Criminal Defence Service Bill [HL]

I agree with the noble Lord, Lord Goodhart, that this is probably the most important amendment. As I am not a lawyer and am more of a simple soul, I have some difficulty with the noble Lord’s very eloquent description of what he is seeking to do. The Bill seeks to ensure that people are represented in the interests of justice—that is important—and determines who pays for that representation. The whole basis of the Bill is that those who can afford to pay for their defence costs should do so. We are talking about the magistrates’ court. I appreciate that the noble Lord probably holds different views about the Crown Court. I shall say something about that in a moment. The whole principle behind the Bill is that where individuals can afford to pay for their defence, they should do so. The noble Lord will recall that on Second Reading we discussed what would happen if people were acquitted and so on. But if we altered that, this would not be the Bill that the Government intended to put forward. I do not think that any reading of Article 6 would mean that you override a means test. The article states that you should ensure that legal aid is available where the interests of justice require that defendants should be represented and they cannot afford to pay. We were clear about that and that is certainly the view of the Joint Committee. My interpretation suggests that the Bill fits absolutely into that category. I also do not agree that what we are trying to do with paragraph 5(4) would seek to restrict the interests of justice test; that is not our intention at all. It allows us to make regulations to provide that the interests of justice tests are always met in certain circumstances, not to say that they are not met. But I shall look at it again to ensure that it meets our intention. It is a straight transfer across, and hence the negative resolution. That is categorically what we were seeking to do. I should say to the noble Lord that we plan to create an escape from the universal means test so that, for those defendants involved in the most expensive magistrates’ courts cases, a more forensic assessment is   made of their ability to pay. In that way we shall ensure that those who can afford to pay for their representation do so. That is an important proviso. The fundamental principle remains that those who can afford to pay should pay, given that the average costs in the magistrates’ court are around £500. Also, it is highly unlikely that for cases heard in the Crown Court we would propose an all-or-nothing scheme in the way we have here. Obviously, typical costs in the Crown Court are much higher. We are concerned to make sure that those can pay should do so, but equally we are determined to ensure proper access to justice. Indeed, we shall consider further costs in the Crown Court in the next group of amendments. The fundamental principle of the Bill is that, having looked at the interests of justice test, the question then becomes one of who pays. The means test will determine who pays, and that to provide anything that says, ““But there are many circumstances where legal aid should foot the bill instead””, would be to drive a coach and horses through the basic intent of the Bill. We accept that exceptional circumstances of the kind I have indicated can arise—the most expensive cases—and that it is important to look at those critically. We are not seeking to design a scheme whereby people’s incomes and outgoings are not assessed fairly and properly, thus leaving them in a difficult position. However, it is also true that people sometimes choose not to be represented, as is their choice. It is not for the Government to say, ““Because you choose not to be represented, we will pay””. In my view that would not be appropriate. Therefore, on that basis and on the   basis of my words on paragraph 5(4) and the regulations that will relate to it, I hope that the noble Lord will feel able to withdraw his amendment.