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Criminal Defence Service (Information Requests) Regulations 2009

My Lords, a draft of this statutory instrument was laid before Parliament on 12 January 2009 and was debated in the House of Commons on 11 February. The draft Criminal Defence Service (Information Requests) Regulations will support the application process for criminal legal aid in the magistrates’ courts so that information provided by a defendant about their financial status can be properly verified. This follows implementation of Section 57 of the Criminal Justice and Immigration Act 2008 which inserted paragraphs 6 to 8 into Schedule 3 to the Access to Justice Act 1999. In practice, this means that the Legal Services Commission, as the authority responsible for granting publicly funded representation in criminal cases, may request specific information from the Department for Work and Pensions or Her Majesty’s Revenue and Customs. The Government have long considered that those defendants, in criminal cases, who can afford to pay for their defence in the magistrates’ courts, should be asked to do so. This was the principle that underpinned the Government’s decision to introduce means-testing in magistrates’ courts in October 2006. I should explain that certain categories of applicant are automatically passported through the financial eligibility test. These are all defendants under 18 years of age and all defendants in receipt of one of the four passporting benefits, namely income support, income-based jobseeker’s allowance, the guarantee state pension credit and income-related employment and support allowance. While the means-testing scheme is now working well in magistrates’ courts, we are continually looking at ways of improving it—such as the new arrangements covered by this statutory instrument. To date, there has been a formal agreement between DWP and Her Majesty’s Court Service which allows HMCS to confirm, through an IT link that provides an immediate yes/no answer, whether an applicant was in receipt of a benefit which rendered them eligible for legal aid. There has also been an informal agreement which allows confirmation of other forms of benefit income with DWP and other forms of income with Her Majesty’s Revenue and Customs. The amendments to the Access to Justice Act 1999, and this instrument, are putting these working practices on a much clearer statutory footing. While such checks have been undertaken on the basis of written consent provided by the applicant on their legal aid form, the Government believe that these working practices need to be established on a firmer basis. The new arrangements will provide a more detailed picture of the welfare benefits that the applicant may be receiving, which will allow for a more accurate and speedy verification of their financial status. This supports initiatives such as Criminal Justice: Simple, Speedy, Summary which has successfully delivered a more effective and responsive justice system for victims and the public. It is not always the case that each and every application will undergo verification. For example, there can be circumstances, such as when a defendant is remanded in custody, that applications may be accepted on the basis of self-certification of income. In these cases, the LSC has, in agreement with the National Audit Office, adopted a system of proportionate post-event checks to ensure that any risk to public funds is kept within an acceptable level. One specific category of applicant where this would prove of assistance is those individuals who declare zero income on their application form. Although the LSC would not be able to demonstrate conclusively that an applicant has no benefit, appropriate checks with DWP would confirm whether a defendant is receiving any benefits, while checks with HMRC would confirm whether they have any legitimate income. This will prove invaluable in combating potential fraud. The amendment to primary legislation, supported by the new statutory instrument, will put these arrangements on a much more formal footing and also allow for the necessary robustness and scrutiny. A second related statutory instrument, the Criminal Defence Service (Information Requests) (Prescribed Benefits) Regulations 2009, was laid on 9 February. This details the list of benefits to be considered when assessing an individual’s benefit status. While the amendments to Schedule 3 to the Access to Justice Act 1999 table some of the information which may be the subject of a request, such as name, address and national insurance number, regulations can specify further information which may be sought. The statutory instrument before the House specifies that information may be requested about an individual’s income, capital gains and benefits administered by HMRC. It also includes information about the applicant’s status as a company director or partner in a business. Schedule 3 to the Access to Justice Act also allows information to be requested about any benefits which the applicant is receiving from the DWP. The statutory instrument before the House also extends this to benefits received over the two-year period which precedes the legal aid application. I stress that the new arrangements will not make any substantial difference to defendants or solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on defendants or solicitors. Both this instrument and the other negative instrument were the subject of a 12-week-long consultation exercise last autumn. We received three responses and all were broadly supportive of the Government’s proposals. Regarding data protection, nothing within the new legislative framework dilutes the Government’s obligation to protect an individual’s personal information and to maintain confidentiality. Indeed, the primary legislation expressly forbids any disclosure of information which contravenes the Data Protection Act 1998. It also specifically makes it a criminal offence to disclose the information for any purpose other than that related to the administration and operation of the means test. Following the publication of Sir Gus O’Donnell’s data handling report on 25 June 2008, I can further confirm that officials in my department are undertaking a privacy impact assessment in relation to the data-sharing arrangements and their impact upon privacy. This will be taken forward in liaison with the Information Commissioner’s Office with the final document being published on the Ministry of Justice website. We are confident that the proposed arrangements for requesting information set out in this instrument are both necessary and proportionate, and that proper measures are in place to afford sufficient protection to applicants. These new arrangements, supported by the new instrument, support an effective criminal justice system. They will ensure greater accuracy in the information provided by defendants in magistrates’ courts as well as delivering greater accountability for the taxpayer. This strikes a right and fair balance, and I commend the instrument to the House.