Criminal Defence Service Bill [HL]

moved Amendment No. 3:"Page 2, line 22, at end insert—" ““(   )   In paragraph 4, the words ““Except where regulations otherwise provide,”” are omitted.”” The noble Lord said: In moving Amendment No. 3, I shall speak also to Amendment No. 7. Amendment No. 11, which is also in this group, is in the name of the noble Lord, Lord Kingsland. The amendments that we have tabled and the amendment tabled by the noble Lord, Lord Kingsland, would ensure that there was always a right of appeal from the refusal of legal aid, whether on merits or on eligibility. At present, there is always an appeal under Schedule 3 to the Access of Justice Act. No exceptions have been made to that, but, of course, the question of eligibility for legal aid does not arise. The new arrangements will, however, provide that there is no appeal, as such, at all. Instead, as set out on page 10 of the framework document published by the DCA, if there is a refusal on the merits, the applicant for legal aid can apply for review by the court before which the proceedings have taken place. That will be a review on what I might call a judicial review basis. That is, the court cannot substitute its own decision but can act only   if there is a procedural flaw or if the decision is irrational—that is perhaps an oversimplified summary of the powers under judicial review. If the refusal is on eligibility, the review is not a review by the court but is simply an internal administrative review. In that case, there is a right to seek judicial review of that decision on very limited grounds only, such as, in particular, a change of circumstances or a mistake in the calculations. That is wholly inadequate. There should always be a right of appeal to the court, and it should be an appeal in the proper sense of the word, not simply a review. It should apply not only to appeals on the ground of the merits of the case, but on the ground of eligibility. The Government may say that eligibility under the plans forecast in their framework document will be simply a matter of applying a mathematical formula and that therefore there will be no question on which an appeal is necessary, but it is never as simple as that. There are bound to be serious issues on, for example, the computation of income and the question of deductions, which can raise issues of fact as well as of law. Furthermore—as will be raised in a debate on a future group of amendments tabled in my name—we believe that it is essential to have an interests of justice override to any mathematical formula for determining eligibility. So we need to have a proper appeal, and the amendments would achieve that. Amendment No. 3 would remove from paragraph 4 of Schedule 3 to the Access to Justice Act 1999 the words,"““except where regulations otherwise provide””." That makes the requirement in paragraph 4 to provide for an appeal an absolute requirement, not one that can be excluded by regulations. Furthermore, if there must be an appeal, that replaces any need to provide for a review of the decisions, and Amendment No. 7 would remove what would then be the superfluous power to provide for reviews. Restoring a proper right of appeal to a court is essential, if the present Bill is to provide proper justice for those who are seeking legal aid for the defence of criminal cases. I beg to move.