Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013

Lord Beecham Excerpts

Tuesday 26th February 2013 Grand Committee

[Lord Beecham]

I will deal first with the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013. Again, I have a series of questions that arise partly from the drafting and partly from my ignorance. Again, I trust that the Minister will be generous enough to reply, if not today then subsequently.

I begin with Regulation 9, which deals with the withdrawal of determinations by the court and prescribes that the court before which criminal proceedings are listed may withdraw determinations in certain circumstances. I draw attention in particular to Regulation 9(c), where a reason would be that the provider named in the representation order that recorded the original determination declines to continue to represent the individual. The previous two conditions I can quite understand; first, the individual declines to accept the determination terms that he was offered—arguably, that is not unreasonable—and, secondly, the individual requests that the determination is withdrawn, which is also reasonable. However, I do not understand why, if the provider named in the representation order declines to continue to represent the individual, the determination should be withdrawn unless that determination relates specifically to that advocate. If that is the intention, it should perhaps be clearer, but if it is broader than that it would presumably leave the party unrepresented. Perhaps that needs some clarification.

Regulation 11 says:

“The … court may make a determination … only if it has considered an application made in accordance with”,

the subsequent paragraph. To comply with that, the application must,

“be made by the individual seeking the determination”—

that is obviously straightforward—

“be in writing; and … specify what the relevant court is being asked to determine and the grounds upon which it is being asked to do so”.

My question relates to whether that process is covered by legal aid or advice, or whether the individual is simply left to make his own representations. For some defendants, that could potentially be a matter of considerable difficulty. What is the process to facilitate the making of an application by an individual in those circumstances?

Regulation 12 identifies the right to select a provider, except for a number of categories—or, rather, the other way round; it limits the choice except for a number of categories. The first one is that,

“the provider … is employed by the Lord Chancellor to provide criminal legal aid”.

I find it a curious word to use, that the Lord Chancellor purports to “employ” advocates on behalf of a defendant. To me, that has connotations that might be a little invidious, bearing in mind the recent decision of the courts that recorders and part-time judges are deemed to be employed by the Lord Chancellor and therefore are required to be included in the pension scheme. If employment is to be used in this context, might that not also lead to some potential complications in relation to the status of people “employed” by the Lord Chancellor and possibly even lead to them being included in some sort of governmental pension scheme? The wording needs some explanation.

Regulation 13 deals with the position where there are co-defendants. Under these circumstances, the regulations prescribe that,

“the right of an individual … does not include the right to select a provider who is not also instructed by the individual’s co-defendant”—

in other words, to have two advocates as opposed to one—

“unless the … court or the Director determines that … there is a conflict of interest between the individual and that co-defendant; or … there is likely to be a conflict of interest”.

Again, I ask whether there is any process of appeal against such a decision. After all, the question of whether a conflict of interest might exist would not necessarily be straightforward. What is the process for determining in these circumstances whether there is likely to be a conflict?

Curiously, the regulation then goes on to provide that Regulation 13(1), the basic provision about instructing co-defendants,

“does not apply where the provider selected by the individual is an advocate”.

I simply do not understand what that means. This may be a failing on my part, but I do not understand the purpose of that provision.

Finally, I come to Regulation 16 which deals with criminal proceedings before a magistrates’ court. With a limitation to which I will refer in a moment, on proceedings before a magistrates’ court,

“the Act does not include a right to select an advocate”.

I do not know why that should be the case—I do not know whether it is a new or an existing provision—but it would seem to require some explanation. Why should a defendant not have the right to select an advocate?

The proviso in the regulation says:

“The relevant court may determine that the individual can select an advocate”,

on two conditions. The first is that,

“the proceedings relate to an extradition hearing … or an indictable offence”;

and the second that the,

“court determines that because there are circumstances which make the proceedings unusually grave or difficult, representation by an advocate would be desirable”.

One would have thought that in any extradition proceedings, and on most indictable offences, it would be almost a matter of course that the appointment of an advocate would be desirable. What are the circumstances in which it is thought that it would be inappropriate for an advocate to be selected by the defendant? By definition, these look to be significant matters. Again, what is the procedure to appeal any such decision? Supposing the court was to find that, in its view, these proceedings were not,

“unusually grave or difficult”.

That is very largely a subjective judgment. What is the purpose of this and why are the Government going to these lengths to put barriers in the way of a defendant selecting an advocate?

Happily, I have much less to say about the other two sets of regulations. Indeed, I have nothing to say on one set at all. However, in respect of the Civil Legal Aid (Costs) Regulations, there is a point to question. First, I noticed that there was no consultation on these regulations, which is a slight surprise—although it is fair to say that I think no specific question was asked in response to the original consultation. Nevertheless, I would have thought it sensible to have invited comment on the draft regulations.

Finally, we come back to the matter of timing. Paragraph 9 of the Explanatory Memorandum says that guidance is,

“not being prepared specifically on this instrument”,

but that:

“A programme of training and guidance is being prepared by the Legal Services Commission to support the transition to the new arrangements. This will be … available to legal aid providers ahead of the commencement of the Act on 1 April 2013”.

What exactly has happened about this? To what extent has training taken place and has it been in conjunction with the Bar Council and the Law Society? Will the profession—and, for that matter, the courts—be ready as of 1 April 2013 to deal with these matters? What training and support has been given to the courts, especially the magistrates’ courts, to deal with the new regime?

[Lord McNally]

My Lords, again, I am extremely grateful to the noble Lord, Lord Beecham, for what he quite rightly termed a cross-examination. I will try my best to cover the points he raised, along with the same health warning that I gave last time, which is that if I find on reflection that I have not fully covered the point he raised, I will write to him and make that letter available in the Library of the House and to interested parties.

On the withdrawal of a determination under Regulation 9(c), the relationship between a defendant and a solicitor could break down, for example, so legal aid might be withdrawn but that would not leave the party unrepresented. They could apply for transfer to a new firm. Regulation 11(2)(c) applies, for example, where an individual seeks a QC or two advocates, so would already have legal aid for solicitors and a junior advocate to assist. The noble Lord also asked about determinations by a court under Section 16 of the Act and pointed out that there seem to be very limited circumstances in which the court may grant representation.

The framework laid out in the Access to Justice Act 1999 is different from that laid out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under the Access to Justice Act, the default position is that the court can grant representation. However, with the rollout of means tests to magistrates’ courts and later to Crown Court, the circumstances in which the court can grant representation have gradually reduced. The responsibility for granting representation has therefore gradually passed to the Legal Services Commission—although, in practice, Her Majesty’s Courts and Tribunals Service staff make the decision. The Criminal Defence Services (General) (No. 2) Regulations 2001 reflect that position. LASPO reflects that shift, and the default position is that it is for the Director of Legal Aid Casework to decide whether to grant representation. The court may do so only when expressly authorised by regulations. The regulations set out the limited circumstances in which a court may do so—for example, where an urgent determination is required in a case of contempt of court.

The noble Lord, Lord Beecham, queried the use of the term “employed”—people being employed by the Lord Chancellor. That is the same language as in the current regulation, and covers the staff of the Public Defender Service, currently operated by the LSC, who will be employed by the Lord Chancellor under LASPO. Is there a process of appeal for conflicts of interests under the regulations? No, there are no provisions for appeal, but the person concerned could renew the application. As to why there has been no consultation on costs of regulation, as the draft regulations substantially replicate existing cost regulations, there is no need for consultation on the precise terms. The principles are well known, used and understood.

We are confident that the programme of training and guidelines will be rolled out in advance of implementation. On the question of representation in magistrates’ courts, I explained the situation under Regulation 16. The only challenge will be via judicial review. Our experience over the past 10 years is that existing provisions work well. Both LASPO and the current thinking of the Secretary of State and Lord Chancellor indicate a move on representation via legal aid.

The Secretary of State for Justice has asked whether access to criminal legal aid is being given in a way that provides the right balance between the needs of justice and the needs of the public purse. The Ministry of Justice has begun work on how we might find a better balance between costs and the needs of justice, and we will bring forward proposals and changes in due course. In the mean time, though, as I say, these regulations very much reflect present position, with the minor shifts that were involved in LASPO. In those circumstances, I commend them to the Committee.