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Criminal Justice and Immigration Bill

My Lords, this has been an extremely interesting debate. I congratulate the noble Earl once again on raising the matter. We have shone a light into an area which has not been discussed recently, and we have identified some areas, as he reflected, which probably need further research to discover whether people who ought to get legal representation are not getting it. The evidence for that is very slim indeed. My department has received no representations from organisations involved in the criminal justice sector to suggest that this is a genuine problem—and I will come back to the question of whether further research needs to be undertaken. I also congratulate all noble Lords on their approach to monetary matters and what I can only describe as inspired accountancy. I will come back to the point about where the £17 million now is. My noble friend quite rightly said that justice costs resource. Of course it does. The current budget for legal aid in this country is £2 billion. We have the most generous legal aid system in the world. The kind of expenditure is, I think, £38 per head compared to about £3 or £4 in France and Germany. In countries with systems that seem akin to ours, such as Ireland or New Zealand, I think the figures are about £7 or £8 per head. I know that noble Lords will point to areas where they think more legal aid resource should be spent. That is fair enough, but we start with a basis of a huge amount spent in this country on legal aid. We spend as much on legal aid as we do on the direct cost of the Prison Service. I will come on to the question of resource in a moment. We think that the current arrangements give sufficient and proper protection to young defendants. That case rests on the Access to Justice Act 1999, which says that all defendants must satisfy the interests of justice test to qualify for publicly funded representation. In applying the test, the court takes into account a range of factors. This includes whether the defendant is of a young age and whether they can understand the proceedings or state their own case. There have been some changes. Since October 2006, defendants appearing before the magistrates’ court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation. However, that was changed in November 2007. From that point, all defendants under the age of 18 have been passported through the means test, so this has become a universal benefit if the interests of justice test has been met, as the noble Earl, Lord Onslow, suggested. That change was warmly welcomed by the legal profession, the judiciary and the Law Society, and I do not always look to the Law Society for support on legal aid matters. My understanding is that in practice it would be extremely rare for a young person applying for legal aid not to pass the interests of justice test. As I said in Committee, this arises only in less than 2 per cent of applications. In many cases, the test is passed because court staff take the view that the young person may well not understand proceedings and so would be unable to state their own case. Therefore, in the overwhelming majority of cases, young people applying for legal representation will qualify. It is important to stress, however, that we know that approximately one-quarter of the 126,000 youths who appeared in court in 2006 did not apply for a representation order. As the noble and learned Baroness, Lady Butler-Sloss, said, many of those cases involve the more minor summary offences, particularly those related to motoring offences, public order offences and criminal damage cases. It is probably entirely appropriate that legal representation is not required in those cases. However, I have no evidence to suggest that in the serious cases that noble Lords mentioned legal aid was not applied for, and that when applied for it was not given. I accept that we lack evidence in this area but, as I say, I have no hard evidence to suggest that there is a major problem in those circumstances. The noble Lord, Lord Elystan-Morgan, made an interesting suggestion about the advice that might be given to desk sergeants in custody suites. I shall reflect on that important consideration. When a young person is arrested, cautioned and taken to the police station to be interviewed, she or he should be informed of access to free and independent legal advice and offered the services of the duty solicitor. That young person may well have taken up the services of the duty solicitor. That suggests that if the system is working well, there is no reason why a young person should not be represented if they ought to be. On resources, your Lordships felt that the figure I quoted in Committee of £800,000 sounded a very small sum. It was based on the 1.7 per cent who failed the interests of justice test. The problem I have is that if all the people brought before the courts applied for and were granted legal aid through the interests of justice test, there could be a considerable increase in the legal aid budget. That is a risk that I do not feel I am in a position to take. I know noble Lords think that I have £17 million which I am saving for a rainy day or some other purpose. Alas, it is not like that. I have a cash-limited budget of £2 billion, which is set for the next three years.