---

Criminal Defence Service (Information Requests) (Amendment) Regulations 2010

My Lords, in moving that the Committee consider the draft regulations, I shall speak also to the draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations 2010. These two sets of regulations are made by the Lord Chancellor under the Access to Justice Act 1999 and are subject to the affirmative resolution procedure under Section 25(9) of that Act. I hope not to detain the Committee too long in its consideration of these draft regulations. They are both about legal aid in criminal cases, but their substance is unrelated. The draft Criminal Defence Service (Information Requests) (Amendment) Regulations are the final piece in the jigsaw of regulations required to support the introduction of means-testing in the Crown Court, which began on 11 January this year. They mirror regulations currently in force in relation to magistrates’ court means-testing. As your Lordships know, that scheme has been in operation since October 2006 and the current regulations have supported magistrates’ court means-testing for over a year. These draft amendment regulations provide for the range and accuracy of a defendant’s application for legal aid in the Crown Court to be checked by the assessing authority. They will play a key part in providing a level of assurance about the validity of claims, ensuring that steps can be taken to protect the Legal Aid Fund from fraudulent applications and, equally importantly, making sure that a defendant’s liability to make a contribution to their defence costs is calculated accurately. They will enable court staff, on behalf of the Legal Services Commission, to seek information from Her Majesty’s Revenue and Customs and the Department for Work and Pensions about a defendant’s income and capital. The powers necessary for this process were inserted in the Access to Justice Act by the Coroners and Justice Act 2009. The Committee may recall the debates we had in this place in Committee and on Report about these provisions. The draft Criminal Defence Service (Representation Orders: Appeals etc.) (Amendment) Regulations are a small but none the less important step in ensuring that defendants in the magistrates’ court—these regulations deal with the magistrates’ court only—who are aggrieved by a refusal of a representation order on interests of justice grounds have an enhanced right of appeal against such a refusal. The interests of justice test takes into account a range of factors, including whether, in the event of a conviction, the defendant faces a loss of liberty or livelihood and whether the defendant is able to understand the proceedings and take an active part in court. The Government understand that there will be situations in which an initial refusal of a representation order is subsequently found to be incorrect, such as when a defendant provides further information to strengthen their application. In order to preserve the element of judicial scrutiny that is vital in deciding an interests-of-justice test, the new draft regulations provide that a refusal to grant a representation order on interests-of-justice grounds can be reviewed in the first instance by a member of the magistrates’ court staff, with a further appeal to the court in the event that the initial refusal is upheld. It might be helpful if I pause briefly to explain that a second bite of the cherry used to be available to a defendant. When responsibility for granting representation orders was transferred from the courts to the Legal Services Commission, my department provided for appeals against a refusal to grant a representation order to be heard in all instances by the court. This was done in response to comments that the Government took on board during the passage of what became the Criminal Defence Service Act 2006. These draft regulations restore the position of a defendant to the position that obtained prior to the enactment of that legislation. Not only do the regulations enhance the appeal process that is available to a defendant, but equally importantly they free up the time of the courts to concentrate on the efficient and timely disposal of cases. I hope that the Committee will consider this a positive move. In our view, these two sets of draft regulations are a necessary and important step in developing robust support for the work of the magistrates’ courts and Crown Courts, and I commend them to the Committee.