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Criminal Defence Service (Contribution Orders) Regulations 2009

In moving the regulations, with the leave of the House, I shall also speak to the draft Criminal Defence Service (Representation Orders) (Amendment) Regulations 2009 and the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2009. These three sets of regulations are laid by the Lord Chancellor under provisions of the Access to Justice Act 1999 and are subject to the affirmative resolution procedure. The instruments are being laid to extend means-testing for legal aid to the Crown Court. There are four other sets of regulations, all subject to the negative resolution procedure, relating to financial eligibility; interests of justice provisions; amendments that provide for the right of the Legal Services Commission to grant representation in Crown Court proceedings; and, lastly, those that limit the power of the court to grant representation. The draft contribution orders regulations are the main instrument. They provide the framework within which the new scheme will operate. The draft representation orders amendment regulations provide that, in almost all cases, responsibility for granting representation orders in criminal proceedings in the Crown Court will move from the court to the Legal Services Commission. The draft representation orders appeals etc. regulations provide for consequential amendments to the process for appealing against refusals to grant a representation order. The regulations underpin the new scheme that will be introduced in January 2010 at five early-adopter courts. The courts involved are Bradford, Norwich, Preston, Blackfriars and Swansea Crown Courts. The scheme applies to trials, committals for sentence and appeals to the Crown Court. It will then be extended to the rest of England and Wales between April and June 2010. The purpose of the early-adopter phase will be to test the processes that have been developed before national rollout occurs and to make any changes necessary. The introduction of means-testing in the Crown Court is a central part of our policy to target legal aid at those who need it most and to secure best value for money for the taxpayer. That has been a stated commitment of the Government since 2005. There are two major questions to pose to the House. First, why should not a convicted defendant have to pay some or all of his or her costs if he or she can afford to? The second, related, question is: why should the state pay precious legal aid funds to a convicted defendant who can afford to pay and thus deprive others who are in need of legal aid? The means-testing scheme that has been in operation in the magistrates’ courts since October 2006 has, to date, delivered savings to the Legal Aid Fund of more than £80 million. Our forecast of savings in the Crown Court is more than £50 million a year by 2013-14. The Government believe that the scheme will fairly and effectively target those convicted defendants who can afford to contribute towards part or all of their legal aid costs because of their income and/or capital asset position. Defendants who have made an income contribution towards their costs during the life of their case and are then acquitted will have their contributions returned with interest. The proposed scheme focuses legal aid support on the majority of Crown Court defendants, who genuinely cannot afford to contribute towards their legal aid costs. We estimate that about three out of four defendants will continue to receive representation for free. Those who are under 18 and those in receipt of what are described as passporting benefits, such as income support, will be exempt from making any contribution at all. The scheme will also create a stake for those defendants who are asked to pay a fixed number of monthly contributions—assessed according to their means—in ensuring the timely progression and disposal of their case. The income threshold in the Crown Court will be the same as that currently operating in the magistrates’ court scheme. In addition, we propose a capital asset threshold of £30,000. Those convicted defendants who have not covered the costs of their cases from income contributions alone will have their capital assets assessed to determine whether they should make a further contribution. As I said, only assets, which include equity in property in excess of the £30,000 threshold, will be taken into account when determining whether a contribution from capital is required. The contribution order regulations provide that every defendant appearing for trial or committal for sentence before the Crown Court will be granted a representation order. The Crown Court means-assessment scheme builds on that which exists in the magistrates’ courts and incorporates elements of it. Where supporting evidence is required to enable a fair and proper assessment of means to take place, defendants will have up to two weeks from the submission of their application form for legal aid in which to furnish the relevant information. All defendants remanded in custody by the court will be able initially to self-certify their means by completing and signing a statement of truth. These provisions are designed to ensure that there is the minimum of delay in a defendant obtaining representation and the minimum of delay in the representative beginning work on a defendant’s case. This is particularly important in indictable-only cases, where the role of the magistrates’ court is restricted to a single hearing before the case moves to the Crown Court. The scheme sets a generous threshold of disposable income. We are clear that defendants, and particularly their partners and dependants, should not be disadvantaged unduly by a requirement to make contributions, whether from income or capital. The threshold that we have set, and the allowances that will be made before a defendant is required to contribute, make us confident that only those genuinely able to pay will be required to do so. I reiterate that the requirement to pay will, we estimate, affect only around one in four defendants. Concern was expressed in the recent consultation exercise on these draft regulations about aggregation of income and assets and enforcement for non-payment of a contribution order. The Government consider that the fairest way of judging whether a contribution should be payable is to aggregate income and assets at the household level. This is line with current civil schemes and reflects the practice when other means-tested benefits are being applied for. However, aggregation will not take place where the partner has a contrary interest in the case, by being, for example, the victim or a witness for the prosecution at trial. The draft regulations deliberately do not specify what a contrary interest might be, so that such issues can be dealt with on the facts of each case. A hardship procedure will act as an additional safeguard for those who believe that they are genuinely unable to pay the contribution assessed because, for example, they have other, exceptional financial commitments. When it comes to the collection and enforcement of a contribution order, the agency charged with maintaining the scheme will provide a supportive environment for defendants to comply. I have to say that there may have been some misunderstanding of the Government’s position when it comes to enforcement. Any enforcement action will be taken against the defendant alone and not against partners or dependants. The action itself might take a variety of forms—for example, attachment of earnings orders, distress warrants, third-party debt orders pre-conviction or, post-conviction, charging orders on property and, in due course, seizure of motor vehicles. I wish to make it abundantly clear that the option of a forced sale of a home will be an exceptional last resort and considered only where there has been a persistent and wilful refusal by a defendant to comply with the terms of a contribution order. In addition, any enforcement action will have to be the subject of an application to a judge. The Government are confident that this judicial safeguard will protect the interests of those who might be at risk from a defendant’s failure to comply with an order. Any decision to take enforcement action will rest with the Legal Services Commission, after due consideration, and not with the enforcement agency undertaking the administrative elements of the scheme. The Government have decided that all enforcement options should be open to the agency to seek, because it believes that it is not right that those who have been fairly assessed as having the means to contribute towards the costs of their case should seek to evade that responsibility. I have dwelt on some of the more important aspects of the new Crown Court contribution order regime and now turn briefly to the two other draft sets of regulations that require affirmative resolution. The first are the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations. As I said, these amend regulations that had provided for an appeals process where an individual had been refused a representation order on the ground that the interests of justice did not require representation. One of the key elements of the new Crown Court scheme is that all defendants committed, sent or transferred for trial will pass the interests of justice test, as will those committed for sentence from the magistrates’ court. The Government recognise that the types of case heard in the Crown Court are more serious on the whole than those heard in the magistrates’ court. For this reason, we believe it only right that an automatic grant of representation should be made for defendants appearing before the Crown Court. This is provided for in the new interests of justice regulations, which are the subject of negative resolution. The draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations limit appeals against a refusal to grant a representation order to appeals to the Crown Court, which will continue to be subject to an interests of justice test. Finally, I turn to the draft Criminal Defence Service (Representation Orders) (Amendment) Regulations. These regulations provide that the Legal Services Commission may grant the right to publicly funded representation in criminal proceedings in the Crown Court. In practice, the Legal Services Commission will delegate this function to staff in the magistrates’ courts, who are by now very experienced in dealing with legal aid applications under a means-testing regime. The introduction of a means-testing scheme in the Crown Court is designed to enable a sustainable future for the Legal Aid Fund, to ensure that those who are guilty and can afford to contribute towards the costs of their case do so and to underpin our commitment that those most in need of access to legal advice and assistance, whether in the criminal or the civil field, continue to receive it. I beg to move.