HL Deb 26 January 2004 vol 656 cc82-5

7.33 p.m.

Lord Bassam of Brighton rose to move, That the draft regulations laid before the House on 15 January be approved [5th Report from the Joint Committee].

The noble Lord said: My Lords, I move this Motion on behalf of my noble friend Lady Scotland. In 2001 the Lord Chancellor established a new regime to improve control of the legal aid costs incurred by defence legal representatives in the most expensive criminal cases. Those changes were introduced in response to concern that the proportion of the criminal legal aid budget taken up by the most expensive 1 per cent of criminal cases had risen from 40 to 49 per cent of expenditure on criminal legal aid. Very high cost criminal cases currently amount to £280 million out of the total Crown Court expenditure of £569 million.

Following a successful pilot scheme, regulations were made under the Access to Justice Act 1999 to introduce a new mechanism to improve case management and control costs in those cases. Evidence from the pilot scheme suggests that it would achieve savings of 31 per cent.

A criminal very high cost case is defined in regulations to be one where the trial is expected to last 25 days or more or where defence costs for any defendant or group of defendants represented by the same firm are expected to be £150,000 or more.

The Legal Services Commission has established a specialist unit to manage defence legal aid costs in the most expensive criminal cases. Its aim is to secure quality defence services to act in complex and expensive criminal prosecutions at value for money to the taxpayer. From April 2004, the commission's Criminal High Cost Cases Unit (CHCCU) will manage all cases that meet the statutory definition of a criminal very high cost case through entering individual case contracts with the defence legal representatives. The unit also manages all very high cost serious fraud cases. Representation in such cases is limited to approved firms meeting minimum standards that are members of the Specialist Fraud Panel established by the commission.

The unit takes over management of a case by entering an individual case contract with the legal representatives once it is satisfied that they have the requisite experience and capacity to handle the case. A dedicated contract manager will then be assigned, and the legal representatives are required to produce a case plan. At that stage, the case is divided into stages. Regular reviews of progress against the case plan are undertaken by the contract manager. Payment is made at fixed hourly rates and is linked to satisfactory completion of the work at each planned stage.

The Criminal Defence Service (Choice in Very High Cost Cases) Regulations 2001 provide for the selection of new legal representatives where public funding has been granted by the court in a very high cost criminal case and the CHCCU or the existing legal representatives do not intend to enter an individual case contract.

The amendments to this instrument have several effects. First, they provide that the commission determines any question on whether a case meets the definition of a very high cost criminal case. That ensures consistency with the existing provisions of the Criminal Defence Service Funding Order 2001 and puts it beyond doubt that the commission's judgment on this issue is final.

Secondly, they extend the list of circumstances in which the Legal Services Commission is no longer required to fund representation by the client's current legal representative. Specifically, they provide that when the current solicitor representatives are not members of the Specialist Fraud Panel and the case is a very high cost fraud case, the commission is no longer required to fund representation. Either the commission or any or all of the current representatives may serve notice that they do not propose to enter into a contract. That aims to ensure that clients in very high cost fraud cases receive quality defence representation from specialist firms that are approved panel members. The existing regulations also provide a mechanism for a client to change solicitors where appropriate.

Thirdly, they enable the court as well as the commission to amend the client's representation order where the client has selected a new representative. That is to enable greater flexibility and to prevent any delay to ongoing criminal proceedings.

The Law Society, Bar Council and other representative professional bodies have been consulted during the preparation of the instrument. The regulation changes form part of a wider package of changes designed to reinforce the current framework for managing high cost criminal cases. That includes steps to strengthen the existing contractual and regulatory framework. Some aspects of the proposed changes are still under discussion. However, the elements set out in the order have not given rise to any opposition on consultation, and both the Law Society and the Bar Council have been notified of our intention to proceed with this part of the package. In my view, the provisions of the regulations are compatible with convention rights. I beg to move.

Moved, That the draft regulations laid before the House on 15 January be approved [5th Report from the Joint Committed].—(Lord Bassam of Brighton)

Lord Thomas of Gresford

My Lords, I declare an interest in that I am engaged at present in a case that falls within the provisions on very high cost cases. It is my first experience of such a case, and I must say that I am very concerned about the bureaucracy involved.

We have little criticism of the order, but I shall outline my reservations about it. First, one is presented with a contract running to 19 pages, and one must guess how much time one will expend on a case. In the case on which I am working there are eight defence teams, each with a case manager, some of whom are at the headquarters of this unit. I do not see the need for that.

Furthermore, the regulations provide that if anything new is presented to the court, it is necessary for the consent of the case manager to be obtained before one can look at it. For example, in the case in which I am engaged at the moment, if the prosecution produce a plan, in theory it is necessary for the trial to stop while each of the teams contacts the case manager to get his permission to look at the plan. Similarly, any notices of additional evidence require, in theory, the consent of the case manager before they are considered.

All this is ridiculous, and it is ignored by those who are engaged in such a case at the risk of never being paid for the work that they are doing. This scheme is in danger of running into the sand through the enormous overload of bureaucracy that now surrounds it. I welcome the fact that there is machinery to appoint new counsel contained in these regulations, but, overall, I am concerned that this scheme will not succeed.

Lord Kingsland

My Lords, these regulations, interalia, provide that any question of whether the case fulfils the criteria of a very high cost case is to be referred to the Legal Services Commission.

As I understand it the commission, as contract manager, takes a number of decisions about the status of cases, including the decision on whether a criminal case falls into the category of a very high cost case.

Can the Minister assure the House that a process exists for practitioners to appeal against decisions by the Legal Services Commission, which classifies cases as very high cost?

Lord Bassam of Brighton

My Lords, I am grateful to noble Lords for their contributions to this short debate. I listened with interest to the noble Lord, Lord Thomas of Gresford. I am grateful to him for rightly acknowledging his personal interest in the subject.

The experience of the noble Lord, Lord Thomas of Gresford, gives a valuable insight into this issue. We are concerned to ensure that bureaucracy does not interfere with proper case management. I am sure that the noble Lord would accept that proper case management is important. Case management helps to manage the costs. However, there are regular opportunities for the commission to meet with representatives from the Bar Council and the Law Society to look at the issue raised by the noble Lord. We are keen to see that bureaucracy levels are kept within limits and that the audit process is more precise and not overbearing.

The best that I can say to the noble Lord, Lord Thomas of Gresford, is that I am grateful to him for expressing his concern in the way in which he did. It is an important issue, and we clearly need to keep it under review. Perhaps the noble Lord could share through his professional association some of those concerns and help us in our shared objective of ensuring that bureaucracy costs do not get in the way of a sensible case management approach.

There is currently no appeal procedure to cover the point raised by the noble Lord, Lord Kingsland, but it is a valid point which is worth reflecting on. I will write to the noble Lord on that point. We are happy to consider representations on that issue. I am grateful to the noble Lord for having raised it in the way in which he did.

On Question, Motion agreed to.