POSITION OF SERVICE PROVIDERS AND OTHER PARTIES (Hansard, 22 June 1999)

§ The Solicitor?General
I beg to move amendment No. 18, in page 16, line 17, leave out second 'of' and insert 'to'.

Mr. Deputy Speaker
With this, it will be convenient to discuss Government amendments Nos. 19, 20, 22, 45 to 69 and 83.

§ The Solicitor-General
This group of amendments clarifies the powers to prescribe the procedures for courts carrying out functions under part I of the Bill, particularly in relation to granting rights to representation in criminal cases. It also includes a number of consequential and drafting amendments. Let me explain.
Amendment No. 19 provides a general power to prescribe which member or officer of a court is able to exercise the functions of any court or tribunal under this part of the Bill. For example, it would enable regulations to prescribe the procedure for consideration of an application for a right to representation. In the case of the Crown court—assuming a right to representation has not been granted already by the magistrates court—the power might be exercised by a judge, though not necessarily the trial judge. For the sake of flexibility, however, it might be appropriate to provide, as now, for an authorised officer in the Crown court office to consider these applications.
Similarly for the magistrates court, amendment No. 53 gives the power to prescribe when a single justice or justices' clerk can make decisions about the right to representation. The first part of the amendment would enable the powers of the magistrates court to grant or withdraw a right to representation to be exercisable by a single justice. The general rule-making power in section 144 of the Magistrates' Courts Act 1980 can then be used to delegate this to justices' clerks and their assistants.
Amendment No. 20 provides the flexibility to prescribe different provisions for different areas, to accommodate, for example, pilot arrangements.
Streamlining the legislative provisions for delegation in that way will mean that there will be no further need for section 49(1)(j) of the Crime and Disorder Act 1998, which can be repealed when the relevant provisions of this Bill are in force. That is achieved by amendment No. 83.
999 Amendments Nos. 61, 66 and 67 clarify the appeal procedure against an order to repay defence costs under clause 17. This is to be by way of judicial review.
Clause 17 does not expressly provide for a route of appeal. Decisions of the Crown court that relate to a trial on indictment cannot be judicially reviewed or subject to appeal by way of case stated. This has been held to prevent any form of appeal against certain decisions about legal aid contribution orders. Decisions relating to a sentence may of course be appealed to the Court of Appeal, but recovery of defence costs orders should not be seen as part of a sentence. It is possible, for example, that regulations could prescribe for exceptional circumstances in which an order could be made before the end of the trial or following acquittal.
In order to avoid doubt about the status of an order under clause 17 and the relevant route of appeal, amendment No. 61 makes it clear that these orders are not part of the sentence and therefore not appealable to the Court of Appeal. Amendment No. 66 amends the Supreme Court Act 1981 to allow clause 17 orders to be challenged by way of judicial review or case stated. Amendment No. 67 is consequential on amendment No. 66.
Further consequential alterations are contained in amendment No. 69.
Amendments Nos. 49 and 52 are drafting amendments to make it clearer that a right to representation will usually continue through from the magistrates court to the Crown Court.
A right to representation includes a right to advice and assistance as to an appeal. As currently drafted, it is an open-ended entitlement. Amendment No. 22 would allow regulations to prescribe time limits for the provision of advice on appeal after which the right would lapse. Regulations on the scope of advice and assistance could be made under clause 13 to allow for cases where advice was needed at a later date.
Finally, amendments Nos. 18, 45 to 48, 50, 51, 54 to 60, 62 to 65 and 68 achieve drafting consistency by always referring to the right as a "right to representation".