Criminal Defence Service Bill [HL]

moved Amendment No. 10:"Page 3, line 27, at end insert—" ““(   )   No provision in this section shall enable the Lord Chancellor to extend means testing to the Crown Court without further primary legislation.”” The noble Lord said: Amendment No. 10 concerns the Government’s stated intention to make delegated rules under the Bill for similar cost arrangements to be incorporated in the Crown Court. Our position on Second Reading was to say that if such changes are to be made in the Crown Court they should, as a matter of principle, be made in primary legislation, not by means of delegated legislation under primary provisions to change the rules in magistrates’ courts. We were further fortified in this by a number of noble Lords, among them the noble Lord, Lord Thomas of Gresford, who pointed out that the considerations that bear on costs in the Crown Court are substantially different from those that bear on costs in magistrates’ courts. He listed, as examples, the complexity of legislation; the habit of the CPS of producing over-elaborate indictments; the manner in which requests for additional evidence are made in Crown Court procedure prior to the trial taking place; listing arrangements; and—dare I say it?—the method of payment for lawyers in Crown Courts that certainly do not provide a disincentive for trials to stop early. For all those reasons, the factors that the Minister would have to consider range well beyond the scope of the Bill. Therefore, at this stage, I intend to continue to ask the noble Baroness to change her mind about having primary legislation to deal with what is, in effect, a separate issue. However, in her by now legendary letter the Minister said one or two very helpful things. In particular, at the end of the paragraph that deals with the question of the Crown Court she says:"““I am prepared however to ensure that we work up the details of the Crown Court scheme to a level that matches the current description of the magistrates’ court scheme and make that available to the House after the Summer Recess””." I take it from that that, when we get to Report, the Minister will have fulfilled that undertaking and provided your Lordships with what looks as if it will   be a pretty detailed set of proposals. I also take the point that, even if there was separate primary legislation, the meat of what it did would inevitably have to be contained in regulations. Has the Minister considered tabling on Report an amendment that would, in effect, be primary legislation introducing the Crown Court stage? I say that because I see nothing in the Title that would prevent that. The Criminal Defence Service Bill is:"““A Bill To make representation funded as part of the Criminal Defence Service””." I see nothing in either the Short or Long Title of the Bill that restricts it to magistrates’ courts. If I am right in saying that the details of any Crown Court cost provisions would, in large measure, have to be incorporated in delegated legislation, why could not the noble Baroness extend the scope of the Bill so that in primary form it covered both the magistrates’ courts and the Crown Court? There is one very telling reason on the Minister’s side for dealing with the two matters together. If we put the Bill in place solely for the magistrates’ courts, there is a danger that there will be introduced into the system a bias so that many more people will opt to go to the Crown Court, because at the moment the cost provisions will be more favourable than in the magistrates’ court. That is a strong argument for trying to deal with the two matters together. If the noble Baroness is working all that up over the summer vacation, there are powerful arguments for rectifying the position fully by enlarging the Bill to cover the Crown Court. I beg to move.