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Criminal Defence Service (Contribution Orders) Regulations 2009

My Lords, we have quite a lot to absorb here, but I thank the Minister for explaining what the Government are seeking to do with these rather complicated regulations. He has presented them as an efficiency measure designed to ease the strain on the legal aid budget. The Criminal Defence Service uses criminal legal aid to help people who are under investigation or facing criminal charges by ensuring that those accused of crimes have access to legal advice and representation. From my time on the bench, I am very aware that legal aid has been one of the fastest growing areas of public sector spending over the past 25 years, up from £536 million in 1982 in today’s prices to around £2.1 billion today. Of that, criminal legal aid accounts for around £1.2 billion. The Minister has argued that this rate of increase in spending is not sustainable. Therefore, in conjunction with the Legal Services Commission, the body responsible for administering legal aid, the Government are looking for savings where they can. That is understandable. No matter how reluctant they are to admit it, they must find "efficiencies" across every area of public spending. However, we are dealing with a very sensitive area, as people’s liberty is at stake. The savings the noble Lord hopes to make must not be allowed to trump the interests of justice. As the Minister has explained, in October 2006 a new means testing scheme for eligibility for criminal legal aid was introduced in the magistrates’ court. The orders now before your Lordships will extend the means testing already in place in the magistrates’ court to the Crown Court. I cannot complain about the principle of proposing that defendants who have been convicted in the Crown Court should pay a contribution towards their legal representation if they can afford it, but I have a number of concerns with what the Government are actually doing. We are concerned by some of the consequences of these regulations in that there will be a large impact on vulnerable defendants. We fear that if the Government push ahead with these changes we will see a large number of defendants who will just miss out on criminal legal aid in Crown Court cases. This will lead to a situation whereby criminal legal aid will be available only for the very wealthy or the very poor. The way that defendants’ wealth is to be assessed makes us worry that if faced with the seizure of their assets, perhaps even their home, defendants will run the risk of forgoing representation altogether. Can the Minister inform the House whether the number of unrepresented defendants in the magistrates’ court has risen since the introduction of means testing in such courts? The Law Society has voiced its continued concerns, which I share, about the assessments of partners’ incomes and capital. Unless the defendant’s partner has a contrary interest in the proceedings, his or her resources are to be assessed for the purposes of paying legal aid too. However, there are doubts over whether even partners with a contrary interest are sufficiently protected by the regulations. What about a situation where a home inhabited by the defendant and partner may be entirely owned by the defendant and can therefore be included in the assessment of means? A potential effect of these regulations would be to give a defendant in a domestic violence case the power to threaten the complainant—in other words, his or her partner—with homelessness if they continue with the proceedings. Where the family home is entirely owned by the defendant, the regulations allow for the sale of the home to be forced in order to pay for the proceedings, so the victim of domestic violence could thus find themselves homeless if their partner is found guilty. These are serious concerns and I hope the Minister will address them. I cannot believe that such an outcome would be considered an appropriate application of the policy. However, I cannot see a protection against it spelt out in the regulations. The noble Lord said that the Government have made a generous calculation of a defendant’s disposable income. We are told that only in cases where the defendant’s disposable income exceeds £3,398 will they be liable to pay a pre-conviction contribution from their income. Should we see a rise in the number of unrepresented defendants appearing in the Crown Court—I ask the Minister to confirm that these numbers will be monitored—will that income threshold be raised? I was concerned about whether someone found innocent and not guilty of an offence would have the pre-paid amount paid back, and he has assured me on that matter. The worry we have about the Government’s means-testing agenda is that it will deny access to justice for defendants and will not save a considerable amount of money. As I said earlier, the legal aid budget has swollen to £2.1 billion and the criminal legal aid budget is £1.2 billion. How much will these regulations save? The Government are trying to save money at the margins when they should be getting a grip of the high-cost cases—terrorism trials and the like—which comprise only about 1 per cent of all criminal cases but swallow nearly half—49 per cent—of the legal aid. How much does the Ministry of Justice expect to spend on these high-cost cases next year? The Government ought to be looking at legitimate ways of trimming the budget in such cases—the cost of expert witnesses, for example, and better case management. Until they are prepared to do that, we shall see more regulations like these, which may be well intended but risk harming access to justice.