Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013

Lord McNally Excerpts

Tuesday 15th October 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, the draft Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013 amend the Legal Aid (Information about Financial Resources) Regulations 2013 that came into force on 1 April this year. The draft regulations make provision in relation to requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport to facilitate a determination for the purpose of legal aid that a relevant individual’s financial resources include an interest in a motor vehicle. This amendment is intended to support the Criminal Legal Aid (Motor Vehicle Orders) Regulations 2013 that came into force on 30 July this year. These provide for mechanisms of enforcement in relation to unpaid contributions towards the cost of criminal legal aid in the Crown Court imposed under the Criminal Legal Aid (Contribution Orders) Regulations 2013.

The motor vehicle orders regulations authorise the magistrates’ court to order the clamping and sale, through motor vehicle orders, of an individual’s vehicle when the contribution required to be paid by the individual towards their Crown Court legal aid costs is overdue. Before granting a motor vehicle order, the court must be satisfied that the defendant owns the vehicle, and it is for this purpose that the amendment before the Committee is significant. Requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport, in practice the DVLA, in accordance with the amendments made by these draft regulations will enable the director to confirm whether an individual is the registered keeper of a particular vehicle. If the individual is the registered keeper of that vehicle, the director will also be able to request any particulars contained in the register in relation to that vehicle. An applicant for legal aid is required to indicate in their application whether they, alone or with anyone else, own a motor vehicle, and if so, the registered vehicle number of that vehicle. The individual’s statement that they own a vehicle, taken together with the DVLA’s confirmation that the individual is the registered keeper of the vehicle, will be a way of evidencing that the individual owns the vehicle for the purposes of the motor vehicle orders regulations.

These draft regulations also add the Armed Forces Independence Payment to the list of prescribed benefits in the schedule to the 2013 regulations. If an individual is in receipt of a prescribed benefit, the director may request information about the benefit from various other government departments, including the amount the individual is receiving. Due to the timing of the secondary legislation that created the AFIP, it could not be included in the schedule when the 2013 regulations were first made; it was always intended to add the AFIP to the schedule at the earliest opportunity.

Having accurate information about the financial resources of an individual who is applying for or in receipt of legal aid is an important part of ensuring that only those eligible for legal aid receive it and that those who can afford to contribute to the cost of their legal representation are made to do so. I should stress that the proposed data sharing arrangements with the DVLA will in no way impact on defendants, solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on court users. As was the case with the original 2013 regulations, nothing in these regulations dilutes the Government’s obligation to protect an individual’s personal information and to maintain confidentiality.

These draft regulations support the Government’s proposals to make the legal aid system operate more efficiently, and to improve confidence in the system as a whole by ensuring that those who are entitled to help receive that help while those who can afford to pay, do so. I beg to move.

[Lord Beecham (Lab)]

My Lords, I begin by welcoming the noble Lord, Lord Bates, to the Front Bench. I am not sure that he has a relevant interest—to quote the appropriate phrase, perhaps—in these regulations, but it is good to see another Peer from the north-east occupying a position of some influence, I hope, with this Government.

The regulations refer to an “interest” in a motor vehicle. That can take more than one form and need not necessarily be ownership. Presumably, somebody might be the keeper of a vehicle which is rented or hired, or indeed owned by somebody else, and I am not quite clear how the regulations would apply in those circumstances. It is also interesting that the explanatory notes refer to the fact that details of the scheme were to be published in an addendum to the consultation response alongside an updated impact assessment. I do not know whether that has been published and I confess that I have not been able to find an impact assessment. Will the noble Lord indicate what the potential impact is, for example, in terms of the number of vehicles that might be expected to be reported and, for that matter, the number of vehicles about which action might be taken, presumably in taking possession of those vehicles?

Will the noble Lord also indicate the approach that will be taken in relation to possible removal or disposal of such a vehicle and what criteria would be likely to be applied? For example, if someone, whatever his involvement in an offence might be, was dependent on having transport, for example, to work, would that be a material factor or would the process be directed simply at taking into account a financial recovery? Presumably, if a contribution was sought from somebody, he would be expected to dispose of any financial interest in the vehicle, which could conceivably cause difficulty. Is a process to be directed to that question? What other impact is anticipated in relation to the application of the order?

In relation to the other part of the regulations, given the concern about members of the Armed Forces, I find it a little surprising that a benefit specifically directed to, presumably, members of the Armed Forces who have suffered a disability, possibly in the course of their service, should be taken into account. Will the noble Lord inform your Lordships about the rationale for that? I appreciate that it might be regarded as analogous to the disability living allowance but one might have thought that, if a disability is incurred in the armed services, a rather different view might be taken. Will the noble Lord indicate the potential impact of this, in terms of the number of cases which it is envisaged might arise on an annual basis? Obviously, we are not going to take a point about these regulations, except to note that they seem to have been in force for some seven months before coming to this House for consideration. It does seem an inordinately long time after regulations have come into force to proceed with the process of parliamentary approval. None the less, we as an Opposition are not going to take any point against them as such.

[Lord McNally]

My Lords, I thank the noble Lord for that helpful intervention. On the point about publication, the impact assessment was published on 5 July 2013. On discretion, the primary legislation already puts in a number of safeguards. The court may make a clamping order only if it is satisfied that a defendant’s failure to pay the amount sought was due to wilful refusal or culpable neglect. The clamping order must not be made unless a defendant has an interest in the vehicle, and a clamp may not be fitted to a vehicle that displays a current disabled person’s badge. So safeguards are there. The court may grant an order only if the individual has an interest in the vehicle. If the individual shares a vehicle with their spouse or partner, this would be sufficient. However, we would not go after a vehicle which was the subject of a hire-purchase agreement, for example.

I appreciate the noble Lord’s probing. I was one of the initiators of this tightening of the regulations, because I had in my mind the idea of the drug-pusher who was kingpin of his estate and who seemed to be able almost to defy the law by driving around in a swanky car. It might at least send a message to those who saw him as a role model if his swanky car was taken off him. However, I understand that that needs to be carefully balanced against other matters in law—and I think that it is balanced.

On the Armed Forces matter, AFIP is a benefit for Armed Forces veterans to protect them from any possible financial detriment as a consequence of the replacement under the Welfare Reform Act 2012 of disability living allowance with personal independence payments from 8 April 2013. Like the DLA and PIP, AFIP is a benefit which is deducted from the gross income of an individual when their eligibility or liability to make a contribution towards the costs of legal aid made available under Part 1 of the Act is being calculated. It is therefore four-square with other benefits in that respect. With those assurances, I commend the regulations.

Motion agreed.