In a scathing attack on the Criminal Defence Service Bill, Roger Smith argues that its proposals may leave criminal defence practitioners out of pocket


The draft Criminal Defence Service Bill and its accompanying consultation paper is about as unimpressive a document as you can get from a government department. Its spelling mistakes and grammatical errors demonstrate, only too well, the haste in which it was conceived. The reasonableness of its fundamental proposals – delegation of legal aid decision-making to solicitors and the re-imposition of contributions – is negated by sheer shoddiness of thought and execution.



Legal aid lawyers will remember contributions in criminal cases. They were abolished by the Access to Justice Act 1999. The cost of collection little more than matched what was collected. And they had another downside. Year after year in the 1990s, they led to the qualification of the accounts of the Lord Chancellor’s Department. On one celebrated occasion, there was a near riot between the Public Accounts Committee and the then permanent secretary, whose air of languid elegance and lofty understanding of the practical difficulties was taken for unacceptable arrogance and unforgivable defiance.



The difficulty in seeking and documenting contributions from criminal defendants is that some are not honest; others live in an informal and cash economy and the rest are not sufficiently together to provide their tax returns, P60s or payslips, as envisaged by this consultation paper. Magistrates’ courts muddled through as best they could. Legal aid is essential to courts, as much as clients, to keep cases moving at a satisfactory speed. But the courts were never able to satisfy the auditors that they had saved every penny.



The consultation paper makes no reference to all this history. It argues, as if it were a new idea, for the means and merits tests of legal aid to be delegated to the Legal Services Commission and then to solicitors. And there is a sting in the tail. Any contributions deemed to have been collectable will be deducted from legal aid remuneration to the lawyers.



The idea of passing decision-making to solicitors actually came from Lord Mackay in a more thoughtful publication in 1996, ‘Striking the Balance: the future of legal aid in England and Wales’. However, he accepted that there should be a right of appeal, ultimately to ‘a specialist panel of experienced practitioners’.



This consultation paper shows no sign that the Department for Constitutional Affairs (DCA) considered its proposals from the point of view, still less the rights, of defendants. The right to legal aid is protected by article 6(3)(c) of the European Convention on Human Rights. Everyone has the right ‘to defend himself in person, or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’.



The basic right to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal’ is also guaranteed in article 6. This applies not only to criminal cases but also to the determination of ‘civil rights and obligations’. Thus, there should be access to such a hearing over the decision to give legal aid itself. Characteristically, there is no indication in the document that the DCA, the lead department in government for human rights, has considered the application of the convention.



The DCA has no intention of setting up a network of potentially expensive tribunals. It wants to do things on the cheap. So much so that all of its models for a means test involve the defendant in making a one-off payment. It recognises that solicitors might find it difficult to accept periodic weekly payments, as the magistrates’ court used to do. The problem is that the DCA is proposing contributions that could reach £2,000. If you fail the income test by £5 a week then it will take you eight years before you can pay the full contribution. This is so impossible that it cannot have escaped the attention of the DCA and the only explanation for putting it forward is the cynical intention to get solicitors to pay, instead of clients.



Each of the three models for a contributory system proposed by the paper has significant problems and will be a nightmare for solicitors to manage. If implemented, it would appear that all would add to the ‘poverty trap’. This is what happens when people have incomes just above means-tested benefits. They can find they lose more than one pound for each pound they earn in withdrawn benefits and tax. The proposed capital and income limits are not linked to those of surrounding benefits.



The Parliamentary Select Committee on Constitutional Affairs is investigating these proposals and a better version may emerge. Meanwhile, there is an interesting comparison to be made between the approach taken under Lords Mackay and Falconer. DCA ministers have to cover subjects from legal aid to the fate of Guernsey or the workings of Welsh devolution. The department has lost its clarity of focus. This paper is a poor advertisement for abandoning the office of Lord Chancellor.



Roger Smith is director of the law reform and human rights organisation Justice