Criminal Defence Service Bill [HL]

We have had an interesting debate and I am grateful to those noble Lords who have raised issues around the question of appeals and reviews. I have listened carefully to what has been said and I will consider bringing forward amendments to clarify the appeals process that we are proposing against decisions on the interests of justice. I hope that by making this clear at the outset, I am able to allay some of the concerns of noble Lords. As noble Lords know, we originally proposed that the   courts should have the power of referral to invite the Legal Services Commission to consider its decision, but I recognise the strength of the arguments I have heard today and I believe that greater consideration needs to be given to the way that that particular part of the appeals process should work. I will ensure that noble Lords know our precise thinking before Report so that they can table amendments if they are felt to be appropriate, although I hope that there will not be any. I wish to explain how we have got to where we are in the appeals/review process. Amendment No. 3, tabled by the noble Lord, Lord Goodhart, removes the existing power in the Access to Justice Act 1999 to prescribe cases in which an applicant cannot appeal. Noble Lords with a longer history than I have with the Access to Justice Act will know that it replaced the Legal Aid Act 1988. Section 21(10) of that Act gave a power, not a duty, for regulations to provide for appeals. In practice, under that Act appeals were not available in every case; for example, a right of review of merits decisions was not available if an applicant had renewed his application, nor for certain summary offences. There was no right of review of eligibility decisions; applicants could only renew their application and could not appeal. Since the Access to Justice Act, there have been no circumstances where it has been necessary to prescribe the cases where no appeal would be given. That said, the power is there should it be needed, and we seek to preserve that opportunity in the Bill. There is no question of the power ever being used to implement regulations that would seek a wholesale ban on the right of appeal. It is very important to have that on the record. We recognise that the right of appeal is a fundamental element of any new system that we might introduce. I support that position rigorously and will reiterate it to the House, if required, on Report. We must also ensure that our legislation across the board enables us to protect ourselves against the potential for abuse of the system. For example, we would not want applicants whose application for representation had been declined to be able to submit countless appeals against that decision. We seek to retain the power to deal with that kind of potential abuse, should it ever be necessary or desirable to do so. However, noble Lords will know that, should we wish to do that, it will be subject to the affirmative resolution procedure and therefore any such regulations would have to be approved by the House and another place. That is the basis on which we have the power. It is to protect us against any potential abuse, and reiterates what happened in the Legal Aid Act 1988. Amendment No. 7 is also tabled in the name of the noble Lord, Lord Goodhart. The power to make regulations to review decisions refers specifically to the assessment of financial eligibility. We contend, and I do not think that noble Lords have disagreed, that that is a matter of fact rather than opinion. We believe that the implementation of proper review procedures will ensure that factual errors are swiftly identified and addressed without the need for a full-scale appeal. That provides more than sufficient protection for applicants who argue that their eligibility has been incorrectly assessed. The noble Lord, Lord Kingsland, drew attention to the difference in the system in asylum and immigration tribunals, for which I had responsibility before the election, as he will know. As I said in my letter, I contend that the big difference is that we are asking judges to look at the potential success of an appeal; in other words, to look at the merits of the case, not the individual’s financial basis. A system that simply looks at an individual’s income and assesses whether he meets the clear criteria for the magistrate’s court is an administrative function that properly belongs in the service-level agreement with the LSC and should be reviewed on the basis of questions such as whether the person wrote the figures down incorrectly, whether he did not understand the income based on the payslip, or whatever. That is a wholly different from the asylum and immigration tribunal, which deals with the problem of never-ending appeals, because an individual who wishes to remain in this country has the incentive to continue appealing. The question, therefore, is how we disincentivise the system to ensure that we have justice but that we simply do not continue with appeals. It is to ask, on the basis of the information available, whether the appeal would have a chance of success. We believe that that is properly conducted in the judiciary. That is the difference between the two. So I argue that it is very important that we differentiate what we are describing here. I have already indicated that we will be looking at the interests of justice test. The amendment in the name of the noble Lord, Lord   Kingsland, puts in the Bill what is currently prescribed in secondary legislation and makes sure that the appeal always lays to the court. We have accepted that the court should, in certain circumstances, exercise a role in appeals. I have indicated that the Government will consider whether that involvement should be more than is currently set out in the framework document. I do not agree that the court should consider every appeal. The scheme we have in place under the Act relies on an appeal process by way of reapplication. If court officials decide in favour of the reapplication, legal aid may be granted. It is only if they are minded to stick with their original decision that the courts get involved. I think that that is a sensible way to use court resources because if it goes back to the individual and there has been a mistake, a different decision is made. I see no reason why the court needs to be involved on that basis. I reiterate that we have been very clear and careful about Article 6 of the Human Rights Act, as the noble Lord would expect. We will look very carefully at the interests of justice test. We will consider the basis of appeal again and at what needs to appear, but not necessarily in the Bill; I think that the noble Lord, Lord Kingsland, might accept that some of this is best placed in regulation. I have already undertaken to look at that properly. An administrative process has a different basis. The service agreement ensures that we get consistency across the system. The ambition is that those who have very successfully looked at the systems the past—that is, those based around the courts—will continue to do so but within a consistent framework, which is very important in ensuring that justice is done. On the basis of what I have said, I hope that noble Lords will feel able to withdraw their amendments.