Lord Keen of Elie (Con)

My Lords, in this group there are Amendment 20, in which I move that Clause 12 should not stand part of the Bill, Amendment 23 in the name of the noble Baroness, Lady Brinton, to extend the period in which a case can be discontinued in the Crown Court to bring it into line with the magistrates’ court, and Amendment 29 in my name, which deals with exemptions to early release for sex offenders. On Amendment 20, Clause 12 would represent a major departure from the long-established practice of private prosecution, with damaging consequences for access to justice in England and Wales. Where the state fails or indeed is unable to act, private prosecutions provide an alternative route for victims, be they individuals, corporations or, in many instances, charitable organisations. That is plainly in the public interest, and private prosecutors should therefore receive a reasonably sufficient compensation for the costs incurred, and indeed the victims should not have to meet the costs of having to vindicate their rights in the absence of a public prosecution. As I observed earlier, in Committee, the total reimbursement of private prosecution costs, which comes from the Legal Aid Fund, amounts to 0.18% of that fund. It would hardly pass muster in the stationery department. It is a tiny proportion of overall costs. Clause 12 would give the Government the power to impose a cap on those costs. The saving would obviously be minimal but the result would be to make many private prosecutions quite untenable. Take the example of charities. They have to take action on a regular basis to protect their reputation in circumstances where they have been the victims of fraud—often very minor fraud, but which nevertheless can be highly damaging to their reputation and their ability to raise funds. In the present circumstances, the solicitors they engage to carry on those private prosecutions recover a reasonable amount of costs. The court can award costs, although it is not bound to, and thereafter they can be determined by the senior costs judge. They are not going to take up alternative judicial time. I shall touch upon the Explanatory Notes that were issued by the Ministry of Justice. They acknowledge that the costs are generally those given in the Senior Courts Cost Office Guide. As the notes say: “These are intended to reflect civil market rates of pay”. Yes, they are, and these are the very lawyers who step forward to carry out these private prosecutions. The relevant guidelines or rates are set by the Master of the Rolls. They did not move for 11 years but now they are subject to annual review, and rightly so. They are assessed in line with the services producer price index, which is entirely appropriate. The problem for the Ministry of Justice is the disparity between that reasonable rate of pay for those who carry out the private prosecution and what is paid to the defence under the legal aid scheme, which is, frankly, outrageously low and has not changed to any material extent during the last almost two years of this Government. The result is a vast disparity between one party’s costs and another’s. The Explanatory Notes go on to tell us that this is going to be an enabling power: “This measure seeks to address this inequality to reduce the disparity between the amounts which may be paid to private prosecutors and legally aided defence lawyers”.