Criminal Defence Service Bill [HL]

I take a minor degree of comfort from the Minister’s explanation that the intention of new paragraph 5(4) is not to make it easier to restrict the right to legal aid, rather it is simply to carry over the previous power to declare that in certain circumstances legal aid should be granted and that the interests of justice test should be assumed to have been satisfied. Obviously, I hope that the department will reconsider the drafting of Clause 2(4) and will be willing to consider a redraft of it to make that point clear. However, that does not deal with the main issue of the group of amendments, which is the necessity for an override provision whenever we are considering financial eligibility. I have no quarrel whatever with the Government’s proposal to introduce rules that will mean that those who can afford to pay for their own defence in criminal cases in fact do so. The problem is that in any case where you have regulations which provide a calculation for a means test—and in particular where, as the Government propose, that those regulations will be fairly simple so that the calculation will be easy to make—you will inevitably end up with some cases where the applicant will be refused because he exceeds the eligibility limits, although if you look in reality at the applicant’s situation, he has no possibility of actually paying for his own legal representation or of doing so without hardship. I have not thought it necessary to give examples. Anyway, they would vary according to the regulations that the Government have brought in. Inevitably, there would be circumstances in which peoples’ failure to pay their perfectly legitimate outgoings would cause serious damage to them, yet those outgoings would not be recognised by the regulations. The noble Baroness looks puzzled by that. I should have thought that it was a statement of the obvious.