§ 7.45 p.m.
§ Lord McIntosh of Haringey
rose to move, That the draft regulations laid before the House on 26th March be approved [25th Report from the Joint Committee].
The noble Lord said: My Lords, these amendments make two changes. The first is to change the time at which a representation order takes effect when the applicant has appealed against a refusal of funding. The second is a small group of technical amendments which are needed to support the bringing into the Criminal Defence Service of appeals from the Financial Services and Markets Tribunal.
First of all, on the timing point, at present when a defendant is refused a criminal representation order by a court he can appeal by making a fresh application to the same court. Regulation 6 of the CDS (General) (No.2 ) Regulations provides that a representation order takes effect from the date the court receives the fully completed application.
448 Where the defendant has had to apply a second time, this means that his representation order takes effect only at the time he made the renewed application. This was not the position in the previous legal aid system. Regulation 44(7) of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 allowed pre-grant costs to be paid where in the interests of justice work had to be done before representation had been granted.
Regulation 3 of this instrument amends the existing CDS (Representation Order Appeals) Regulations to restore that position. It provides that, where a second application has had to be made, any resulting representation order takes effect from the date the original application was received. This applies to all appeals in any court dealing with criminal matters.
I turn now to the financial services amendments. I would like to give some background on the procedure to which they relate. The Financial Services and Markets Tribunal was established on 30th November 2001 and deals with matters referred following a decision of the Financial Services Authority against an individual for market abuse. Applicants to the tribunal are helped by a legal assistance scheme which provides help for persons unable to afford the cost of legal advice and representation.
Appeals from the tribunal go to the Court of Appeal (Civil Division). However, the nature of the work—and in particular the fact that it can involve heavy fines—means that public funding has to be provided as if this were criminal work. This is to comply with our ECHR obligations.
At the moment, funding from the CDS is available only for cases in the Criminal Division. Parliament has already passed a number of regulations that remove this distinction and allow CDS funding to be used in either division, as appropriate. The amendments in Regulation 4 support this by making similar changes to the way appeals against a refusal of funding are dealt with. Specifically, they allow the necessary renewed application to be made to the head of the Civil Appeals Office, as with the original application.
A person appealing to the Court of Appeal will not be means tested. Funding will be subject to the interests of justice test. Again, as with other criminal representation, the court will be able to order defendants to repay some or all of the cost of their defence. I beg to move.
Moved, That the draft regulations laid before the House on 26th March be approved [25th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
§ Lord Goodhart
My Lords, we on these Benches are perfectly happy with these regulations and have no objection.
§ Lord Kingsland
My Lords, for the reasons given by the noble Lord the Minister, we also support these amendments.
On Question, Motion agreed to.