Criminal Defence Service Bill [HL]

moved Amendment No. 5: "Page 3, line 6, after ““Regulations”” insert ““shall make provision for exceptions from sub-paragraph (1) or (2)(a) if the interests of justice so required and””" The noble Lord said: In moving Amendment No. 5, as corrected by the Deputy Chairman of Committees, I shall speak also to Amendments Nos. 6 and 9. This group of amendments is designed to ensure that there is an ““overriding interests of justice”” test to ensure that no one is excluded from legal aid when the interests of justice require it. Of all the amendments to be moved today, those in this group are the most important. I was somewhat encouraged to hear the Minister say that she will tell us more about the Government’s views on the interests of justice, but we shall have to wait to see what comes out of that. We cannot assume at this stage that what comes out will be satisfactory. If it is satisfactory, of course we will be delighted. The interests of justice test is a requirement of Article 6.3.d. of the European Convention on Human Rights, which states that everyone charged with a criminal offence has the right,"““if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require””." When a person does not satisfy the means test, it is difficult to see that the interests of justice would require him to get legal aid—although I can envisage some scenarios where the interests of justice would require it.—but it is very easy to see that a rigid means test such as the one proposed by the Government could exclude legal aid when the interests of justice plainly require that it be given. Circumstances will vary widely and there is a real possibility that people who on the face of it have quite substantial incomes but who also have considerable outgoings, not all of which are recognised by the regulations, would in practice be unable to obtain legal aid when they could not afford to pay for representation out of their own income. The Minister may say that the Act which this Bill is to become will have to be interpreted so as to be compatible with the Human Rights Act and that any regulations which did not allow for an override of the eligibility limits where the interests of justice required it would be defective and therefore invalid. We would welcome it if the Minister did say that but, even so, I would prefer to see the override on the face of the Bill. If the Minister is not prepared to accept that Article 6 would override a strict eligibility limit, it is essential to amend the Bill to ensure that there is to be an override. Amendments Nos. 5 and 6 seek to put the override on the face of the Bill. Amendment No. 9 seeks to delete Clause 2(4), thereby retaining the original paragraph 5(4) of Schedule 3 to the Access to Justice Act. That paragraph states:"““A right to representation shall always be granted in such circumstances as may be prescribed””." Plainly, that wording cannot be used to restrict the interests of justice test. It can be used only to say that in certain circumstances the right to representations must be granted. In other cases, of course, the standard interests of justice test will remain. The new wording, replacing old paragraph 5(4), which appears in Clause 2(4) of the Bill, states that there will be substituted for the words in the 1999 Act:"““The grant of a right to representation shall be taken to be in the interests of justice in such circumstances as may be prescribed””." That wording can be used to restrict the interests of justice test. I believe that to do so would be wholly unacceptable. Therefore, that new wording should be left out. The alternative to removing new paragraph 5(4) would be to require any regulations made under it to be approved under the affirmative resolution procedure. That is why paragraph 5(4) is referred to in Amendment No. 4. However, I would strongly prefer to leave out subsection (4) of Clause 2 altogether. The Delegated Powers and Regulatory Reform Committee accepted the statement in the memorandum of the DCA, set out at page 40 of its first report in the present Session, that the amendment to paragraph 5(4) is   merely consequential and does not confer new regulation-making powers. I believe that that comment is misleading. I do not say that it is deliberately so, but it is in fact misleading. I believe also that it misled the Delegated Powers and Regulatory Reform Committee. There is the vital difference that under the new paragraph   5(4), as I have already said, an order could be made to define the interests of justice in a more limited way than the one in which the court would on its own interpret that expression. That could not have been done under the existing paragraph in Schedule 3 to the 1999 Act. Here there is plainly a significant difference and I therefore invite the Minister either to undertake to drop new paragraph 5(4) or to amend it so that it cannot be used to restrict the natural interpretation by the court of the expression ““interests of justice””. As I say, I believe that this is an amendment of considerable importance because it is absolutely essential to ensure that the interests of justice test, as interpreted by the courts, should continue to govern the right to legal aid in criminal cases; otherwise, regulations would be non-compliant with Article 6 of the European convention. I beg to move.