Orders of the Day — Criminal Defence Service Bill [Lords]

House of Commons, 13 December 2005.

Bridget Prentice (Labour, Lewisham East)

I beg to move, That the Bill be now read a Second time.

The Bill seeks to establish a legal aid system that balances fairness with administrative simplicity and that is based on affordability yet is sensitive to an applicant's individual circumstances. In order to achieve that, we will transfer the power to grant legal aid representation from the courts to the Legal Services Commission, and we will introduce a test of financial eligibility.

The Bill and the scheme that it seeks to deliver are a straightforward evolution of the founding principles of legal aid as they were first expressed by the Rushcliffe report in 1945 and by the subsequent Legal Aid and Advice Act 1949—introduced by a Labour Government. From its earliest design, legal aid was intended to be a wider expression of the beliefs that lay at the heart of the welfare state. A "judicare system" was to be established whereby the services of lawyers could be made available to the poor as well as the rich. The Bill reasserts those founding principles, as well as creating a robust and sustainable legal aid system that is not only capable of responding to the demands of the modern justice system, but of enhancing and supporting it. It also builds on an existing raft of reforms that have already had a significant impact in the area. The Access to Justice Act 1999 modernised the legal aid system and, since then, we have continued to improve and refine the performance of legal aid.

But costs have continued to rise: as indeed they have throughout the history of legal aid. In 2004–05, spending on legal aid as a whole exceeded £2 billion, a rise of £513 million since 1997–98. To put it simply, year on year, the cost of legal aid has risen, on average, at almost twice the rate of inflation. That trend cannot be allowed to continue.

Since 1997, there has been a large growth in criminal legal aid where expenditure has risen by £458 million. There is little doubt that a good proportion of that spending has proved invaluable in protecting the rights of the vulnerable, ensuring access to justice and maintaining the efficiency of the criminal justice system, but the Government also have a wider responsibility to protect the interests of the poor, the socially excluded and, ultimately, the law-abiding members of society. Legal aid resources are finite and only one part of our social agenda, which includes health and education.

David Davies (Conservative, Monmouth)

I have listened with great interest to what the Minister has said, but is not she saying—in a roundabout way—that the Government got it all wrong a few years ago and that they are now making a gigantic U-turn?

Bridget Prentice (Labour, Lewisham East)

The system that was in force before we came into government was decrepit, convoluted, complex and overly bureaucratic. We introduced a system that swept all that away, but we were not aware how many people would take advantage of the new system. That is why we need to look again at the issue. We have an obligation to live within our means and to ensure that the available funds are targeted in the fairest and most strategically beneficial way.

We must make our money work for us and the Bill seeks to do just that by rebalancing and refocusing legal aid expenditure to ensure that we not only protect the rights of those who find themselves prosecuted under the criminal law, but we fund law-abiding citizens who may find that they need to protect or enforce a civil right.

Despite the refinements to the proposed scheme that the Bill empowers, the core principles of the policy, and the Bill itself, remain largely unaltered from the draft that the House saw originally.

David Burrowes (Conservative, Enfield, Southgate)

The Government refer to the fact that they are focusing funds. Although the Bill seeks to make further savings of £35 million in respect of the lower courts, has not the Legal Services Commission already accepted that those costs are under control? Indeed, the Department for Constitutional Affairs has predicted that they are on the decrease. One respects the fact that legal aid costs in general have increased, but the budgets of lower courts are under control, so should not the true target for cost-cutting be high-cost cases?

Bridget Prentice (Labour, Lewisham East)

The hon. Gentleman may have been in the Chamber during Constitutional Affairs questions, in which case he would have heard me say that we are targeting high-cost cases. The Bill tries to ensure that we have a much fairer system in both the lower and higher courts. The Bill will also cover the Crown Court.

There are two key enabling powers: first, the power to grant representation is to be transferred from the courts to the Legal Services Commission and, secondly, a test of financial eligibility is to be reintroduced. Clauses 1 and 2 confer those powers by amending schedule 3 to the Access to Justice Act 1999. Clause 3 creates a power to require defendants to make contributions towards the cost of their legal aid, which will be a central component of the Crown court scheme. Clause 4 makes consequential amendments to other legislation.

The scheme to be developed through those powers will consist of three distinct elements: transfer of the power to grant; means-testing in the magistrates court; and means-testing in the Crown court.

Philip Hollobone (Conservative, Kettering)

Will the Minister explain to the House why she had to sign a certificate to ensure that the legislation complies with the European convention on human rights?

Bridget Prentice (Labour, Lewisham East)

We all sign certificates to ensure that we comply with the convention. It is a good thing to do and that is why we do it. Every Bill that comes before the House has to have such a certificate. That is part of the law that we introduced and I am puzzled about why the hon. Gentleman is asking that question. Perhaps he would like to explain.

Philip Hollobone (Conservative, Kettering)

I am grateful to the Minister for allowing me to intervene again.

I understand from the helpful explanatory notes that there are particular difficulties with clauses 2 and 3, such that the Minister had to sign a certificate under section 19(1)(a) of the Human Rights Act 1998. I am not aware that that has been necessary with other recent legislation.

Bridget Prentice (Labour, Lewisham East)

I can only reiterate that it is part of the law of our country that we comply with the Human Rights Act, and we are ensuring that the Bill does so. I am happy to have signed up to the Act according to those provisions—[Interruption.] I am informed that all Ministers taking Bills through the House sign according to the same provisions in the Act. There is nothing unusual about the Bill in that respect.

I want to explain some of the things that the Bill will not do. I must emphasise that it will not affect the existing interests of justice test, which will remain an important feature of the legal aid system and all applicants will need to satisfy it. The test allows for several factors to be taken into account; for instance, whether the applicant is likely to lose his liberty when determining if it is in the interests of justice for legal aid to be granted.

It is an inescapable fact, however, that, as matters stand, every Member of the House would qualify for legal aid provided they passed the interests of justice test. I doubt that I need to remind Members about the unfortunate stream of well-publicised cases in which apparently wealthy individuals are able to claim legal aid under the current scheme. Few would disagree that such a perverse system needs to be tackled and that is precisely what the Bill sets out to do.

David Davies (Conservative, Monmouth)

Surely, we made those points four or five years ago, when the hon. Lady's Administration changed the rules and brought an end to means-testing.

Bridget Prentice (Labour, Lewisham East)

I am not aware that the hon. Gentleman was making any of those points four or five years ago, but if some of his colleagues were doing so, I was not aware of it. When the scheme was introduced four or five years ago, it was seen to be much simpler and more straightforward than what had gone before. We recognise that we made it much easier for people to obtain legal aid when they would not otherwise have chosen to do so. We are trying to get the balance right.

Under the Bill, the grant of legal aid will cease to be a largely judicial function administered by court staff and, instead, become an administrative function with judicial oversight. Responsibility for the grant will be given to the Legal Services Commission. However, the Government's intention is that court staff will remain responsible for the scheme's day-to-day operation. That arrangement will be regulated by a service level agreement between Her Majesty's Courts Service and the Legal Services Commission. A right of appeal to the court on the interests of justice test will still remain.

Jeremy Wright (Conservative, Rugby and Kenilworth)

The Minister has made it perfectly clear that the Government's intention is to reduce the demands on the criminal legal aid budget, but I am sure that she will accept that delay in the criminal justice system is a problem. What measures will the Government take to ensure that means-testing, and all that goes with it, does not delay the bringing to court of criminal cases?

Bridget Prentice (Labour, Lewisham East)

The hon. Gentleman makes an important point, which I shall come to later in my speech if he is prepared to bear with me.

The transfer of grant will allow the Legal Services Commission to exercise greater control over legal aid expenditure, as well as ensuring consistency and certainty for applicants. The proposed means test in the magistrates court will be quick and simple to administer. A simple initial filter that consists of upper and lower thresholds will be applied. Applicants whose income falls below the lower threshold will automatically qualify for legal aid, while those who exceed the upper threshold will not be eligible.

To enhance the scheme's sensitivity, however, those thresholds will not be set at a single level; they will be weighted to take account of household composition. For instance, for a childless couple, the upper threshold would be set at £34,000 and the lower one at £19,000. However, a couple with a three-year-old child would have an upper threshold of £40,120 and a lower threshold of £22,420.

For applicants whose income falls between the two thresholds, a more detailed assessment would be carried out to determine disposable income by incorporating a system of allowances covering actual housing, child care and maintenance costs. Applicants whose disposable income, when so calculated, is below a set level would be eligible for legal aid. At the moment, we believe that the disposable income threshold should be in the region of £3,156—close to that used in the civil legal aid scheme.

To place that in context, under that two-tier model for the means test, a couple with a three-year-old child and a joint gross income of £24,000 would probably be granted legal aid after completion of the detailed assessment, but a childless couple, with a similar income and therefore a far higher disposable income, would be unlikely to pass the detailed assessment and therefore would not receive legal aid.

The means test will include assets held by the applicant's partner. Since the test makes allowance for the increased cost of a two-person household, it is fair to recognise not only the full cost, but the full income of the household. However, we acknowledge the concerns of those who argue that unfairness may arise in cases where the partner has a clear contrary interest—for example, in a domestic violence case. For that reason, we will build safeguards into the new scheme to deal with such situations. Once legal aid has been granted, it will cover the entire cost of the defence.

We are aware that such a system can never take account of all possibilities. It has long been a central objective of the scheme that it is sensitive to individual circumstances and considers not only an individual's income, but his capacity to pay. To achieve that, tightly drafted regulations will detail when an applicant can request that special consideration be given to his circumstances. For example, account would be taken of the circumstances of applicants who had especially high outgoings and were genuinely unable to pay for their defence, perhaps because they cared for a disabled relative.

It is also a prime objective that the scheme causes minimal disruption to the justice system. Information on a defendant's means will be collected at the earliest opportunity after entry into the criminal justice system. In some cases, that will be as soon as an applicant is charged with a criminal offence.

David Burrowes (Conservative, Enfield, Southgate)

Will the Minister give way?

Bridget Prentice (Labour, Lewisham East)

I am just about to respond to the point made by the hon. Member for Rugby and Kenilworth (Jeremy Wright).

In a second measure to reduce delay, defendants will be able to apply for legal aid under an extended advice and assistance scheme running up to, and including, the first hearing, when a means-tested representation order will come into force. Qualification for the scheme will be determined on the interests of justice alone. That will ensure that the new system does not introduce any delay and that full advantage is taken of the natural pauses that already exist in the criminal justice process. For example, if a defendant who is charged with a relatively serious criminal offence for which he faces imprisonment is held on remand, he will appear in court immediately for a bail hearing. Should the defendant intend to plead not guilty, his trial will be adjourned to allow the defence and prosecution to prepare fully for the trial. Legal aid could then be sought in the period before the full trial started.

David Burrowes (Conservative, Enfield, Southgate)

Given that it is likely that the Bill will increase the burden on magistrates courts' staff, does it not highlight the present damaging pay dispute involving such staff? Magistrates courts have great difficulty recruiting and retaining high-quality staff, which has a profound effect on the quality of justice. Such staff will be considering the interests of justice test and implementing the Bill. Unless the Government try to resolve the problem of the pay dispute, there is a worry that there will be a profound effect on local justice.

Bridget Prentice (Labour, Lewisham East)

I hope that the pay dispute does not result in industrial action and that there will be an opportunity before the time at which that action is supposed to take place for all parties to come together to find a constructive solution. I am well aware of the situation that magistrates courts' staff face.

Magistrates courts' staff do the administration for the scheme, and their jobs will be enhanced by giving them responsibility. They perform their roles under judicial supervision at the moment. It is important for us to say to them, "Here is an administrative job that you are doing very well, and we want you to continue to do so."

Vera Baird (Labour, Redcar)

The hon. Member for Enfield, Southgate (Mr. Burrowes) is wrong to suggest that the Bill is likely to increase the administrative burden on magistrates courts' staff. Although they will have more calculating to do, which is a skill that they are used to using—despite what the hon. Gentleman said, staff in magistrates courts are actually of a high calibre—it is expected that there will be between 10 and 20 per cent. fewer applications because the means test will screen out an awful lot of people. The Bill is thus administratively neutral.

Bridget Prentice (Labour, Lewisham East)

My hon. and learned Friend makes an important point. We think that the Bill might well screen out more than 10 to 20 per cent. of applications—perhaps up to 30 per cent. of applications. I am happy to reiterate her important point that the calibre of magistrates courts' staff is high. As I said, they already carry out similar work at the moment and that is likely to continue.

The proposed Crown court scheme will use a combination of powers within existing legislation and new powers under the Bill. Applicants for legal aid in the Crown court will be assessed on financial eligibility as well as the interests of justice. In contrast to the magistrates court scheme, individuals who fail the means test will still be eligible for legal aid. However, they will be expected to contribute towards the cost of their defence. Another notable difference between the magistrates court and Crown court schemes is the proposed capital test, under which liquid assets in excess of £8,000 held in cash accounts at bank and building societies are the subject of a single, one-off contribution. As with the magistrates court scheme, aggregation of means is a feature of that model. The Government propose a phased introduction in which the magistrates court scheme is introduced first and allowed to bed in before the Crown court scheme is launched.

David Heath (Liberal Democrat, Somerton and Frome)

What is the reference date for that assessment? It would be all too easy for someone to ensure that they do not have liquid capital assets available for means-testing at a Crown court hearing if they knew that that would be a sensible thing to do in preparation for such an appearance.

Bridget Prentice (Labour, Lewisham East)

The hon. Gentleman makes a valid and important point. We will ensure that the assessment is made at the earliest opportunity, possibly at the point of arrest, before people have a chance to try to disperse their assets. I am happy to hold further discussions, however, about the best time for assessment.

Adam Afriyie (Conservative, Windsor)

We are right to be concerned that people with limited financial means should have access to advice and legal aid, but what measures has the hon. Lady considered introducing, especially in complex criminal trials involving large assets, to deal with someone from a wealthy family who may have an offshore trust or who may be the beneficiary of another trust with assets that are not necessarily visible in the UK?

Bridget Prentice (Labour, Lewisham East)

As I said, we will look at liquid assets in an individual's personal bank and building society accounts. We should think carefully about whether we want to introduce a more complex system to assess assets, as the aim of the Bill is to try to keep things as simple and straightforward as possible. In the regulations we will make sure that we can identify those assets as easily and simply as possible. As the hon. Gentleman will know, there are other laws to deal with the proceeds of crime and so on if someone is found guilty.

The new scheme is outlined in greater detail in the supplement to the framework document accompanying the Bill. In developing the Bill, the Government have not only listened to, and acted on, the findings and recommendations of the Select Committee on Constitutional Affairs on an earlier draft, but we have taken into account the considered opinions of a wide range of stakeholders. We have worked particularly closely with the Law Society to refine the means test model and produce a scheme that is both fair and sensitive to the circumstances of individual applicants without placing an undue burden on those responsible for administering the system.

We have addressed and, we believe, satisfied, early concerns voiced by the judiciary about the original appeals process. We firmly believe that there should not be an appeal to the court on the basis of financial eligibility, but we are satisfied that the case has been made that there may be an appeal to the court based on the interests of justice. However, an amendment accepted in the Lords removed the power to review decisions on financial eligibility from the Bill. Those decisions will now be subject to a full appeal to the court. That is unacceptable. Not only is it a misdirection of the courts' resources, but members of the senior judiciary agree that the means test is a wholly administrative assessment that does not require judicial oversight, apart, of course, from judicial review. We will seek to overturn the amendment in the Commons.

The Government believe that the Criminal Defence Service Bill is both innovative and practical. While we have placed a high value on measures to develop an administratively simple scheme, we have given equal importance to measures to ensure that defendants are treated fairly and consistently. The scheme will be transparent and measures will be taken so that it can be easily understood by defendants, solicitors and the court-based teams responsible for its administration. By streamlining legal aid and cutting bureaucracy we have created a strong, flexible legal aid system able to withstand the rigours of the modern criminal justice system. The new scheme will allow legal aid to continue to safeguard the rights of the vulnerable, but will also achieve maximum value for the taxpayer. I therefore commend the Bill to the House.

Jonathan Djanogly (Conservative, Huntingdon)

I begin by declaring any interests that I may have as a practising solicitor.

The Bill allows for the power to grant rights to representation to be transferred from the courts to the Legal Services Commission, introduces a means test for the grant of such funding and, where the test is met, provides for contribution orders based on means. Several amendments were made to the Bill in another place, and I pay tribute to the significant progress that was made there.

We, the Conservative Opposition, feel that access to justice is a serious matter that requires full and detailed consideration. Through the determined efforts of our noble Friends, such detailed consideration has already been possible. We welcome the restoration—by amendment in the other place—of responsibility for legal aid matters to the Lord Chancellor, as we welcome the amendments that have been made relating to appeals. I was sorry to hear the Minister say that she will attempt to overturn those at a later stage.

Vera Baird (Labour, Redcar)

I am interested to know the views of the Opposition. It is undoubtedly mostly a matter of arithmetic to establish whether somebody is in or outside the financial eligibility criteria. Is the hon. Gentleman suggesting that judicial time could be appropriately used on an appeal against that, or does he have some alternative model in mind?

Jonathan Djanogly (Conservative, Huntingdon)

I intend to discuss that in greater detail, so if the hon. and learned Lady will wait, I shall come on to it. It is important that the court should be able to hear appeals on the interests of justice test, as well as on the eligibility test, and should be able to consider those matters afresh.

The Conservative party has long been in favour of many of the measures in the Bill, in particular means-testing for those who can afford it, which the Government abolished in 2001. We opposed the abolition of the means test during the passage of the Access to Justice Act 1999, which the Bill amends. Now, after four years' experience, the Government wish to bring back means-testing. It has taken them eight years to bring back the NHS internal market and eight years to bring back grant-maintained schools, so perhaps we should be impressed that it has taken them only four years to do a U-turn on legal aid and means-testing.

The measure is basically right. Those who can make a contribution to their own defence costs ought to do so. However, we need to ensure that those who cannot make such a contribution are still properly represented and not disadvantaged within the criminal justice system. That second aspect is conspicuously missing from the Bill. The proposed means test involves a calculation to derive an adjusted level of income for the purposes of considering eligibility. Various deductions are made on a proportional basis from overall household income to reflect a client's costs. As the Minister explained, if a client's adjusted income falls between a higher and a lower threshold, a more detailed assessment is required to establish whether the client qualifies. Clients will not qualify for public funding in the magistrates court if their calculated disposable income is above £3,156 a year.

The Department has suggested that the abolition of the means test has contributed to the rising costs of criminal legal aid. As the draft Bill and consultation paper put it in 2004,

"Since the abolition of the means test many who previously would have been privately represented or who choose to represent themselves have applied for public funding."

It stated that the

"re-introduction of the means test will focus the resources on those that need help the most."

All that led the Constitutional Affairs Committee—rightly, in our view—to question whether there is enough joined-up thinking, principally between the Department for Constitutional Affairs and the Home Office, in the overall approach to criminal justice policy. It concluded at paragraph 46:

"We recommend that the Department should ensure that initiatives rolled out by other Departments, especially the Home Office, are properly costed so that their impact on the Criminal Defence Service budget can be taken into account. This is an essential feature of 'joined up Government' and needs to be done so that the Government can consider the causes of rising costs, rather than merely relying on the Department to tackle the symptoms".

It would be helpful if the Minister could give us a progress report on how that recommendation is being carried forward.

Bridget Prentice (Labour, Lewisham East)

I am happy to give the hon. Gentleman a progress report: we have introduced a legal aid impact assessment test, which is part of the regulatory impact assessment that every Department conducts when it introduces legislation. If any legislation introduced in this House impacts on legal aid, it must be funded or another way must be found to deal with it.

Jonathan Djanogly (Conservative, Huntingdon)

I thank the Minister for explaining that all legislation requires a regulatory impact assessment, which I shall discuss later in my speech.

The press briefing that the Government published in May at the time of the Queen's Speech estimated that the Bill would lead to annual savings of more than £35 million. We sincerely hope that it will, but it would be useful to hear more about how the Government reached that conclusion. After all, the original justifications for abolishing means-testing back in 1999 were that the system was too bureaucratic, which led to delays in cases being brought to trial and added significantly higher costs, and that it applied to less than 1 per cent. of applicants. It would be interesting for the House to hear how the Labour party, which abolished means-testing as a cost-saving measure, is going to reintroduce means-testing as a cost-saving measure.

In its response to the draft Bill in 2004, the Constitutional Affairs Committee concluded:

"We do not think these proposals have been properly costed. The Department has produced no convincing evidence demonstrating that reintroducing means testing would result in substantial cost savings".

We support the Bill in principle, but we want to see more convincing evidence that it will have the desired effect. Will the Minister provide more detail on the projected savings?

We want to address several other issues in Committee. For instance, concern remains about the perverse incentive for defendants to choose the Crown court in cases that may be tried either way in order to ensure a more favourable position on legal aid. That serves only to increase costs, and the matter requires further review. We are still concerned about a related aspect of the Bill, which seeks to translate the magistrates court regime in a modified form to the Crown court simply by delegated legislation. We are of the opinion that separate regimes should be introduced simultaneously for magistrates courts and for Crown courts through primary legislation to avoid uncertainty in the drafting of the regulations and the perverse incentives that I have just mentioned. We believe that those points outweigh the benefits of first appraising the magistrates court scheme.

Despite our welcoming the Bill in principle, it is a very small step towards the desperately needed reform of the legal aid system, which the Government have allowed to fall into disrepair, and much more remains to be done. The Minister's speech was short on detail on the Bill's impact—for instance, what percentage of the population will have their access to legal aid restricted by the Bill? That is why I want to address some of the broader legal issues.

The soaring cost of legal aid in England and Wales forms the background to the Bill and this debate. The problem is not new, and I concede that it is not exclusive to the current Administration, because Governments of both parties have grappled with the cost of legal aid over the past three decades or more. It is clear that the problem has become acute since this Government entered office: in 1997, the total legal aid budget stood at around £1.5 billion; this year, it is more than £2 billion, which is an increase of some 35 per cent. while this Government have been in office.

More than half of that £2 billion is spent on criminal legal aid, the cost of which has risen dramatically. Since 2000–01, there has been a significant rise in the cost to the criminal defence service of criminal legal representation in the magistrates courts. By contrast, spending on civil legal aid, excluding the cost of asylum, has fallen in real terms by 24 per cent. since 1997. That in turn has forced many high street solicitors to go to the wall, restricting access to justice for many of the most vulnerable in our society. For example, as I found out through a written question earlier this year, the number of high street solicitor firms offering representation for legal aid and family cases has decreased by more than one third in the past five years.

That is despite the Government's ambition, as set out in the 1997 manifesto, to reform legal aid and achieve value for money for the taxpayer and the consumer. Meanwhile, at this year's election the Government promised to reform legal aid better to help the vulnerable. Their predicament seems to have led to a state of paralysis, and regrettably the vulnerable are being hit the hardest due to their inability to access lawyers who take on legal aid cases.

We agree that the growth in spending on the criminal defence service has to be checked. In the words of Lord Justice Judge in his evidence to the Select Committee on Constitutional Affairs, which reported on the draft Criminal Defence Service Bill in 2004, and to which the whole House is indebted for its work in this area,

"we simply cannot work on the basis . . . that there is a tree at the bottom of the garden full of ten pound notes. There is not, and therefore there has to be some control exercised."

As the Magistrates Association put it,

"there is a large and continued increase in the amount of money spent on legal aid, and we accept that the amount available is not infinite."

We agree.

The fundamental legal aid review was announced by the hon. Member for Tottenham (Mr. Lammy) in May 2004. On 19 July this year, I made a request to the Department of Constitutional Affairs under the Freedom of Information Act 2000 in relation to the review. The relevant DCA press release stated that the review would be

"a far-reaching study into the underlying legal aid system, which will focus on how best to provide legal help to those who need it in the longer term."

Some of its conclusions were set out in the July 2005 paper, "A fairer deal for legal aid", but the Minister decided on the basis of public interest to withhold the detailed responses and conclusions contained in an internal report. I called for an internal review of that decision, which resulted in certain limited material being made available. Nevertheless, the contents of the internal report remain elusive. That is entirely unsatisfactory, and one has to query why such information is being withheld. It seems only to add further weight to the concern that the legal aid system is in a state of crisis. The fact that fewer than two fifths of the population now qualify for legal aid sits rather uncomfortably with the concept that everyone is entitled to access to justice so that they can enforce and defend their legal rights and so that the Government and other powerful bodies can be held to account or contested where necessary.

The ridiculous extremes of bureaucracy involved in the legal aid process must continue to be broken down, and where savings measures are introduced, the savings must be real. The Government give in to the ever-present pressure to come up with short-term reforms designed to control the budget, but what is needed is a long-term strategy, particularly to reduce the amount spent on high-cost cases. The following figures represent the crux of the problem, which the Government are not adequately addressing. The half dozen most expensive criminal legal aid cases in 2003 amounted to no less than 25 per cent. of the total criminal legal aid budget. One per cent. of the highest cost cases amounted to between 40 and 50 per cent. of the total criminal legal aid budget.

The problem is not that the Government are spending too little money but that cases need to be managed more efficiently. There needs to be clarity about what legal aid is spent on. The Crown Prosecution Service needs to manage cases more effectively, as do judges. Dealing with the management issues at an early stage will help to avoid even bigger problems and spiralling costs later on. Yet the Government seem utterly unable to get to grips with the problem, which is not new.

Vera Baird (Labour, Redcar)

The hon. Gentleman is making a very poor point. He said that very high-cost cases accounted for between 40 and 50 per cent. of all criminal legal aid spending. That is so, as it was in 1996, when the Conservatives were in office. Since then, it has gone up from 42 per cent. to 49 per cent., but we are tackling it, whereas the hon. Gentleman's Government did nothing whatever.

Jonathan Djanogly (Conservative, Huntingdon)

Eight years later, here we are talking about what needs to be done, and the best that the hon. and learned Lady can say is that the last Conservative Government did not get it right.

Vera Baird (Labour, Redcar)

Would the hon. Gentleman like me to tell him over what period of time the same proportion of high-cost cases took up criminal legal aid? It was for many years while the Conservative Government were in office. We are trying to tackle that. I repeat that the Conservative Government did nothing about the problem for 18 years. We are trying to do something. How can he accuse us?

Jonathan Djanogly (Conservative, Huntingdon)

With barristers and magistrates going on strike, law firms closing down week after week—

Vera Baird (Labour, Redcar)

rose—

Jonathan Djanogly (Conservative, Huntingdon)

No, I shall not give way to the hon. and learned Lady again.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. We cannot have two hon. Members on their feet at the same time. The hon. and learned Lady must know whether the hon. Gentleman who has the Floor is giving way to her.

Jonathan Djanogly (Conservative, Huntingdon)

Thank you, Mr. Deputy Speaker.

Vera Baird (Labour, Redcar)

Will the hon. Gentleman give way?

Jonathan Djanogly (Conservative, Huntingdon)

No, I shall not. The hon. and learned Lady has already intervened several times. The fact that the Government have to have a Home Office Parliamentary Private Secretary as the only Labour Back Bencher in the Chamber reflects the Labour party's attitude to legal aid and the crisis in the system.

Vera Baird (Labour, Redcar)

rose—

Jonathan Djanogly (Conservative, Huntingdon)

I shall not give way.

I repeat that the Government appear unable to get to grips with the problem. It represents a significant failure on the part of the Department for Constitutional Affairs. It must know that the reintroduction of means-testing will not solve the problem or make significant savings in relative terms.

The Law Society said in its submission to the fundamental legal aid review of January this year that early skilled diagnosis would have the most benefit in controlling the budget and prevent straightforward issues from becoming more significant and therefore a greater burden. It recommended the early identification of problems, and access by clients to appropriate services through a single point of entry offering legal aid services at different levels, or planned referrals. That will enable firms and advice agencies that already exist to take on extra rolls and expand their business. Does the Under-Secretary agree that that is a sensible way forward? If so, will she assure us that something will be done to implement it?

Work needs to be done on proposals for competitive price tendering. If such proposals are to succeed, we cannot have a system that runs a high risk of being no more than a cost-cutting exercise, which will inevitably reduce access to justice and the quality of advice and representation that is available to legally aided clients. Given the range of quality accredited suppliers already in existence, where is the justification for jeopardising quality purely to save costs? Representations have been made to us that small, often ethnic, inner-city firms will have to close shop because of the proposals. The high street criminal practice could become almost defunct.

The graduated fee scheme could have the perverse effect of encouraging barristers to drag out cases so that the longer they last, the more money they receive. It is also worth pointing out that, although civil and criminal legal aid constitute different pots, the Government appear to want to examine the whole. Losing control of criminal legal aid budgets has meant a collapse in civil legal aid, excluding asylum, by 24 per cent. in real terms since 1997 as criminal expenditure has risen by 37 per cent. We need imaginative solutions to achieve a sustainable legal aid system and an application of basic management skills to criminal case management.

Another concern is the falling number of solicitors who choose criminal law defence work as a career. Work needs to be done to increase participation. The number of solicitors' offices that provide criminal defence services has fallen by 25 per cent. from 3,500 in April 2001 to 2,651 in September this year. Legal aid practitioners should be of a high quality and receive proper compensation. In a survey that the Law Society conducted, 50 per cent. of trainee solicitors said that, all things being equal, they were likely to pursue a career in legal aid work. However, the practical reality is that only 8 per cent. said that they were indeed likely to pursue a career in legal aid. Financial uncertainty is a particular problem for young barristers, who have not even the guarantee of a meagre salary.

Given that legal aid rates have not increased for approximately eight years, the idea of attaching the tag of "fat cat" to the average criminal lawyer is perverse. Indeed, the problem is so bad that criminal practitioners tell me that very few wish to practise criminal law. Of those who do, many want to become prosecutors, who get a decent salary.

Perhaps the Under-Secretary could describe the pilots for state defenders. I understand that they are even more expensive than private defence solicitors. Firms also need some predictability in their businesses. Many face immense pressure as they try to deal with new proposals and the complexities of the current system in a hostile environment.

In relation specifically to criminal law, the increased complexity of the law as well as trial length must be taken into account, as the Bar Council has argued that those are the central drivers in increasing costs. It has cited annual criminal justice Bills and other legislation, which, over the past decade, have produced major changes in almost every area of legal practice and procedure. Two important examples are the Human Rights Act 1998 and the Proceeds of Crime Act 2002.

Changes to sentencing guidelines and the increase in the number of offences that carry a prison sentence are further factors. In cases in which imprisonment is the likely consequence of a conviction, the interests of justice test in assessing entitlement to legal aid is more likely to be satisfied, causing more frequent grants of rights to representation. Imprisonment is increasing; indeed, the prison population today stands at about 77,000, an increase of 28 per cent. since 1997.

The effects of the Government's overall criminal justice policy must also be taken into account. For example, targets to increase arrest rates and the creation of a vast number of new criminal offences are contributory factors. That point was made by the hon. and learned Member for Redcar (Vera Baird) in her very worthwhile comments in a recent Westminster Hall debate. Surely the message is that, if we are going to charge more people, send more people to Crown court trials and lock more people up, the costs of processing the accused—including legal aid costs—will rise.

Criminal solicitors are threatening to close up shop and criminal barristers have gone on strike, yet the Government seem unable to see that we need provisions to address the legal aid problems that are handicapping some of the most vulnerable and disadvantaged people in our society. What is needed is not simply to restrict the number of people being helped by the legal aid system, as the Bill proposes, but what was proposed in the Government's own report, "A Fairer Deal for Legal Aid", which was published in July this year. That is, a legal aid system that will be

"fair and effective, providing access to justice for all who need it".

Why can the Government not respond to their own message? If the Minister thinks that we, or the legal profession, will accept the Bill as the answer to the legal aid crisis, she will have to think again.

Vera Baird (Labour, Redcar)

I congratulate the Government on the Bill, which I welcome. I also congratulate those in another place who did a very good job of teasing out the Bill's problems and giving them a good airing so that they could be addressed. It is not appropriate to arrogate that activity to just one side, which the hon. Member for Huntingdon (Mr. Djanogly) sought to do. It is perfectly clear that the Liberal Democrats played a role, and that the hon. Gentleman's colleague and the Liberal Democrats in the other place were very complimentary about my noble colleague, Baroness Ashton. It seemed to have been a job well done all round.

It is a pity, therefore, that the atmosphere of trying to bring the Bill to fruition in everyone's interests cannot be maintained in this House, and that there has to be inaccurate cat-calling from the Conservative Front Bench. That is utterly unnecessary, and the hon. Member for Huntingdon really does get a great deal wrong. It is odd to hear him talk about the virtues of means-testing—the Conservatives usually speak of its evils—when its purpose is to get people out of poverty. The Tories took the extraordinary line only a few years ago of criticising the Government when they were doing their best to improve bureaucracy by abolishing a means test.

I also want to put the hon. Gentleman right on another point. There are plenty of applicants for the criminal Bar. My own chambers has hundreds of applicants per year.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Will the hon. and learned Lady give way?

Vera Baird (Labour, Redcar)

I will in a moment. I know that the hon. Gentleman has an interest in this matter.

My chambers has hundreds of applicants every year, and I am aware of a number of young people who have now done all their training for the criminal bar and who would desperately like to get into it. They also have an ethic of public service, which helps. I wonder whether the hon. Member for Rugby and Kenilworth (Jeremy Wright) is aware of that.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I certainly am. The hon. and learned Lady is right to say that I have an interest in these matters. I practise, as she did, at the criminal Bar. I understand that plenty of people might apply to chambers such as hers, to be at the criminal Bar. However, as my hon. Friend the Member for Huntingdon (Mr. Djanogly) said, the issue is how many people are going to be able to afford to practise at the criminal Bar, when there are many more lucrative options elsewhere in the legal profession. Does not the hon. and learned Lady agree that we should be attracting the brightest and best to criminal law, rather than allowing them to go elsewhere?

Vera Baird (Labour, Redcar)

If the Bar, made up as it is almost totally of white, upper-middle-class males, had some years ago paid attention to attracting the best, from whatever sector of society, the current imbalance in the Bar and judiciary would not prevail. The hon. Gentleman's point is not without foundation, however. There has been an understanding that because the rewards at the top of the Bar are good—as he knows—women and men together should just tolerate what there is at the bottom. That is not really a practical picture any more, but the Government have their eyes on that. In my debate in Westminster Hall, on which the hon. Member for Huntingdon commented and which the hon. Member for Rugby and Kenilworth attended, there was a clear understanding on all sides, particularly in the Minister's response, that what she called the "baby Bar" should, in the eyes of the Government, be given improved circumstances. That, of course, is what we all want.

There is a certain amount of agreement, and it is false to sow, as the hon. Member for Huntingdon did over the preceding 20 minutes, some sort of queer animosity about matters that are not in the Bill. That causes a fair amount of concern. He talked, for instance, about it being the Government's fault that there is a perverse incentive for barristers, who are paid a refresher for every day longer that a case continues, and who therefore have no interest in shortening it. Of course, that is not the Government's fault; it is the basis on which barristers have been paid for a long time. I recall it from when I went into business as a barrister, roughly at the time, in an unfortunate coincidence, that Lady Thatcher became Prime Minister. I noted then that it was a curious way of paying people at the Bar. It needs to be attacked, but it is nothing to do with this Government.

The hon. Member for Huntingdon must face the fact that many of the things that he highlighted, such as the way in which barristers are paid and the excessive amount that very high-cost cases take from the criminal legal aid budget, go back many years. It is not sufficient for him to say that the Government have not tackled those issues over the past eight years when his Government did not even try to tackle any of them. He shakes his head, but I am willing to sit down and listen to him tell me in an intervention exactly what his Government did about very high-cost cases, recruiting people of all classes to the Bar and trying to remove the perverse incentives about which he now complains. I am waiting for his intervention.

Jonathan Djanogly (Conservative, Huntingdon)

It is not a question of what this or that Government did, but of how we can move things forward. The hon. and learned Lady misrepresents what I said in my speech. I did attack the Government where they needed attacking, but I also provided a series of pointers to how the position can be improved. I think that she agreed with me to that extent. Perhaps we can move forward now.

Vera Baird (Labour, Redcar)

If the hon. Gentleman reads his speech he will realise that he said that magistrates are on strike, which is utter rubbish, and that the Bar is on strike, which is utter rubbish—strike action was threatened for a very few days but it was accepted that Lord Carter of Coles understood their interests. The hon. Gentleman misrepresented that. He also blamed the Government for the way in which those at the Bar are paid. It was a lot of rubbish and it was quite unnecessary. I do not know why he cannot focus on the issues, which are that the Bill will promote some savings but a good deal more fairness. He ought, like his colleagues in the other place, to welcome and try to include it.

The Bill provides a reasonably simple formula, which, in magistrates courts, where costs are quite low, will exclude from legal aid those whose income is above a particular level. The hon. Gentleman did not appear to have digested the fact that there is a separate system for the Crown court, which is now in a supplement to the framework document. That different model will allow for the much higher costs in a Crown court, with a barrier over which one cannot get legal aid and a barrier under which one gets it whatever, with those in the middle being dealt with through a refined and fairly reasonable, on the face of it, basis of means-testing. That comes with the important proviso, on which everyone should be able to focus, that someone who is acquitted, all other things being equal, should be entitled to a defence costs order. That is also subject to the proviso that there must be an interests of justice override where the sheer mathematics are such that the interests of justice are not represented in giving a grant of representation.

There is also the issue of fairness—fairness to us all because we all pay in the end, and legal aid must be well organised, and also an element of fairness in the establishment of equivalence with civil legal aid. There have always been contributions on a means-tested basis for the purpose of civil legal aid, but that has not always applied to criminal legal aid, which seems slightly odd. The theory may be that because criminal defendants have no option but to be in that position, they should not be required to contribute, but defendants in civil cases often have no option either. It is odd that both groups have not always been subject to means-testing.

The other important aspect of fairness is clear: no one who needs representation should not be given it. I am very pleased that in the House of Lords everyone coalesced around the interests of justice test, and that it is to stay.

The hon. Member for Monmouth (David T.C. Davies) levelled a criticism at the change of heart, but I do not think that it should have been a criticism. The idea behind the scrapping of the means test was pretty simple. The costs in magistrates courts are very low. The state probably pays less if it bears them than if it must engage people to calculate a means test on a very complex basis in order to recover a small amount at a rate of perhaps a pound or two a week. That must have seemed a very reasonable position to take. Moreover, there was a huge increase in legal aid certificates that could not rationally be linked to the changes, almost as if there had been carte blanche for everyone to receive a certificate. That has led to anomalies. No one could possibly cheer when well-paid footballers receive legal aid for antisocial behaviour without making a contribution, and there is clearly a need for change.

David Burrowes (Conservative, Enfield, Southgate)

When I was practising as a criminal solicitor, it was proposed that means-testing should be abolished. Solicitors did not propose its abolition; they, indeed all practitioners, were saying "Let us deal with the implementation and administration of the scheme." It was the Government who went ahead and abolished it. We, or anyone else, could have told them that applications would increase. It does not require sophisticated judgment to conclude that once those accused of drink-driving offences, for instance, are allowed legal aid there will be an increase in the number of certificates.

Vera Baird (Labour, Redcar)

I am afraid that the hon. Gentleman is completely wrong. The notion that the Government made the change without consulting the professions and other stakeholders widely is totally incorrect.

David Burrowes (Conservative, Enfield, Southgate)

Did they listen?

Vera Baird (Labour, Redcar)

Of course they listened. I cannot comment on whether members of the hon. Gentleman's branch of the profession said what he tells us they said, but I was active in the magistrates court at the time.

David Burrowes (Conservative, Enfield, Southgate)

It was made clear to me, as a member of the London Courts Solicitors Association, that the problem related to the practical implementation. The position is improving greatly, but the Government seemed to decide, no doubt in the interests of finance, to abolish means-testing without considering what the effects might be. That is symptomatic of their tendency to pigeonhole decisions—to make them at one end without seeing the probable outcomes at the other.

Vera Baird (Labour, Redcar)

It really was not as clear as that. If the hon. Gentleman shows me some brilliant document from the London Criminal Courts Solicitors Association suggesting a better mechanism for means-testing, I shall be very surprised. There was undoubtedly wide stakeholder consultation on the proposal, and it was a realistic possibility that it would be cheaper not to means-test than to means-test. However, there was inconsistency in the ways in which various magistrates courts were granting certificates. In some areas, it was seen as an invitation to open the floodgates; in others, that did not apply to the same extent. A number of certificates were issued that would not have been issued before, but there was no match between the change and the increase.

David Heath (Liberal Democrat, Somerton and Frome)

Surely at the time there was a trade-off between increasing the speed of legal proceedings by removing what was seen as an obstacle and a potential increase in costs. The view taken at the time was that removing the means test was likely to involve more benefit than disbenefit. Now it appears that the opposite view has been taken.

Vera Baird (Labour, Redcar)

Yes, that played a significant role but, in addition, removing that layer of bureaucracy was intended to be cheaper. Clearly, there are unacceptable occasions when someone who is very well to do receives legal aid, which has pointed to the need for a new look at the whole system. I hope that we will end up with a smarter, slicker, neater means test. It should not hold back justice significantly, especially given the high calibre of the people who will implement it through the service level agreement. The scheme should be coherent and consistent. The LSC has the background responsibility, but it will be delegated to those on the front line who have the practical skills. Therefore, one hopes for consistency and simplicity of application, so that we can get the best out of it.

I said that I thought that the scheme was a combination of fairness and savings. The savings are estimated to be around £35 million. Of course, they are well worth having. I guess that they will come from exclusions, from 10 to 20 per cent. fewer applications and from contributions. I do not know whether there will be any administrative savings as well, but it is key that, essentially, the same people will be involved, who will have the knowledge. I know that the Bar was worried about handing over the decisions on merits to the LSC when it was not front-line, court experienced. I think that that has been managed sensibly through the scheme.

As I have mentioned, it is imperative that we use legal aid in the civil system to ensure that we attack social exclusion. We have to disperse our available legal advice and other advice about debt and so on, and ensure that the poor, who cannot in another way obtain such advice, are resourced to get it. Many poor people do not know their rights. They are at the bottom economically, with no power of that kind to fight back. They can be pushed around by authorities, those who have better resources, organisations, Government and local government, because they do not have that power. Their rights can and will be abused if they are not given sufficient resources to have, as it were, a friend on their side who can advance their case. That imbalance must be addressed and legal aid in the civil sector is an important part of that.

It is also important that there should not be any lessening in the adequacy of support in the criminal sector. We are getting more cases to court. Surely everyone welcomes that. The conviction rate is getting better. We have better investigation, charging and review of charging. There is support for witnesses under the no witness, no justice scheme, so that witnesses have more confidence to come to court. That is what we all want—to catch more criminals, to bring them to court and, we hope, to play a role in reducing crime and the fear of crime.

That is all very good. It will inevitably increase legal aid costs, but we must keep the matter in proportion. There must not be any diminution of input into legal aid. I fear that, occasionally in these discussions, we lose sight of the fact that often people who come to court are not guilty and they need support to make their case. They can be found not guilty for a range of reasons, from mistaken identity or scientific evidence to having a legal defence. They may have been put into the frame by some criminal to get himself out of it. I have defended innumerable people who, on the face of the papers, I did not think would be easy to defend. I have found that I have been right to fight very hard for their cause because, in truth, they were not guilty. One cannot always see from the papers that that is the case. Therefore, do not let the savings be automatically allocated to civil legal aid if that is going to mean that there is inadequate resourcing of people on the criminal side.

The Longford lecture was recently delivered by Baroness Hale, the first Law Lady. She made another point that emphasises the importance of adequate criminal legal aid. She drew attention—her lecture was about women in the criminal justice system—to the fact that about 30 per cent. of women in prison have suffered from long-term domestic violence. About a quarter have been raped or have suffered sexual abuse—conviction rates for both offences are low—and they are highly unlikely to have received any justice. About half had either psychiatric or addictive behaviours in the year before they were taken into custody.

It is reasonably clear from that—though it would be a great jump if one were doing a research thesis—that trauma and chaos have been thrown into these women's lives and that they often turn to crime as a way of dealing with their poverty or with other problems. They have already been failed once—society has let the abuse be inflicted on them and given them no justice—so it is important that they are not failed again by not being provided with enough money to defend themselves.

David Davies (Conservative, Monmouth)

rose—

Vera Baird (Labour, Redcar)

That was my last word, but I will give way to the hon. Gentleman.

David Davies (Conservative, Monmouth)

The hon. and learned Lady is extremely generous in giving way on her last word. I share her concern about the levels of domestic violence, but is she aware that the statistics show that married couples are a quarter less likely to be involved in domestic violence than those who are either co-habiting or single? Does that not suggest that the Government should offer more support to the institution of marriage?

Vera Baird (Labour, Redcar)

The hon. Gentleman is incorrect. The figures show that there is more reporting of cases by non-married than by married people. He cannot rightly draw the conclusion that he has drawn. One worries that people hold on to marriages longer than they should because of the institution of marriage, but that is a very different debate.

I want to end by saying that the new fairness is very welcome, that the savings are very welcome and that I look forward to them being used even-handedly and wisely across the range of legal aid.

David Heath (Liberal Democrat, Somerton and Frome)

It is a pleasure, as always, to follow the hon. and learned Lady. As is also very often the case, I agree with a great part of what she said. In particular, I agree that we should not be ashamed of legal aid; rather, we should rejoice in it. I am one of the few non-lawyers—either practising or non-practising—who is contributing to this evening's debate, but I want to make it absolutely plain that legal aid is unequivocally one of the most important pillars of the welfare state. It is as important in its way as provisions for education, health or social security, because allowing people access to justice is the mark of a civilised society—and that means ensuring that they are properly represented if they find themselves before a court of law.

Our debate has encompassed the whole of legal aid rather than the specifics of the Bill on Second Reading—I think that that is entirely appropriate in the present circumstances. It is important that we say how important both the criminal and civil legal aid systems are. It is right to acknowledge how the criminal legal aid budget has unfortunately squeezed the civil legal aid budget to an unacceptable degree. We should recognise the Government's difficulties in controlling the budget. Of course we recognise that dealing with it presents a problem for them, but it is not unreasonable also to say that we do not entirely agree with the way in which they have addressed the problem, notwithstanding what is contained in the Bill.

What I have found particularly distressing about Government propaganda recently is the constant concentration on so-called fat-cat lawyers to the exclusion of those who provide day-to-day services throughout the country to people who truly need the support of a solicitor or junior barrister in the courts. The more the attention of the press, the media and the public is drawn to a very small number of QCs operating at the Old Bailey or elsewhere to the exclusion of the rest of the profession, the more we do a disservice to the totality of the profession and the legal aid that is provided. It is a diversionary tactic that is intended to provide a hate figure for more easily led colleagues. They say, "We have got to do something about these very rich lawyers," without recognising that there is a very thin dividing line between reducing the excesses of some and reducing the effectiveness of the whole.

Adam Afriyie (Conservative, Windsor)

Legal aid is incredibly important to the least well-off and most vulnerable in society, but does the hon. Gentleman agree that an absence of legal aid practising solicitors is equally iniquitous?

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is right and I will deal with that point in a moment. We rightly always draw attention to the most vulnerable and the least financially able to make a point, but this issue affects a much wider swathe of individuals. It is a truism to say that nobody—and certainly not the articulate middle classes—thinks about legal aid until they themselves are in a court and have no access to a solicitor at the point of need. One of the difficulties in arguing the case for legal aid effectively is perhaps that so many people assume that they will never be in that position until they are. Then they realise just how important its provision is.

Much has been made of the idea that fees to lawyers are a substantial part of the problem, but in fact the evidence suggests the reverse. Remuneration for the large bulk of those providing legal aid is not excessive by any means and fees have been frozen for some time. The legal aid budget has risen inexorably simply because of the volume of business being pushed through, which is largely the result of the huge number of prosecutable offences that have been put on to the statute book. I do not know the precise figure, but the last time that I looked, this Government had created some 700 new offences. I suspect that the figure is now approaching 800. The legal aid impact test is now being applied to new legislation, but it is 800 offences too late: the damage has already been done.

New offences are included in Bills with monotonous regularity; sometimes, they are included before the offences that they are replacing have even been implemented. That provides work for lawyers but is of no advantage to anybody else. We must ask ourselves what the consequences are of such an approach. One way to reduce the legal aid budget is to have a sensible prosecuting policy and not to prosecute such absurd offences as reading out a list of names by the Cenotaph. In the first instance, we need sensible laws and offences that do not unnecessarily restrict free speech.

The attempt to get other Departments to share the legal aid costs associated with the offences that they put on the statute book is laudable, but I shall believe it when I see it happen. I fear that the Department for Constitutional Affairs does not have the clout within Government and the Cabinet to make this idea work. It could have worked, had my and others' proposal come to fruition to replace the DCA with a full-blown ministry of justice that takes significant powers from the Home Office. If we had that big player in government, perhaps more account might be taken of this idea. When I see the Home Office divesting itself of a significant part of its budget and handing it over to the DCA to pay for the consequences of the offences that it has put on to the statute book in this year's criminal justice legislation, this year's asylum and immigration legislation or this year's anti-terrorism legislation, perhaps I will believe it. Until that happens, I fear that this is a fruitless endeavour.

We have also heard about the management of cases, but that cannot be swept aside as irrelevant, as it is critical to the amount of costs incurred. If we managed prosecutions better, we could manage defence cases better. At present, the evidence is that the management of cases, and of high-cost cases in particular, is lamentably poor in many instances, with the result that costs are higher.

The hon. Member for Huntingdon (Mr. Djanogly) mentioned early intervention. Although he was speaking more about civil cases than criminal ones, I agree that early intervention can prevent matters going to court that otherwise would have to and that the effect is to reduce costs overall.

I shall give some examples of how not to deal with the expanding legal aid budget. First, we must be very careful about the thresholds that are applied. I pay tribute to the Government for having listened to the Liberal Democrats' departmental committee on this subject, and to the views of my noble Friends in another place. The system that has emerged has a built-in sensitivity that might not have been expected. A steep or sharp threshold would mean that there was a point at which a person's income would suddenly require him or her to pay the full costs of defence, even though that person had not had to pay anything before that point was reached. That would be inappropriate, whereas the tapering that is in place is entirely appropriate. However, the test is whether people are denied access to justice by their means, and that is a test that we cannot yet apply.

The second way not to deal with the matter is to reduce the service that lawyers can provide to clients. An example of that is evident in the immigration service, where the whole thrust of previous immigration legislation has been to cut costs by reducing what lawyers can do for their clients. The effect has been to drive good practitioners out, and to allow poorer practitioners to be the sole defence resource for those who need it.

We must also be careful about reducing fees. The Government have chosen a very arbitrary way to reduce fees, especially for junior counsel, but the number of people practising at the Bar and as solicitors is falling. It is very difficult to find legal aid solicitors in large parts of the country and, if we are not careful, the result will be that some places will become advice deserts. Often, the most deprived areas are not the worst affected: perversely, people in the most affluent areas are less likely to have legal aid practitioners. It is probably the worst thing of all to be poor in an affluent area, as such people have no access to services that they have a right to expect.

The House needs to be aware of how few practitioners there are in the less affluent and rural parts of Britain. As I have said many times, my town of Frome has a magistrates court but only one practitioner in one practice providing criminal legal aid. He can do so because he is cross-subsidised by the rest of the practice, but his colleagues' patience about that cross-subsidy may not last for ever. It is often reported that Frome magistrates court will close and that it will move to a new location 35 miles away. If that happens, I am sure that the patience of the other partners in the practice will be exhausted, as they will not want their colleague to be out of the office all day, every day, on visits to faraway magistrates courts. The result will be that there will be no one to represent people who require criminal legal aid in the magistrates courts in my area.

That is a huge concern. It is bad enough to have only one practitioner, given the obvious potential for a conflict of interest to arise. For example, the practitioner in Frome often represents interesting young gentlemen—I shall not say "thugs"—and in their defence makes a familiar speech, telling the court about the extraordinary behaviour that a break-up with a girlfriend occasioned, and about the remorse that the young gentleman in question has expressed. However, that might coincide with his client having a fight with another young gentleman, whose story is suspiciously similar. That could involve a conflict of interests. If we do not have such practitioners, how will we provide the service?

I am dubious about having a public defender service as a matter of course, which seems to me to be the direction in which we are inexorably headed. If that happened, the state would investigate the crime, mount the prosecution, try the crime and defend the defendant. I am not sure that that is how criminal justice should work in this country, and we need to be cautious about reaching that situation.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Does the hon. Gentleman agree that not only would a criminal defence service be not necessarily better for the defendant, but—on the evidence we have so far—it would be no cheaper either?

David Heath (Liberal Democrat, Somerton and Frome)

It would almost certainly be more expensive, because we would no longer have the cross-subsidy that I mentioned earlier. It is more and more difficult to maintain that cross-subsidy anyway, as aspects of solicitors' general practice are hived off to other professions. The conveyancing that used to provide a large part of practices' income is now done by others, and other parts of the job are being done by other professions. That means that many towns do not have general practices providing all the services. That may not be a problem in a large city, which will have a variety of practices specialising in different areas, but it is certainly a problem in market towns and rural areas, which have a limited number of solicitors who have to provide a wide range of services.

Vera Baird (Labour, Redcar)

The hon. Gentleman makes the point well about the lack of cross-subsidy and the possibility that heavier costs will follow as a consequence. I am interested in his notion that because the state finances a criminal defence it might not be so good. I have done a case in which the criminal defence representatives were able to mobilise the Criminal Cases Review Commission to order the police to seize some evidence in a way that I am convinced that no high street firm would have been able to mobilise an organ of state to do. That may have been because the defence representatives were funded by the state, albeit at arm's length, and had some extra clout in some situations. They certainly did in that case. Is the hon. Gentleman interested in that as a counter-argument?

David Heath (Liberal Democrat, Somerton and Frome)

I am certainly always interested in counter-arguments and I do not wish to cast aspersions on the professionalism of lawyers employed in that capacity. Indeed, the source of funding is the same in either case. The question is whether a person is under contract directly to the state—as barristers are not—in a way that would be an innovation in our legal system.

The point that the hon. and learned Lady makes gives me cause for concern in the other direction, because I would not want us to have an elite defender system any more than I would wish us to have a substandard defender system. If it is true that a state defender would have more clout with the prosecuting authorities than other defenders, something would need to be done to prevent that from happening.

Vera Baird (Labour, Redcar)

In the case I mentioned, it was the Criminal Cases Review Commission, not the prosecuting authorities. The defence was able to mobilise that independent third party, and I wondered if it was because it had the clout of being directly financed by the state. It was to the defendant's huge advantage.

David Heath (Liberal Democrat, Somerton and Frome)

I am glad for the defendant, but the CCRC needs to look carefully at its independence if it considered more favourably a request from a particular source than one from an equally valid but alternative source.

Much has been said about the Carter review and what it will achieve. If it achieves everything that is expected of it, it will be a remarkable review indeed. I have some expectation that something will emerge from it. I have a jaundiced view of Government reviews as a rule, because it is this Government's way of saying mañana to establish a review, or a review of a review, or a review of a review of a review. In this instance, however, as the issue is urgent something is likely to emerge. I hope that it is not scuppered, like the Turner review, by the Chancellor of the Exchequer before it is even published. That would be extremely unhelpful.

I fear that an increase of costs will be involved, so there is a real prospect of that happening but I hope that the DCA will be able, and want, to stand up for itself and say that legal aid and legal services can never be provided on the cheap. They must be effective, but there will always be a cost, and to return to the point with which I began, in response to the hon. and learned Member for Redcar (Vera Baird), we should be proud of the fact that we provide those services to our citizens.

We shall support the Bill. There is nothing exceptionable in it. I am deeply disappointed that the Minister wants to revisit the issue of appeal, as the sensible amendment proposed by my noble Friend, Lord Goodhart, in the other place commended itself to Members there. The Minister says that the eligibility rules are simply a matter of arithmetic. I disagree. There is of course a large element that is arithmetic and it would be nonsense to require it to be appealed, but there is also the complex issue of whether, in a relationship or partnership, another person's financial position and arrangements should be taken into account as part of the eligibility criteria. That is properly a matter for appeal.

The previous appeal system was not overused and I do not think the proposed one would be. There would be no significant issues in terms of either costs or delay. At the end of the day, we are talking about the interests of justice. If someone is denied representation who feels that they should have it, it is per se in the interests of justice that we look into why it has been refused, if it is anything other than an incontrovertible case based on simple arithmetic.

Adam Afriyie (Conservative, Windsor)

If it is simply a matter of a mathematical calculation, there is no reason why the existing court system cannot undertake it.

David Heath (Liberal Democrat, Somerton and Frome)

I would not expect an appeal to be heard on a challenge that someone had done their sums wrong. That would not be grounds for appeal, but where the issue is more complex, I would expect the court to take an interest in how the calculations had been made, because that is in the interests of justice. That is the distinction that I want to make, and in Committee I shall argue that point.

Vera Baird (Labour, Redcar)

rose—

David Heath (Liberal Democrat, Somerton and Frome)

I have spoken for longer than I intended and to be fair to other Members I shall not give way again.

I was interested in the Minister's response on the relevant date for assessment. I think she suggested, perhaps off the cuff, that it should be the date of arrest, which might be difficult to manage. The date of charge might be rather easier to manage as the relevant date. As that provision will probably appear in regulations rather than in the legislation, it might help if careful consideration were given to it before Committee, so that we have some idea of the Government's thinking.

I should be interested in exploring the mechanism for the contribution paid. Are we intending that practitioners should be paid, presumably under contract from the commission, irrespective of whether the required contribution had been returned to the commission? Perhaps the Minister will be able to satisfy me on that point in due course.

We need to consider whether the Bill will achieve the savings that the Minister presumably expects from it. If they can be made, will they come from the contributions that more affluent people make to the cost of legal aid or from reducing the eligibility of those who are less affluent to legal aid at the bottom end? The House needs to be able to understand that important distinction in allowing the Bill to make further progress.

We have not yet had a satisfactory answer about a basic trade-off. A few years ago, we were told that the reason for abolishing the means test was effectively to produce a quick, efficient system that would obviate the need for lengthy means tests, which were getting in the way. We are now told that the Government's view is that we must reintroduce the means test because that is an effective way to produce a quick, efficient system that will save money for the taxpayer. Clearly, there is a trade-off between the speed of the process and its cost. I appreciate that the Government are trying to find the balance, but they must be clear about where the balance of advantage lies. However, I certainly do not wish to oppose the Bill this evening.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I do not propose to detain the House for long. I declare an interest as a non-practising criminal barrister and as a distinctly thin cat, rather than a fat cat, in the course of my practice. I have two concerns about the Bill. First, it does not perhaps address in the way that the Government hope it will the fundamental problem at the heart of the criminal legal aid budget. Secondly, in trying to address the problem in that way, the danger is that the Bill will damage the criminal justice system.

Following the remarks that have been made by other hon. Members on the first issue, I have two points to make. First, within the parameters of my experience as a practising criminal barrister, I can think of very few of my clients who would be caught by the scope of the Bill and who would have to pay any contribution to their own legal costs because their incomes would come below—in many cases, well below—the limit that the Government propose. I therefore wonder whether a sizeable percentage of those who were my clients would save us any money at all if they were invited to contribute a proportion of their own costs.

The other issue, which goes to the heart of the matter, and to which other hon. Members have drawn attention, is that the Government do not address in the Bill the very high-cost criminal cases that form a significant part of an unacceptably ever-growing criminal legal aid budget. Until something is done about those cases, the budget will not be brought under control. In fact, I suggest that the situation is worse than that: the danger is that those who practise at the junior end of the criminal Bar get the blame and must carry the burden of those who cause the real problem at the top end of the criminal Bar. That problem is not addressed by the Bill, which, if anything, perpetuates the myth that lawyers and, indeed, their clients in the criminal justice system are mainly responsible for the overspend. In my view, they are not.

Whether the criminal justice system operates at too high a cost is a genuine concern—it very clearly does—but the reason why it does so is not mainly, substantially and certainly not entirely due to the fact that criminal legal aid is paid in too high amounts to lawyers and their clients. Many other things in the criminal justice system need to be addressed, such as why cases do not come to court as quickly as they should and why there are innumerable adjournments. That has to do with a range of things—the hon. Member for Somerton and Frome (Mr. Heath) referred to a few of them—including failure to disclose evidence in time and problems relating to witnesses and defendants who fail to attend courts. There are even problems, I am sorry to say, relating to defendants not being produced on time from the prisons where they are on remand. That causes delay, and delay causes cost. If the Government chose to do an analysis of costs, I would not be surprised if they discovered that a good portion of the overspend that they correctly describe in the criminal justice legal aid system results from that sort of problem.

The other difficulty that I have with the Bill is the fact that in the course of attempting to save money, the Government may do damage to the pursuit of criminal justice. It is inevitable that some people who do not receive criminal legal aid because their means are too excessive will choose to represent themselves. The Government have accepted that that will happen in a small number of cases, but I venture to suggest that it might happen in a substantial number of cases. In my experience as a lawyer, when that happens a case inevitably takes longer, and when a case takes longer, it costs more. When the Government calculate the amount that they hope to save through the Bill, they must take account of the lack of saving—if I may put it that way—that will result if more people choose to represent themselves.

The problem that arises when people represent themselves is not only monetary. It is of course right that such people, as non-trained lawyers, might not be able to get to the heart of the matter as quickly as a legal representative could. Cross-examination also goes on longer. However, in a substantial number of cases, it is profoundly undesirable that those who represent themselves should be permitted to cross-examine witnesses. One can think of several examples of such cases, including neighbour disputes and, worse yet, cases involving a child as a victim or a witness. If prosecutions are conducted in such a way that defendants represent themselves and thus cross-examine witnesses, the process not only takes longer, but detracts from the nature of justice and affects the tone of the case.

Although I do not object to the substance of the Bill, it fails to address the concerns that I have cited. I hope that the Minister will carefully examine not only what the Bill covers, but what it does not cover. As the hon. and learned Member for Redcar (Vera Baird) said, when we deal with criminal defendants, we are often dealing with vulnerable individuals in their most vulnerable moments. It is important that they receive the assistance that they need so that they are represented properly. If they become inclined to defend and represent themselves, as I suspect that they will in some cases, it will not enhance the nature of British justice—quite the reverse. I hope that the Minister will take my points on board and bear them in mind when she thinks about other matters that the Government might wish to address when considering the criminal justice system as a whole.

David Burrowes (Conservative, Enfield, Southgate)

I am grateful for the opportunity to follow my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright). I wish to follow on from his experiences at the Bar with my experience—I declare an interest—as a practising criminal solicitor-advocate.

The titles of Government Bills have tended to be more descriptive in recent times. For example, we recently considered the Violent Crime Reduction Bill. Perhaps a more descriptive title of this Bill would be the "Return of means-testing following our mistake in abolishing it Bill". The Government must have the humility to acknowledge that the will to abolish means-testing was theirs. They have realised that they made a mistake, so they are trying to reintroduce it.

I was a practising solicitor at the time at which we had the means-testing application forms. We all realised the administrative burdens and the problems and delays that the system caused. However, the problem was not means-testing per se, but the way in which it was administered. I remember the delays vividly. When clients applied for legal aid—as it was called before the representation orders came into being—they were not necessarily the most reliable of sorts. They were required to provide documentary evidence, but they were often self-employed. It took a great deal of time for their statements of accounts to come before the courts, or to get the wage slips for 13 weeks that were needed. There were weekly adjournments, and we went through the process of trying to get blood out of a stone to get the next wage slip to get up to the magic mark of 13 so that we could eventually reach a position at which legal aid could be considered. We certainly knew that the system needed to be changed to take account of those delays and problems.

Another problem arose due to contribution orders. Clients were often required to make a contribution of a matter of pounds a week, but failed to do so over several weeks. Just before the trial—indeed, in some cases, it was on the day of the trial itself—an order would be issued to revoke their legal aid order because they had not paid their contribution. The trial process ended, and we went back to square one. That must change, and I urge the Government to be cautious about the implementation of the new contribution orders so that we do not return to the bad old days when contribution orders were a spanner in the works for the trial process and the criminal justice system. There is certainly support for a much more simplified, straightforward form of means-testing. It should be less bureaucratic and burdensome, so I welcome the proposals in the Bill.

I am concerned about the rationale of the proposal to transfer responsibilities for granting representation orders from the courts to the Legal Services Commission. I am not aware of any justification for that proposal, and while I welcome the devolution of powers in the Bill to court staff—notionally, there will not be any changes in administration—the fundamental principle that the courts are the proper place for the judicial function of considering the merits of legal aid should be retained. The hon. and learned Member for Redcar (Vera Baird) referred to complaints about inconsistency after the means-testing scheme was abolished, and spoke about a flood of applications. She sought to criticise the courts for their inconsistency in granting certificates, and suggested that their decisions were wrong. I have not seen any research or statistics to justify such an assertion. From a practitioner's point of view, as soon as the means test was abolished it opened the way for problems for people charged, for example, with driving offences, who could not produce their payslips or a statement of accounts, and thus could not receive a legal aid certificate. Those people now fall within the range for the granting of legal aid, which, in the past, was often granted to people who had the means to pay for representation. The number of certificates increased, but that had little to do with a more liberal approach by the courts towards the granting of certificates. In my years of practice, I did not encounter any inconsistency in the granting of certificates by the courts, so that argument does not provide a proper rationale for seeking to transfer the primary responsibility for granting legal aid from the courts to the Legal Services Commission.

Recently, however, concerns were expressed when the commission became much more involved in the budgets of individual courts. Court staff were anxious about the targets they had to meet, and the decisions that were made were arbitrary, and not in the interests of justice. Inconsistencies, unfairness and injustice arise when the commission is involved in decision making, so it is worrying that the Bill should confer powers on it. I accept that those powers will be devolved to court staff, but the Bill refers to monitoring by the commission, apparently to deal with the problem of inconsistency. Courts should have a proper residual power to grant legal aid. There is no such provision in the Bill, but it was mentioned in the other place, where Members were anxious about human rights compliance and the need for proper safeguards. In Committee, the Government should accept that the appeal process for legal aid should comply with human rights provisions. Moreover, they should go a step further and retain the principle of residual power for courts to grant legal aid.

My hon. Friend the Member for Huntingdon (Mr. Djanogly) spoke about the prospect of defendants charged with either-way offences electing to plead in such a manner that means they will not be encumbered by contribution orders. I have represented clients who have been primarily concerned with the financial consequences of legal aid, and they have thus elected to plead in a certain way. At present, they must submit a statement of means, so they run the risk of contributing to defence costs. The reverse could well be true if we stagger, as we seek to do, the implementation of means-testing by magistrates courts and Crown courts. In either-way cases, many defendants will base their decision about whether to be tried in a magistrates court or in a Crown court on the issue of which court is less expensive for them. Plainly, there needs to be some reconciliation between the two procedures. We need to avoid the eventuality that I described, which could well increase the costs.

Finally, I wish to talk up the role of the criminal solicitor.

Oliver Heald (Conservative, North East Hertfordshire)

Hear, hear.

David Burrowes (Conservative, Enfield, Southgate)

Thank you. I am obliged for that support.

It is easy, as has been mentioned in the debate, to stereotype legal aid debates and talk loosely about fat-cat lawyers and so on. Solicitors generally provide a good service, offering high quality advice at unsocial hours. If the solicitor is lucky, he sees his client in an interview room. If he is unlucky, the meeting takes place in a smelly cell. Clients are often the most vulnerable in our community and are often dangerous. Their liberty is at stake.

Solicitors up and down the land fulfil that role. They are under great pressure, not least because of the Government's proposals and the pigeon-hole approach to legal aid that the Government have taken. The Bill is a symptom of that approach to the criminal legal aid service. We all recognise that there has been an increase in criminal legal aid. The situation in the lower courts is largely under control, as the Legal Services Commission has recognised. The Department has predicted a decrease in that budget. It is estimated that the Bill will make savings of £35 million.

Taking all those factors together—a budget under control, solicitors properly administering the contracting process, and case management procedures in courts having their effect—we should get off the back of solicitors, who seek to provide a good service throughout the country.

We still face the prospect, which is no doubt under review, of competitive tendering, which could go to the heart of local services. It could drive out local firms, and black and minority ethnic firms in London could be disproportionately affected by such proposals. It is high time the Government took price competitive tendering off the agenda and removed solicitors and the lower courts from their gaze. No doubt high cost cases are a proper target. My hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) mentioned that delays are endemic within the system—delays caused, for example, by a prison van routinely failing to turn up. No doubt the courts could examine the 1 per cent. of cases that make up 25 per cent. of the criminal legal aid budget. There is certainly no basis for focusing on solicitors, who are trying to do a good job and are keeping proper control of the budget.

Although I welcome most of the Bill, I ask the Government to examine in detail the forgoing of the important principle of the interests of justice being properly determined by the courts, to look in the round at the cost of criminal legal aid budgets, and to ensure that they provide a good service to solicitors and defendants alike.

David Davies (Conservative, Monmouth)

I am delighted to have the opportunity to speak in the debate. I join my hon. Friends in giving a cautious welcome to the Bill, with certain caveats. I am not a lawyer, but one does not need one when reading through the Bill to realise that it represents a giant U-turn on the Act that the Government passed in 1999.

The Minister said the old system was decrepit and in need of change, in which case one must ask why she, or rather her colleagues, did not change the system. What they did was tear it up and start again. The Government insisted that means-testing would have to be abolished. They were warned at the time that abolition would mean an exponential growth in claims and legal aid bills, but they dismissed that on the basis that the extra claims would be more than offset by the increase in efficiency as a result of dispensing with the service for the calculation of contributions.

Legal aid spending has increased by 34 per cent. since 1997. The Government's figures suggest that the increase in costs is because people who would previously have paid for legal aid are taking advantage of the fact that they can now get it—the example involving a professional footballer who earns £40,000 a week is simply the tip of the iceberg. [Interruption.] I would be happy to take an intervention by the hon. Member for Workington (Tony Cunningham).

The Government introduced the 1999 Act in the face of warnings, and they made an error that cost millions of pounds and that possibly denied people access to justice. However, we must not be too hard on them, because any creditable system of justice should give a little credit to an offender who admits to having made an error and who wants to put that error right. Although we have not heard an apology from the Minister yet—perhaps we will get one shortly—the Bill is a way to make amends and reverse the errors introduced by the Labour party, and it will therefore receive cross-party support.

Vera Baird (Labour, Redcar)

I do not know whether the hon. Gentleman has read the Hansard, but there was not a squeak from any Conservative Member when that change was made.

David Davies (Conservative, Monmouth)

I have not read the Hansard, but I have read a number of reports, which make it clear that warnings were given to Ministers that the cost of legal aid would increase. It is for Ministers, not the Opposition, to take such decisions, and today they have admitted that they took the wrong decision. All I want is for them to accept that they took the wrong decision.

The Government have said that money will be saved, and they have discussed the figure of £35 million. I shall echo the hon. and learned Member for Redcar (Vera Baird) and ask about the form in which we will see those savings. Will legal aid bills reduce by £35 million, or will the money simply be spent in different ways, in which case the legal aid bill may continue to rise?

To pick up on a point raised by my hon. Friend the Member for Windsor (Adam Afriyie), how will the Government police the mechanism for ensuring that people do not submit incorrect information when they claim legal aid? My hon. Friend has discussed the possibility of hiding funds in offshore costs, and it would also be easy for people to take out their savings, which is the asset that will be examined, to pay off the capital on their house or to buy a new car. What steps, if any, will be taken to police the mechanism and ensure that people provide accurate information? The Minister keeps saying that the Government will come up with an efficient system, but one cannot help but wonder whether the Government's definition of efficiency simply entails accepting on trust applications made by people who are already in the courts having been charged with other offences.

The hon. Member for Somerton and Frome (Mr. Heath) rightly drew attention to the point that one reason why legal aid bills are increasing is that the Government keep creating ever more offences. He discussed the example of a young lady who was arrested simply for reading out the names of British soldiers killed in Iraq. I do not suppose that that young lady is a paid-up member of her local Conservative association, but I fully support her right to speak out. Apart from the increase in legal aid bills, I find it extraordinary that such cases are being brought. The Government are going to try to be tough on legal aid spending, but they are not going to be tough on the causes of legal aid spending.

The Government could dramatically reduce costs in one or two other areas. Returning to asylum and immigration cases, more than £200 million was spent on legal aid for such cases in the financial year 2003–04. All hon. Members believe that genuine asylum seekers should be given all possible help in order to stay in this country. As the Government's figures show, however, the vast majority of those who claim asylum are making false claims and are not genuine asylum seekers. It is unacceptable that £200 million is being spent in this way, thereby funding legal advice to people who are making bogus claims. I know that all Members, many of whom are lawyers, are honourable, in and out of the House. However, I am concerned about the immigration and asylum lawyers who are, frankly, filling their boots with taxpayers' cash by launching one appeal after another in cases that are demonstrably hopeless. I suggest that the Minister should consider how legal aid for asylum and immigration is funded and even explore the possibility of withdrawing legal aid from people whose claims will clearly be false because they come from countries where there should be no danger to their lives.

The Government should examine the way in which sentences are imposed. One of the reasons legal aid bills are so high is that we have a system whereby offenders are able to keep reappearing on various offences because they have never been sentenced properly in the first place. If people were given adequate prison sentences, they, first, would not be free to go around breaking the law and causing more misery to members of the public, and, secondly, would not be causing a rise in legal aid spending by reappearing in court and making the British taxpayer responsible for their defence.

It is utterly perverse that those who are in prison are able to claim legal aid in order to get out on early release. There was much self-congratulation in the establishment a few weeks ago when the murderers of Anthony Walker were given the supposedly draconian sentence of two life sentences—a double life tariff. But if one reads the small print, it is clear that those two murderers will be out walking the streets within 15 to 20 years. By the time one of them is aged 35, he will be able to go before an early release board with legal aid in order to get himself out of prison again. That is outrageous. If such people were given the sentences that they deserved, they would never walk the streets again, and they would certainly not get legal aid in order to qualify them to do so.

The Minister has a long way to go before she solves the problem of rising legal aid. She said that she is going to come up with a new system that will be simpler, more cost-effective and more efficient. Those phrases were all used a few years ago when the Access to Justice Act 1999 was introduced. I was not here in 1999—if I had been, I would be suffering from a case of déjà vu—but I would not be at all surprised if in five years' time we were not back here again having found that legal aid costs have once again soared and that the whole system is falling apart, with the difference that I fully expect that by that time those of sitting us on the Opposition side will be sitting on the Government side, and we will have a Home Secretary who will be able to put in place a proper system that will last us for many years to come.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I thank Members on both sides of the House for participating in a useful and constructive debate on this small but extremely significant Bill. I do not believe that there is a great deal of disagreement in the House about the key principle that lies at the heart of the Bill—that those who can afford to pay for the cost of their own defence should in normal circumstances be invited to do so. I think that we are on common ground in seeking to ensure that the legal aid budget is managed on a sustainable basis.

Several Conservative Members, particularly the hon. Member for Huntingdon (Mr. Djanogly), suggested that the reintroduction of a means test could threaten access to justice. However, it is not about denying the right to representation but about determining whether it is right and proper that the state should meet the cost of that representation in all cases.

Jonathan Djanogly (Conservative, Huntingdon)

I did not intend to intervene on the Under-Secretary, but I should be grateful if he would explain precisely when I said that the measure would deny access to justice.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

That is my recollection, and I apologise if I am incorrect. A theme that ran through the debate was the concern that individuals could be denied access to justice in some cases, but we must accept that means-testing has been an integral part of the welfare state in ensuring that those who can pay do so. Successive Governments have tried to ensure that valuable budgetary resources can be accurately and fairly allocated to those who most need them, and that argument applies to the legal aid budget. Far from restricting access to justice, means-testing will actively help to promote access for all.

Several hon. Members asked questions about or doubted whether the savings to which the supporting documentation refers would occur. The calculation of a £35 million saving comes from detailed work, which shows published thresholds of £19,000 for a couple without children up to £34,000. Of the approximately 30 per cent. of people who currently receive legal aid, two thirds will be eligible and a third will not be eligible. It is then a relatively easy calculation to establish that, on current budgets, that means a saving of £35 million. The figure relates to thresholds in the supporting documentation. We accept that, as we progress through Committee and when orders are laid, the thresholds could be adjusted. That was one of the points that the hon. Member for Somerton and Frome (Mr. Heath) made.

Several hon. Members accused the Government of a massive U-turn in the Bill, given that the Access to Justice Act 1999 abolished the means test. However, it is worth referring to the Second Reading debate on that measure. The Opposition tabled a reasoned amendment to Second Reading that did not mention means-testing in its lengthy objection or in the grounds that it set out for voting against the Bill. I have read all the speeches by Opposition Members and not one mentioned the abolition of the means test. My research so far suggests that, even in Committee, Conservative Members did not object to it.

David Davies (Conservative, Monmouth)

The Under-Secretary knows that I was not here in 1999 because I was serving in the Welsh Assembly. I can assume only that so much else was wrong with the Bill that Conservative Members had other things on their minds.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Nice try. However, it is clear from the debates in 1999 that the issue was not perceived as controversial. The abolition was accepted for the reasons that the hon. Member for Somerton and Frome (Mr. Heath) and my hon. Friend the Under-Secretary of State for Constitutional Affairs gave. There were clearly serious problems, which the hon. Member for Enfield, Southgate (Mr. Burrowes) identified, in that the processes involved in the means test added significant delays to the justice system. A judgment was made at the time that abolishing it was a way of saving money, but more important, of speeding up access to justice. Hon. Members should be careful and, instead of crowing, accept that, at the time, the measure was perceived as a step in the right direction. However, our experience in the past four years or so and the various individual cases that have clearly abused the system show that something has to be done.

The hon. Member for Huntingdon mentioned certain other factors that drive the rising costs of legal aid. The reasons for the growth in expenditure are complex, and require an integrated approach if they are to be tackled successfully. "A Fairer Deal for Legal Aid", which was launched in July 2005, sets out a strategic vision for how this can be achieved. While the reintroduction of means-testing has a key role to play in that regard, it is by no means the sole focus of the strategy. For example, major steps are being taken to address the budgetary concerns posed by very high-cost criminal cases. However, it is important to recognise that the savings that will flow from the Bill are significant, with at least £35 million of savings resulting from the implementation of means tests in magistrates courts alone. For that reason, it is right and proper that we continue to give proportionate emphasis to means-testing as a major element in the strategy.

The hon. Member for Somerton and Frome said that the number of criminal practitioners—solicitors in particular—in his area was causing concern, and that sometimes only one solicitor would be available. We are aware of problems in certain rural areas, which are often less well provided for than urban areas. However, the Legal Services Commission is providing training grants to tackle that problem. In my experience, the number of students seeking to enter law school is continuing to rise considerably, and we need to ensure that a package is available to encourage those students to go into criminal representation.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is absolutely right; there is no shortage of keen and eager students going into law schools with high altruistic principles about going into legal aid criminal practice. The problem is finding places for them in firms such as those in my area, where training places are simply not available.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I accept that point. We have to look at the issue holistically, and perhaps it can be discussed further in Committee.

The hon. Member for Somerton and Frome raised the issue of the amendment that was passed in the House of Lords, and expressed his disappointment that we intend to overturn it. I should reiterate the Government's position on this policy. On the interests of justice case, the Government firmly believe that there should be an appeal to the court. However, when an applicant disputes the outcome of the means test, the Government consider that an administrative review mechanism is entirely appropriate. I think that my hon. and learned Friend the Member for Redcar (Vera Baird) made the point that it would not be justifiable to take to court a dispute over a calculation.

To provide for a full appeal process in respect of the means test would amount to a misuse of court resources, as the test is essentially administrative in nature and does not merit judicial intervention. I would add that that view is supported by members of the senior judiciary, whom we have consulted on this issue. At the end of the day, if an individual remains dissatisfied after the review has been carried out by the authorities, the individual could seek judicial review of the decision. It is for those reasons that the Government intend to table amendments in Committee to restore that position.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister must know that judicial review is not a substitute for an appeal process, because it would only consider the way in which the decision was taken. It could not consider the facts ab initio as to whether the eligibility should have been granted.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The issue, however, is purely financial— [Interruption.] If we are talking about eligibility, the issue is whether or not the individual qualifies for legal aid. That involves considering the individual's financial situation, and I reiterate that that is not a justification for the court—

Adam Afriyie (Conservative, Windsor)

I disagree entirely with what the Minister has just said. This is definitely an access to justice issue, because how can one have justice if one does not have legal aid and one cannot afford to pay for legal representation?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

First, there can be an appeal to the court on the interests of justice issue if aid is refused on those grounds. Eligibility, in purely financial terms, concerns whether or not the individual has sufficient resources to qualify for legal aid. That is not an access issue. With some of the thresholds that have been indicated, and the availability of resources test, this is a perfectly reasonable move forward. We need to keep the system relatively simple but fair, so that we do not return to the old system, which the hon. Member for Enfield, Southgate described so well, and the problems that occurred under it.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Surely the Minister cannot have it both ways. If, as he says, the eligibility criterion is a straightforward mathematical exercise, an appeal on that basis cannot waste much court time, can it?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Why should the matter be taken to court when there is a review system? If the argument is about what someone earns, or what their outgoings are, the position should be relatively clear. I fail to see why this sort of issue should end up in court.

David Heath (Liberal Democrat, Somerton and Frome)

rose—

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I shall give way for the final time on this point to the hon. Member for Somerton and Frome.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is being very generous, and we must not rehearse now the debate that we will inevitably have in Committee. I just wanted to understand the basic issue, which is not the simple addition of income in order to maintain eligibility. The most likely cause for an appeal would be in the case of estrangement or where there was a new partner who was not a spouse, on the question of whether their joint income should be taken into account for these purposes. The Minister is saying that it is all right for that to be dealt with administratively, whereas I am saying that, ultimately, a court might have to decide on the appropriateness or otherwise.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I always try to be helpful to the hon. Gentleman, and I do not know whether he has read the supplement, which goes into considerable detail about the points to which he refers—[Interruption.] All that I can say to him is that if there is such a complex issue, it is perfectly reasonable for it to be considered by judicial review. The concern, however, is that we will again tie up our courts with people appealing on their financial eligibility for legal aid. It is recognised by senior members of the judiciary that that is not a good use of court time.

This Bill seeks to tackle a widely recognised and much criticised flaw in the legal aid system—that, on too many occasions, those clearly able to afford the cost of their own representation and perhaps convicted of some of the most repellent and socially corrosive crimes are receiving the benefit of taxpayers' money through the legal aid system. Cases such as that of Kenneth Noye and, more recently, El-Hadji Diouf, are mercifully rare but do no credit to an otherwise socially vital, well-conceived and accepted system.

This is a common-sense measure that fits well with much of this Government's successful modernisation of the criminal justice system. It is based on the incontrovertible, broadly accepted principle that those who can afford to pay for the cost of their own defence should do so. It also makes significant progress towards ensuring that the modern legal aid system is sustainable and available for the protection of both current and future generations. It is, in short, a return to the founding principles of legal aid, and I am happy to commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.