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

First, I thank the Minister, the noble Baroness, Lady Ashton, for giving us such a clear exposition of three rather complex orders. During the progress of the Bill, she kindly provided us with some insight of what was likely to be in these measures; and, to that extent, the comments that I am about to make can be reasonably moderate, if not largely complimentary. One of the big issues that has, rightly or wrongly, been decided and which lies behind these orders, is whether or not decisions about financial eligibility should in future be made judicially or administratively. That battle has already been fought and lost by the Opposition; and I do not intend to re-open it again. However, I have an observation about the timing of these orders. We are now in the foothills of the implementation of the Carter report, which is taking an overview of all legal aid matters. If the noble and learned Lord the Lord Chancellor takes up even 50 per cent of what is in the report, it looks as if we are in for dramatic changes. Would it not have been better for the Government to have held their hand on the question of costs in magistrates’ courts until the key decisions on Carter had been made? I ask that not only in relation to the detail, but with respect to the overall financial envelope. We know that, in Crown Court cases, 50 per cent of the money is spent on 1 per cent of the cases. We fervently hope that the noble and learned Lord will introduce a system that dramatically cuts that amount. If that is the case, can the noble Baroness assure us that, if big savings are made, these eligibility figures will be reviewed? I would not like the lower and upper limits contained in the financial eligibility order to be set in stone for any longer than it takes the Government to implement the Carter measures. I would like to think that the noble Baroness or, perish the thought, any of her successors might come to your Lordships’ House at an appropriate moment to review them. In addition to those general comments, I have one or two questions of detail, none of which will surprise the noble Baroness. She is well aware of an issue that formed the background to the discussions on Carter, and which was the subject of several speeches made during the progress of the Bill. It will come as no surprise to her that one of our concerns is with regard to the geographical distribution of solicitors, in particular, and, more generally, that of other legal advisers, implied by the financial eligibility test. We do not know what impact it will have on the business viability of legal advisers and we would like to think that the department will keep this matter under constant review. Sometimes, for example, we may find that someone qualifies under the financial eligibility criteria and yet, because they are a long way away from a solicitor, they are unable in reality to take advantage of it, or they will be penalised despite the fact that they qualify. I know that the citizens advice bureaux often provide a useful stand in but they themselves are under great strain at the moment. In the other place, the Minister, Mrs Vera Baird, suggested that the telephone line system which operates at the moment may provide a viable substitute—and that may well be true in certain cases—but, in my submission, someone who appears as a defendant at a magistrates’ court, particularly if it is for the first time, would probably not feel that they had had the kind of comprehensive legal advice they would have liked to have had just through a telephone call. I say that simply as an observation on an issue that the noble Baroness should keep under review. One of the costs of not being legally represented, and therefore having to represent oneself, is that, as a consequence of one’s unfamiliarity with the law and procedure, cases tend to go on longer. If, as a result of this, the percentage of unrepresented defendants increases in magistrates’ courts, and consequently the length of trial extends, we may find that all the savings we had hoped to make by these measures are lost because of the extra costs of running the courts. So that is another factor that I hope the noble Baroness will keep under review. I do not know whether this is a fair question to put to the noble Baroness in conclusion, but I am going to put it anyway. She indicated in her closing observations that we were a few months away from a similar system being brought to your Lordships’ House to deal with Crown Court matters. Plainly, the department has already been looking at that in some detail and will already have taken a view about the extent to which what is going to be proposed is similar to the magistrates’ court system and the extent to which it is different. I hope the noble Baroness, in her concluding remarks, will be able to say something about that. I expect that the key difficulty, the sand in the machinery, of the financial eligibility order—if, indeed, there is to be some sand in the machinery—will occur in relation to Regulation 14. Plainly the system is at its most vulnerable where there is a proceeding in a magistrates’ court which is likely to go on for a long time. You may find that someone does not qualify for a representation order because their disposable income is above £20,000 a year and yet they are faced with a very long case in the magistrates’ court. Paragraph 14 provides for that situation; but it seems to me to be quite a stiff hurdle for an applicant to negotiate. I would like the noble Baroness’s assurance that she is aware of that and will be particularly concerned to keep that matter under review. Having said all that, I thank the noble Baroness for bringing these matters to the Committee and, with no more ado, sit down.