Criminal Defence Service Bill [HL]

moved Amendment No. 4:"Page 2, line 24, leave out ““““paragraph 2A or 4”” and insert ““““17A or paragraph 2(1A), 2A, 3B, 4 or 5(4)””" The noble Lord said: Amendment No. 4 requires various regulation-making powers that this Bill inserts into Schedule 3 to the Access to Justice Act to be exercised using the affirmative resolution procedure. Under the Access to Justice Act, regulations under Schedule 3(4) already require the affirmative resolution procedure. Clause 1 (8) of the Bill adds to that regulations under new paragraph 2A(3) and our amendment adds a number of others. The first is new Section 17A of the Access to Justice Act, which provides for contribution orders to be made. The rules about the making of contribution orders will be made under regulations. We believe that those regulations should require the affirmative resolution procedure. The Conservatives go beyond that: their amendment requires not the affirmative resolution procedure but primary legislation. I have a good deal of sympathy with that, but the Bill provides the principle, and the details will have to go into regulations anyway. The problem that I see at present is the complete uncertainty of the basis on which contribution orders will be made. The framework document says nothing of any real substance or significance about them and, in effect, is asking us to buy a pig in a poke so far as contribution orders are concerned. If, on Report, there is no more information than we have now about the nature of contribution orders in the Crown Court, I shall be tempted to support an amendment calling for primary legislation on that, on the grounds that it was premature to put contribution orders into the Bill at all when the whole process was so inadequately thought out. If we have more information on Report, I shall still say that, as the Select Committee on Delegated Powers and Regulatory Reform recommended, at least the first set of regulations under new Section 17A should require the affirmative resolution procedure. The next addition we have made is new paragraph   2(1A). The Government have accepted that regulations giving power to the Legal Services Commission to grant legal aid in criminal cases require the affirmative resolution procedure under paragraph 2A. Surely it is the logical corollary of that that the power to deprive the court of a power to grant legal aid should also require the affirmative resolution procedure. I accept that the existing paragraph 2(1) does not require the affirmative resolution procedure, but that should be regarded as a defect that requires correction. Paragraph 2A is, of course, a government proposal, which we welcome, for the use of the affirmative procedure. Paragraph 3A creates powers that, we believe, are appropriately exercised under the negative procedure. That is not included in our amendment. Paragraph 3B will introduce a financial eligibility rule. I accept the fact that the regulations may be detailed and that the power to make regulations may need to be exercised from time to time to make minor changes that would not justify the affirmative resolution procedure, but I agree with the Select Committee on Delegated Powers and Regulatory Reform that it is important to have a proper debate when the first set of rules is introduced. I accept, therefore, that committee’s proposal that the affirmative resolution procedure should be used on the first introduction of rules but not thereafter. Finally, there is new paragraph 5(4), which is set out in Clause 2(4). It is best dealt with not in this group of amendments but in the next, in which I will deal with the interests of justice test. I hope that I can leave that addition to the list of those requiring affirmative procedure until then. I beg to move.