Finlayson Christopher: Legal Services Amendment Bill (No 2) — In Committee 
Finlayson Christopher: Legal Services Amendment Bill (No 2) — In Committee 
[Volume:630;Page:2034] 
CHRISTOPHER FINLAYSON (National) 
: 
 A very senior QC John Rowan wrote about criminal legal aid in this month’s edition of the  
New Zealand Law Journal 
. In it he referred to something he wrote in 1993 and it is very germane to this debate in Committee tonight. He said that there are few if any votes for a Government in legal aid but that the provision of proper legal advice and representation must be one of the hallmarks of a civilised society. The provision of proper legal advice and representation is critical and this bill does not address that central issue. It deals with a number of laudable matters. It makes improvements in a number of key areas but in the critical area of providing adequate criminal legal aid rates it totally fails. 
I will start by dealing with new section 92A inserted by clause 33A because the National Opposition says that that is not an adequate response to the problem. That clause provides that the Legal Services Agency “must from time to time review its rates of payment in respect of legal services …”. That will not of itself address what John Rowan describes in the March 2006  
New Zealand Law Journal 
 as the chronic disparity between the sums received by criminal legal aid defence lawyers and the sums received by Crown solicitors. This is not an issue about National looking out for its mates in the legal profession; this is an issue about justice for the poor. [ 
Interruption 
] 
The Minister in the chair Mark Burton laughs but he ought to listen very carefully to this. Because of this increasing disparity and the miserly sums that are paid there is an exit from this type of work by experienced practitioners. The cost of this situation to the justice system is summarised in this way: because people are exiting—particularly leaders and experienced counsel—the supervision and modelling for junior counsel is simply not occurring. There is a huge pressure on the part of junior counsel to take short cuts and to not do the necessary preparation. The real costs to the justice system are seen in the expanding number of criminal appeals that increasingly involve allegations of the competence of counsel. 
Finally no doubt criminal accused are being convicted when they should not be or are being convicted of charges that are more serious than should be the case. These are matters that are not addressed in this legislation and that is the primary reason why the National Party opposes this bill. In principle the bill may have what could be called pettifogging minor improvements but it does not address the key legal question it should. 
As the previous speaker said there are also problems with new sections 8 and 9 inserted by clause 5. The particular complaint the National Party has is with new section 8 which outlines the circumstances when legal aid may be granted in criminal matters. One of the criteria set out is that the Legal Services Agency may grant legal aid if “it appears to the Agency that the interests of justice require that the applicant be granted legal aid.” Thereafter the section sets out a number of factors that may appear to the Legal Services Agency to constitute the interests of justice. But after providing a very lengthy list subsection (4) is a model of vagueness because it simply states: “When considering whether or not the interests of justice require that the applicant be granted legal aid the Agency may have regard to any other circumstances that in the opinion of the Agency are relevant.” In our submission that is too vague and open-ended. Applicants for criminal legal aid should be entitled to know as early as possible what the circumstances are that justify the grant of legal aid to them. This provision is too vague and open. 
Whilst we are looking at section 8 there are a couple of other points that could be made. Importantly the majority of members on the select committee have inserted new paragraph (aa) in subsection (3). National has no real objection to that because the provision addresses a very important point; namely whether the applicant has any previous conviction. That is important because even if a person is not going to be found guilty of an offence that may result in a term of imprisonment the consequences of a previous conviction can be very serious indeed. A person may be denied entry to for example the United States if he or she has a conviction that although not susceptible of a period of imprisonment is none the less serious enough to warrant the American authorities denying a visa. That is the kind of improvement that the committee made and that National is quite happy to go along with. But the overarching problems with new sections 8 and 9 inserted by clause 5 outweigh the good. 
The second point which I mentioned in the second reading I emphasise from the point of view of those who are required to oppose cases brought by those on legal aid. It concerns clause 26 which inserts new sections 40 and 41. The reality of the matter is that it will be a very rare case indeed where circumstances are such that a legal-aided person will be liable for costs much less that the costs of the successful opponent of the aided person will actually be borne by the Legal Services Agency. Section 41(3) refers to the factors that the agency must have regard to in determining whether to pay out to a successful opponent of a legal-aided person. From experience I can advise the Committee that it is virtually impossible to recover costs so justice is not achieved in that regard either. 
In conclusion National regrets that it has to oppose this legislation. It deals with a number of points. It expands the financial thresholds for legal aid eligibility but it does not address the critical question that is confronting the criminal justice system in particular at the moment and that is the appalling rates of payment for criminal defence lawyers. These rates are turning into a real and serious barrier to justice. It is unfortunate that an enormous amount of work went into this legislation but that the critical issues that I have endeavoured to outline in this speech have not been addressed. For those reasons National opposes this bill.