in order to receive publicly funded representation. The transfer of responsibility for the grant of legal aid from the court to the Legal Services Commission is provided for in the representation orders and consequential amendments regulations. The procedure for appeals about the interests of justice test is set out in the appeals regulations. Under the new system, to qualify for legal aid an applicant will need to satisfy the existing interests of justice test as well as the new means test. There will be an upper threshold above which no representation order will be granted, and a lower threshold under which a representation order will be granted. For those who fall between the two, there will be a more detailed assessment of their financial circumstances. Individuals in receipt of certain qualifying benefits, such as income support and the income-based jobseeker’s allowance, are automatically eligible, as are those under 16, or under 18 and in full-time education. The means test will measure affordability by weighting an applicant’s income to reflect individual family circumstances and household composition. An individual will be eligible for a representation order if his gross annual income, adjusted to take account of partner or children, is £11,590 or less, and ineligible if it is £20,740 or more. Where it falls between these amounts there will be a more detailed assessment. The individual’s annual disposable income will be calculated, making deductions in respect of any income tax, national insurance, council tax, housing expenses, childcare costs, maintenance and cost of living expenses from the applicant’s adjusted income. If his annual disposable income does not exceed £3,156, the individual is financially eligible. One of the concerns noble Lords will recall was raised during the passage of the Bill was about the need to avoid introducing delay. It is essential that measures to control and refocus legal aid expenditure all support our objective of making the criminal justice as speedy and efficient as possible. There are therefore a number of elements built in to the new system to militate against the risk of delay. For example, the old system required applicants to provide substantial supporting documentary evidence of means before legal aid could be granted, and that led to adjournments. Now, in most cases, applications will need to be accompanied only by the most recent monthly wage slip. Where an applicant is in receipt of benefits, their national insurance number will be sufficient, as court staff will have a dedicated real-time link to the Department for Work and Pensions database to check it. It is anticipated that correctly completed forms will be processed well ahead of the first hearing, so that in the majority of cases a defence solicitor knows from an early stage whether or not his client is eligible. Solicitors will also be under a duty to advise their client to apply for a representation order immediately after charges are brought. However, where there is a delay in reaching a determination of eligibility, the early-cover scheme will apply. That will allow for a fixed-fee payment to defence solicitors to cover initial preparatory work and representation at their client’s first hearing, where an application is received within two working days of charge, no decision on that application has been made before 9 am on the day of the first hearing and the eventual decision is that the case passes the merits test but the defendant does not pass the means test. If the defendant arrives at court for the first hearing unrepresented, representation can be provided through the duty solicitors’ scheme. The early-cover scheme will also be extended to cover cases where the client has been remanded in custody pending appearance. During the passage of the Bill, noble Lords argued that there was a need for an appeal to the court on financial eligibility. The Government accepted an amendment in another place to enable regulations to provide for the Legal Services Commission to refer a question to the High Court for its decision. We have provided for that in the financial eligibility regulations, which also set out that, where an applicant believes there has been an administrative error or miscalculation in determining his financial eligibility, he may apply to the Legal Services Commission for an administrative review of the determining officer’s decision. The appeals regulations also provide that, in circumstances where it is alleged that the interests of justice have been applied incorrectly, there will be a right of appeal to the court. In cases where the court overturns a decision reached in respect of the interests of justice, any application will still have to be referred back to the grant teams for a formal determination of financial eligibility. The draft regulations recognise that while the means-testing scheme is sensitive to individuals’ circumstances, there will be occasions where applicants may fail the means test and yet may genuinely be unable to pay for their defence costs. That may be because of unusually high outgoings, or because they are involved in an unusually costly case. Therefore, defendants will be able to apply for a review by a dedicated hardship unit in the Legal Services Commission, either alongside their initial application or following a decision that they will not be eligible. The review will assess both the applicant’s disposable income and the ability to meet the likely costs of the case from that disposable income. It will require more detailed information and fuller evidence on the applicant’s financial circumstances as well as an estimate provided by the solicitor as to the likely costs of the case. Where the estimate of costs is unusually high, the solicitor will be required to provide additional justification to support that. Throughout the development of the Criminal Defence Service Act and the supporting regulations, we have listened to stakeholders and are confident that, in doing so, we have struck the right balance between fairness and efficiency. We believe that the new system will be easy for defendants, solicitors and court staff to use. I therefore commend the regulations to the Committee. Moved, That the Grand Committee do report to the House that it has considered the Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006.—(Baroness Ashton of Upholland.)