Constitutional Affairs Committee

Press notice 15 of Session 2003-04            26 July 2004


Government plans to rein in spiralling criminal legal aid costs by re-introducing means testing for defendants could lead to delays in the criminal justice system and possibly costly human rights challenges from those who are denied support, warns a report published today by the Constitutional Affairs Committee.

Members on the Committee accept that action needs to be taken to control legal aid costs but they caution that the proposals which are contained with the Draft Criminal Defence Service Bill lack crucial detail and have not been properly costed.

They add that the Department for Constitutional Affairs (DCA), which is responsible for the scheme, has not produced any convincing evidence that re-introducing means testing would lead to substantial cost savings. The findings suggest that it is impossible to determine whether net savings across the Criminal Justice System warrant the additional bureaucracy which the proposals will involve.

According to MPs, delays and further costs would arise while evidence of income is being obtained and considered. They also point out that the problem could be made worse if the number of unrepresented defendants increased because legal aid was restricted. The report concludes that this would run counter to a number of other initiatives designed to improve the overall efficiency of the criminal justice process.

Although the Committee agrees with the Government that criminal legal aid spending - which has increased 37% or £500 million since 1997 - is unsustainable and must be controlled, MPs conclude that there are better ways of limiting spending on criminal legal aid.

The report suggests that the DCA could focus more of its efforts in other areas, such as reducing expenditure on a handful of the most expensive criminal cases which consume a disproportionate amount of the Criminal Defence Service budget. Anecdotal evidence submitted to the Committee suggested that the most expensive 6 cases account for 25% of the entire Crown Court legal aid budget.

Commenting on the report, Committee Chairman, Rt Hon Alan Beith MP said:

"There is no doubt that the Government is right to look for ways to restrain the criminal legal aid budget. Since 1997 it has spiralled out of control, squeezing the amount of support available for other important legally-aided work.

"Clearly those who can afford to pay for their own legal costs should be made to do so and, in the interests of justice, those who can't should be supported.

"The Government has put forward proposals which it says would take these key principles into account. However, we are far from convinced that the Government's scheme will deliver what it promises.

"Two of the proposed means testing models would be unworkable in practice and the other may lead to successful challenges under the Human Rights Act. This will inevitably lead to delay and more costs, the exact opposite of what the Government says it wants to achieve.

"The problem is partly due to initiatives pursued by a range of Government departments which have resulted in more prosecutions and therefore more demand for criminal legal aid. However, this is not the only reason for such substantial increases and more research needs to be undertaken to uncover other factors that have contributed to the rapid cost increases, if an appropriate way of stemming expenditure is to be found.  

"The proposals put forward by the Department for Constitutional Affairs as they currently stand leave too many important questions unanswered. We urge the DCA to come forward with more detailed responses to the wide range of questions we have raised in our report." 

The Committee also examined the other key plank of the Government's proposals which would see responsibility for administering the test for legal aid devolved to solicitors who would then be responsible for determining whether legal aid is justified 'in the interests of justice'. 

The Committee concludes that the DCA must consider the full costs of the proposed transfer of responsibility, the implications for delays to the criminal process and how conflicts of interests are to be avoided.

Notes for Editors:
1. The report is entitled 'Draft Criminal Defence Service Bill (HC 746-I)
2. The Queen's Speech in November 2003 included the announcement of a draft Bill on the Criminal Defence Service. The 'Draft Criminal Defence Service Bill: Consultation Paper and Explanatory Notes' was presented to Parliament in May 2004. The four clause draft bill is one of a number of initiatives designed to address increased criminal legal aid costs
3. Over half of the Department for Constitutional Affairs' budget of £2billion is spend on criminal legal aid. The Criminal Defence Service is run by the Legal Services Commission
4. Committee membership is as follows: Rt Hon Alan Beith MP (Chairman), Peter Bottomley MP, Hilton Dawson MP, James Clappison MP, Ross Cranston QC MP, Andrew Rosindell MP, Clive Soley MP, Ann Cryer MP, Keith Vaz MP, Jim Cunningham MP, Dr Alan Whitehead MP
5.  Further information/ media enquiries: Adele Brown, Select Committee Media Officer, 020 7219 0724 / 07711 155 722,