HC Deb 19 December 1985 vol 89 cc654-62 9.20 pm
The Solicitor-General (Sir Patrick Mayhew)

I beg to move, That the Legal Advice and Assistance (Prospective Cost) Regulations 1985 (S.I., 1985, No. 1840), dated 28th November 1985, a copy of which was laid before this House on 2nd December, be approved. I understand that it will be for the convenience of the House if I deal at the same time with motion No. 5 on the Order Paper: That an humble Address be presented to Her Majesty, praying that the Legal Advice and Assistance (Amendment) (No. 2) Regulations 1985 (S.I., 1985, No. 1879), dated 3rd December 1985, a copy of which was laid before this House on 5th December, be annulled. The regulations are much more valuable than they are simple. To explain the affirmative resolution, I must say something about the other two associated sets of regulations. The subject of the affirmative resolution, the prospective cost regulations, alone does no more than establish an initial upper limit of £90 on the work a solicitor may undertake on his authority in some cases where people are arrested and held in custody. They must be taken together with the other two sets. The Legal Advice and Assistance (Amendment) (No. 2) Regulations 1985 make several important improvements for suspects in police stations. They make those improvements in the usual conditions for green form advice and assistance, and they provide most of the framework for the two-tier system that was announced last July. The process is completed by the Legal Advice at Police Stations (Remuneration) Regulations 1985, which also prescribe forms and rates of remuneration. Hardly less intregal is the Legal Aid (Duty Solicitor) Scheme 1985, in which the Law Society has made arrangements for a 24-hour duty solicitor scheme. All four documents form part of a complete system and are fully interdependent. They represent one of the most significant developments in legal services for years. For the first time, special arrangements will be made for legal advice at police stations.

The right to legal advice for suspects already exists in the judges rules, but they have not been fully satisfactory and will be withdrawn. The police have been under no obligation to inform suspects of their rights, and only the tiniest proportion of suspects seems to have known about them or chosen to exercise them. That is why the Philips Royal Commission recommended a clearer and safeguarded right. But it understood the possible resource implications of that and suggested that it should be confined to suspects who had been held for six hours or more.

When the Police and Criminal Evidence Act 1984 comes into force on 1 January next year, it will fundamentally change the present position. All those who were arrested will have a statutory right to advice. They must be informed of that right and how it might be exercised. They must sign their custody records to acknowledge that that has happened and to note their decision. Except in cases of urgency, the police may not interview further, once advice has been requested, until the client has seen a solicitor, if one is available.

The code of practice confers a right to advice for all those who are voluntarily helping the police. The code was approved by the House on 5 December. Both the commission's research and pilot studies conducted by the Law Society suggest that about 20 per cent. of suspects will now seek legal advice. What is more, the tighter timetables that the 1984 Act imposes on the police by virtue of section 40, review of custody, mean that many of these requests will arise out of normal working hours.

The Act therefore includes powers for the Law Society to make arrangements for a 24-hour duty solicitor scheme. That will operate through the committees which already run duty solicitor schemes in magistrates courts. When a suspect is told of his rights, he will be told how to get a solicitor. If he opts for the duty solicitor, the police will telephone the commercial regional telephone service which has details of the duty solicitors in the region. The service will be responsible for finding a duty solicitor for the area and contacting him with details of the request. That should ensure that duty solicitors get to the police station within the timetables. The solicitors and others who under the duty solicitor's directions will work under the scheme will be selected for relevant experience and general ability to advise at police stations. The framework for all that is contained in the society's scheme.

Three factors have weighed in the preparation of the scheme. First, only about a third of suspects, on the basis of the society's pilot schemes, will ask for a duty solicitor. The others will ask for their own, and we have sought to avoid limiting freedom of choice. Secondly, we have had to make a number of improvements in the legal advice and assistance scheme—the green form scheme—to take account of the special circumstances at police stations. Thirdly, there is the need to secure value for money. The Lord Chancellor has had to consider the availability of Government finance, and all the competing claims upon it, and to ensure that the funds which are available are used effectively and without waste.

May I first take the two-tier provisions. Under the standard green form provision, a solicitor may undertake work to the value of £50 on his own authority without obtaining the permission of the legal aid committee, but if it appears likely that more than £50 will be required he must obtain a prior extension from the Law Society before proceeding. The new regulations therefore provide a new upper limit of £90 when a solicitor is advising a suspect who has been arrested in connection with a serious offence—an "arrestable offence" in the language of section 24 of the 1984 Act. That means, putting it broadly, where a sentence of imprisonment of five years or more can be imposed.

In such a case, a solicitor may need to give prolonged advice. He may also need to be present for a substantial period. The upper limit can accordingly be extended retrospectively where urgency is required in the interests of justice. But the Lord Chancellor is firmly of the view that it would not be right to make this exceptional provision for every case. For offences other than section 24 offences—the lower tier cases—the standard green form cost limit of £50 will apply, and it may not be exceeded.

On the basis of the society's pilot schemes, this amount should, very broadly, allow a solicitor to visit the suspect in the police station and provide the average period of advice that is required in cases of all kinds where average travelling costs apply. Of course, in the case of either tier it may be possible for the solicitor to give advice over the telephone. There are a number of further improvements to the usual green form conditions—

Mr. Alex Carlile (Montgomery)

The hon. and learned Gentleman has just mentioned the provision of advice over the telephone. One can envisage many cases in which advice might be given over the telephone by a solicitor to a client in a police station. However, will the hon. and learned Gentleman assure the House that facilities will be made available in police stations to enable suspects to talk in complete confidence, and without supervision by police officers, to their solicitors? If they cannot be provided with that facility, it is quite useless for them to talk 10 their solicitors over the telephone.

The Solicitor-General

I am sure that it is desirable that suspects should be able to talk in confidence to their legal adviser. I shall draw the hon. and learned Gentleman's point to the attention of my noble and learned Friend the Lord Chancellor.

There are a number of further improvements to the usual green form conditions, and they are important. The green form means test and the contribution provisions will not apply; applications by telephone will be permitted; the society's prior approval is normally required if an application is taken direct from a child, but that will not be necessary here; and a case can be handed from a duty to an own solicitor or vice versa. Those important improvements apply to cases in either tier and whether a duty solicitor or the suspect's solicitor is requested.

I will not go into many details of the remuneration arrangements for police station work, which are contained in the regulations, but it may be helpful if I comment on the basic structure. A duty solicitor will be given a standby payment of £60 for 24 hours, or pro rata. Any work that he may do in that period will be paid for at scale rates under the regulations, but, however much he does, he will never get less than half the standby pay in addition.

He will be paid at the rate of £27 an hour, for all work, except that out of normal office hours, and that will be enhanced in upper tier cases by one third to £36 an hour. A flat fee of £10 is introduced for advising over the telephone, together with a charge of £1 for routine telephone calls—for example, to the telephone service or to establish contact with the client. Where necessary, accommodation costs will be met.

The provisions for own solicitors are more similar to the existing general green form arrangements. They will be paid at the rate of £27 an hour for giving advice and £17 an hour for travelling and waiting. The same telephone fees will be available. Both kinds of solicitors will receive travelling expenses to and from their client.

The expression ABWOR—assistance by way of representation—applies to many of our constituency cases. Both duty and own solicitors will be involved in advising and representing suspects in connection with hearings before magistrates' courts for warrants of further detention. Again, these are important improvements on the standard conditions for assistance by way of representation.

Legal representation will always be necessary and the usual requirement for prior approval of the representation by the society will not apply. Nor will the means test requirement apply, nor the contribution liability. The usual remuneration for this work will be paid, except that duty solicitors who do it out of usual office hours will be paid rates enhanced by one third.

These arrangements are a systematic and workable fulfilment of the Government's undertaking to provide an effective right to legal advice, balanced against our need to bill the taxpayer only with what is necessary. But this is a new area and we must be ready to adjust the scheme if, in the light of experience, that seems necessary. The Lord Chancellor has undertaken to keep it under review. I believe that in no other country will such extensive rights for the individual be available, and I commend the regulations to the House.

9.33 pm
Mr. Nicholas Brown (Newcastle upon Tyne, East)

It is right that the House should debate the regulations and the Opposition prayer together. Indeed, it would have been difficult for us to have debated them separately because they inter-relate. The Solicitor-General helpfully took the House through that inter-relationship, and I shall not repeat much of what he said. I agreed with the emphasis that he placed on the importance of the new procedures that will be adopted at police stations.

Our objections are specific, and I would not like it to be thought that we objected to the 24-hour duty solicitor scheme as a whole. The regulations establish an initial limit of £90 on certain work which may be undertaken under the new 24-hour duty solicitor scheme, and separately there is established a limit of £50 on the amount of work that may be undertaken with volunteers, and by "volunteers" I mean people who are at police stations helping the police with their inquiries but who have not been arrested.

The 24-hour duty solicitor scheme had its origins in the Police and Criminal Evidence Act 1984. That Act took up some recommendations from the Philips commission. Whatever the Opposition's reservations to that Act, we strongly support the 24-hour duty solicitor scheme. Our prayer is directed solely at the capping of the amount of money which will be paid for certain categories of work. I appreciate that the Lord Chancellor has said that his mind is not closed on that issue. In that context I welcome the research that is to be undertaken by the Home Office into the functioning of the scheme and, in particular, into the different categories. The implication behind the Lord Chancellor's statement and the Home Office review is that the Government are willing to reconsider the issue on the basis of practical experience. I take comfort from what the Solicitor-General has said tonight on that.

As I said, our objections are solely to the establishment of ceilings on certain types of work. We are not objecting to the rates of payment and certainly not to the scheme itself. We have several specific anxieties. The first has already been touched on. The private telephone conversation with the solicitor which is envisaged in section 58 of the Act should be an administrative matter. The Solicitor-General said that he was sure that it is desirable. It is a bit more than desirable. I think that it is a legal right, although I am willing to be corrected if that is wrong.

I am sure that in a case such as drunken driving—an obvious and perhaps seasonal example—it is envisaged that advice will be given over the phone. I do not see why in the average drunken-driving case a solicitor should go to the police station. I am sure that a telephone call would be appropriate. But the right facilities should be provided for genuinely private conversations in police stations between the detained individual and his solicitor. I hope that the Solicitor-General can say something more than that it is desirable. The House is entitled to know what arrangements are being made to ensure that that will be the case. I have not seen the inside of many police stations, but I suspect that many do not have facilities for members of the public to make private telephone calls, yet that is something to which they are entitled.

However, the main thrust of our objective concerns the two-tier arrangement and the anomalies to which it gives rise. In particular, a real conflict must be posed for a solicitor who is advising a volunteer. What advice has the Solicitor-General for the solicitor who is with a client helping the police with their inquiries in a police station on a complex matter when the £50 limit on the work allowed by the scheme has been reached? There are only a limited number of options. The solicitor could encourage the police to arrest his client so that he could continue to be paid, but that does not seem desirable. In many cases it will almost certainly not be in the client's best interests, in the interests of justice or even, taking the Solicitor-General's point, in the Treasury's interest.

Alternatively, the Solicitor-General could advise the solicitor to say that the time is up, the money has run out and that if he is not going to be paid he will go home. What advice would the Solicitor-General then give to a solicitor who was charged with professional misconduct or even sued for negligence? I know that most solicitors would not take that attitude. They would stay and see their professional duties through. But there is clearly a conflict because nobody likes to do work for which he will not be remunerated.

If the solicitor did go, what would happen if the police then introduced new points? Would it be possible for the detained individual to make another telephone call and perhaps call the solicitor out again after he had just arrived home or perhaps call another solicitor out? Alternatively to those pretty objectionable possibilities, the Solicitor-General could advise a solicitor to work on for no pay on the swings and roundabouts principle. In other words, the cost of doing that work for nothing would have to be borne by the solicitor's other work. That does not seem to me to be a fair or acceptable alternative.

I have had put to me the case of a solicitor who spent six and a half days with a client of no personal wealth who was helping the police in a fraud case. The client was not arrested. It was obviously not in his interest that he be arrested, nor was it in the police interest. The police interest was to get to the bottom of the case. Yet the solicitor involved, under these rules, would be paid only £50.

In many cases what is proposed here is more restrictive than what happens now. I am thinking in particular of cities such as Birmingham where the local branch of the Law Society operates a much praised voluntary 24-hour scheme. It fears that this will be destroyed and be replaced by something less effective.

In addition, there must be a fear that the most vulnerable people in our society—the mentally retarded, those who do not speak English very well, and young persons—may not be effectively advised under the present scheme. The Confait case is one that is always quoted in this context. The point is that volunteers, who were completely confused, were misled into making false confessions. There is surely at least a case for taking volunteers in more serious cases out of the lower tier, and similarly to do the same for vulnerable categories of people such as the mentally deficient.

I do not always find myself in agreement with the Law Society in legal affairs debates, but I have never argued that it should not be consulted in matters of this kind. The Law Society has objected most strongly to me and to my hon. and learned Friend the Member for Aberavon (Mr. Morris) that the Lord Chancellor announced the two-tier basis of the arrangements in July 1985 without prior consultation with the Law Society. Given the emphasis that the Attorney-General put on consultation with the society during the course of the Adminstration of Justice Bill, I looked forward to hearing the Solicitor-General explain why the Law Society did not have to be consulted about these regulations.

There is widespread concern in the profession about the practical workings of the 24-hour scheme. In theory it is to be operative on 1 January 1986, but I have to put it to the Solicitor-General and to seek a specific assurance that the scheme will be operative in the north London area. The Home Secretary promised, on the Second Reading of the Police and Criminal Evidence Bill, that the Government were going to put public money where their mouth was. We are asking for neither the money nor the mouth, although the former Home Secretary often encouraged Opposition Members to do just that.

It is our contention that a modest reappraisal of the regulations would not only facilitate the better administration of justice but would specifically lead to a more effective use of resources, because the effective intervention of a solicitor at the early stage of an inquiry should assist in reducing the acquittal rate.

I conclude by quoting from the introduction to the guidelines for solicitors prepared by the Law Society's criminal law committee, entitled "Advising a suspect in the police station". In the section headed "Serving the public interest" it says: A solicitor's presence and advice will assist the truly innocent to give an account of their activities under suspicion and help to relieve them of pressures which can induce false confessions and cause miscarriages of justice. A solicitor will advise the guilty of the weight of evidence against them and, if they be truly guilty, of the substantial mitigation advantages of admitting guilt at the earliest opportunity, of assisting the recovery of stolen property, and of clearing up outstanding inquiries. The presence of a solicitor in the police station means that justice is better secured for the individual; it also leads to savings in police, court and judicial time so that quicker and more economical justice is secured for the community at large.

9.43 pm
Mr. Alex Carlile (Montgomery)

The introduction of a national duty solicitor scheme is very welcome. However, unfortunately it is under-funded. The Solicitor-General, quite apart from his physiological dissimilarity to Scrooge, has only just escaped summoning up the ghost of Christmas past by his undertaking that the scheme will be kept under constant review. I greatly welcome that observation, which he made a little earlier.

There are going to be clear anomalies because of the two-tier nature of the scheme. The fact that a person is helping with inquiries does not mean that he is not in serious trouble. People frequently help the police with their inquiries, as the quaint phrase goes, then find themselves being charged with murder, serious fraud, arson and so on.

In my view, it is clearly wrong that the solicitor who is asked to advise a person helping with inquiries under the duty solicitor scheme should be able to claim only at the lower rate. Even the higher rate is inadequate because it is intended to include the travelling time taken by solicitors who often live some distance from the police station.

One of the problems that police forces, particularly in the larger cities, have sometimes experienced is that when solicitors have been asked to come to the police station in the night it is in fact only the shabbier clerks of the dingier solicitors who have been prepared and detailed to do it. Welcome though the scheme is in general terms, I fear that the financial limits imposed will lead to the shabbiest clerks of the dingiest solicitors continuing to go out in some areas.

The scheme as funded will depend for its success not upon reasonable remuneration to the solicitors, because that is not available, but upon the good will of solicitors and the interest which solicitors around the country have already shown in duty solicitor schemes. We have already heard the voluntary scheme in Birmingham mentioned. There is a real fear that not only in Birmingham but in Portsmouth, Southampton and other less well known and smaller places existing voluntary schemes will be replaced by something worse as a result of these regulations.

In the Second Reading debate on the Police and Criminal Evidence Act 1984 the then Home Secretary said that arrangements were needed for solicitors to be available at, all times when legal advice might be sought. That was welcome, but I fear that the Government have not completely fulfilled their promise to put public money where their mouth is. They have put some money in, but the mouth still has a substantial void.

I am particularly concerned about telephone advice. As I said earlier in an intervention, there will be many cases in which it would be unnecessary for a solicitor to turn out from his home in the middle of the night and attend a police station to give advice. However, if the telephone advice scheme is to be truly effective there must be an assurance that in all police stations facilities will be provided for private calls to be made by suspects to their solicitors.

Above all, the practice of eavesdropping on those calls must not be adopted. We know that in the past, sometimes legitimately, police officers have eavesdropped on cell conversations between prisoners. That has often provided proper and powerful evidence in the case against those prisoners when they go to trial. It is very much to be hoped that the police will be discouraged from eavesdropping on telephone calls because there is a danger that, even if the eavesdropping does not come out in court, conversations between suspects and their solicitors, which should have the stamp of confidence, would become a subterfuge for obtaining evidence about the matter under investigation.

9.49 pm
The Solicitor-General

I am grateful to the hon. Member for Newcastle upon Tyne, East (Mr. Brown) and the hon. and learned Member for Montgomery (Mr. Carlile). They lost nothing in content or cogency by being succinct. The hon. Member for Newcastle upon Tyne, East began with a welcome for the scheme. I entirely understand the reasoning that lies behind the prayer. The Opposition welcome a duty solicitor scheme and their anxiety relates to the various matters that he mentioned.

Privacy in a telephone conversation in which a solicitor is giving advice is desirable. I am reminded that section 58(1) of the Police and Criminal Evidence Act 1984 provides that a suspect arrested and held in custody shall be entitled, if he so requests, to consult a solicitor privately at any time. It is therefore important that there should be no eavesdropping. That was mentioned by the hon. and learned Member for Montgomery. Anxiety about that matter should not appear to be dismissed. My noble and learned Friend the Lord Chancellor is aware of it. Solicitors are already advising clients satisfactorily over the telephone. Nothing will change with the regulations except the number of occasions upon which that will happen. The right to consult a solicitor privately is for the first time enshrined in a statute and eavesdropping would be a contravention of that right. I am pleased that the matter has been raised.

Vis-a-vis the two-tier system, the hon. Member for Newcastle upon Tyne, East asked what will happen when the £50 limit in lower tier cases is reached. A solicitor's duties have always been limited by the extent to which he is retained. There is no question of his being in breach of professional duty if he withdraws when the limit is reached. Naturally, a solicitor will wish to do his best. In a case such as that which has been described, a solicitor will know the time in which he has to seek his instructions and give his advice.

In the case of someone who has not been arrested and who is at the police station as a volunteer, the solicitor can always put the matter to the test by inviting his client to say that he wishes to leave the police station. That then puts the police to their election as to whether to arrest.

I was asked whether volunteers should be taken out of the lower tier. There are some misunderstandings about the position of a volunteer in those circumstances. He has not been arrested. Sometimes it is not clear whether the offence of which he is suspected falls within the upper or the lower tier. I do not believe that the advantage of the provisions under the regulations relating to someone arrested for an offence that comes within the upper tier are necessary in respect of a volunteer.

There is a clear distinction between a case which has progressed as far as an arrest and one which has not. There is no need for upper tier advice. It is often wholly unclear in such cases whether an offence is involved and, if so, what. The vital element which makes it clear which tier is involved is therefore missing.

The undertaking of my noble and learned Friend the Lord Chancellor to keep the working of the scheme under review is relevant to that point, and we shall see how it develops. No one is supposing that the present form shall, in every instance, be regarded as having been set in concrete, or anything like it.

As to the question of consultation, the scale of the problem was not known until we had had the research on the pilot schemes carried out by the Law Society over last winter in Birmingham and Kettering. That became available towards the end of the first quarter of this year. Although the Lord Chancellor announced the decision in July, we have been prepared to listen sympathetically to further proposals from the Law Society, and have been greatly helped by its suggestions.

I was asked to give an assurance that the scheme would be in operation in north London on 1 January. If the regulations are approved, the framework for the scheme will be completed. The telephone service will be ready and the Law Society has briefed the committees throughout England and Wales on the steps that they need to take. Now we must look to the profession itself—that is where success will lie—to use the framework provided.

I understand that the first signs are that the profession is showing itself willing to join the rotas. I very much hope that that will be the case. It would be a very great shame, especially in the light of the Lord Chancellor's assurance, if solicitors—especially with their honourable record in many voluntary schemes—were to hold back from joining in the rotas. I am confident that that will not happen.

The hon. and learned Gentleman said that the scheme was under-funded. That is all very well, but the original estimate was £6 million. That appears sadly to have been rather low. The Law Society now estimates the costs of the scheme to be £23 million in a year, which is by no means chicken feed. One could always say that we could spend more, and indeed we could. But we must ensure that the taxpayer is not given a bill for more than is necessary. We must see how we get on.

I do not believe that it will be the shabbiest clerks from the dingiest solicitors who take part in the scheme. That does not do justice to the way in which the profession deals with its responsibilities under the voluntary schemes. I do not believe that that is the way that it will happen under the present scheme.

I think that I have dealt with the question of confidentiality and with the other points raised during the debate.

This is really not a scheme and these are not regulations that put one in mind of "A Christmas Carol". I would refer to them as "Great Expectations".

Question put and agreed to.


That the Legal Advice and Assistance (Prospective Cost) Regulations 1985 (S.I. , 1985, No. 1840), dated 28th November 1985, a copy of which was laid before this House on 2nd December, be approved.