Criminal Defence Service (Advice and Assistance) Bill [Lords]

HC Deb 26 February 2001 vol 363 cc635-55

Order for Second Reading read.

6.42 pm

The Parliamentary Secretary, Lord Chancellor"s Department (Mr. David Lock)

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

The Criminal Defence Service (Advice and Assistance) Bill seeks to clarify two points arising out of the Access to Justice Act 1999. It has become apparent that the powers taken in that Act are likely to be insufficient to maintain the current levels of legal assistance available to those involved in criminal investigations and proceedings. It is essential to remedy that so that we can bring in the criminal defence service. I want to place on record my gratitude for the support that the Bill has received from all parties in the other place, and I hope that it will not be contentious today.

First, there is a doubt that the interaction of sections 13 and 14 of the Access to Justice Act allows for advice and assistance to take the form of advocacy in certain proceedings. Secondly, the Bill would ensure that advice and assistance were available to those involved in criminal proceedings, rather than only to those involved in criminal investigations.

Criminal legal aid is currently governed by the Legal Aid Act 1988, which makes it possible for those involved in criminal proceedings or investigations to receive advice and assistance, including limited representation in court or in certain other hearings. That is known as advice by way of representation, or ABWOR, which is commonly used in a magistrates court at first hearing. The Government always intended that that important form of limited representation should continue to be available when the relevant provisions of the Access to Justice Act were brought into force on 2 April 2001. These provisions replace criminal legal aid with representation orders from the new criminal defence service. The criminal defence service is to be administered by the Legal Services Commission, which is the successor to the Legal Aid Board.

During the drafting of the detailed secondary legislation necessary to support the new criminal defence service scheme, my officials raised doubts as to whether the Access to Justice Act achieved all that was intended. As hon. Members may recall, the Access to Justice Bill was amended considerably during its passage through this House and another place in response to issues raised by hon. Members on both sides of the House. The original draft of the Bill would have maintained the provision of advice by way of representation. One inadvertent result of those amendments—which was not spotted by anyone on either side in either House at the time—appears to be that the continued provision of limited representation in those circumstances would probably not be possible.

The Bill therefore clarifies the extent of the Legal Services Commission"s duty to fund advice and assistance as part of the new criminal defence service from April. The limited form of representation for which the Bill provides will be known as advocacy assistance, and it will be the basis of the court duty solicitor scheme. That scheme provides that, when an individual is remanded in custody or when there is risk of imprisonment, a duty solicitor at court can give advice and representation at the first hearing. The benefit of the scheme is that vulnerable individuals will be properly represented. However, the criminal justice system as a whole will benefit as delay will be avoided in cases in which there is no time for the individual to apply for a full representation order—formerly criminal legal aid, as I have mentioned.

Mr. John Bercow (Buckingham)

Given that clause 1(2) provides for section 13(1) of the Access to Justice Act 1999 to have retrospective effect, will the Minister explain the significance of that retrospection in practical terms? It would be helpful if he would provide an example. Will he also I tell the House whether—and if so, to what extent—the policy has public expenditure implications?

Mr. Lock

I shall certainly deal with the retrospective nature of the Bill in relation to amendments made in another place. If the hon. Gentleman will give me a moment to deal with the substance of the Bill, I shall come to the retrospective parts in due course.

Mr. Bercow

And the costs?

Mr. Lock

I shall Indeed deal with the costs.

The second point that the Bill addresses is to ensure that advice and assistance is available for those involved in criminal proceedings as well as in investigations. Section 13 of the Access to Justice Act refers only to investigations. It is arguable that once an individual appears in court he is no longer under investigation, so the Bill clarifies that point.

Since the Bill was published, the Government have introduced three amendments on Report during its progress through the House of Lords. The effect of the amendments taken together is to allow the Bill, on enactment, to have retrospective effect, as the hon. Gentleman just mentioned. Amendment No. 1 provides that the Access to Justice Act will be read as though it had always been amended by this Bill. Amendment No. 2 provides that secondary legislation made under the powers in section 13(1) of the Access to Justice Act may also have retrospective effect, and amendment No. 3 changes the commencement date of the Bill. There is no longer any need for the Bill to commence on 2 April, and it will commence on the day on which it receives Royal Assent.

The reason why the Bill needs to have retrospective effect is—[Interruption] I encourage the hon. Member for Buckingham (Mr Bercow) to listen to the answer to his question. Originally, it was envisaged that the Bill would receive Royal Assent in time for its provisions to be in force before the criminal defence service was introduced on 2 April 2001. In practice, that meant that it needed to obtain Royal Assent by 9 March. That would have allowed time to make the secondary legislation, using the power in the amended section 13 of the Access to Justice Act, to maintain the current levels of legal assistance available to those involved in criminal investigations and proceedings.

However, concern was raised that we might not be able to guarantee Royal Assent by the deadline of 9 March. That would have resulted in a lacuna in which the powers under the unamended section 13 of the Access to Justice Act were thought to be insufficient to maintain the current levels of legal assistance For that reason, the Bill was amended so as to have retrospective effect, ensuring that there would be no such lacuna. Any secondary legislation will also be capable of having retrospective effect.

I hope that the Bill will complete its progress in good time and that the introduction of retrospectivity will prove to have been over-cautious, in which case no harm will have been done. However, if the House of Commons business managers cannot accommodate the same swift passage, this action will remove the possibility of gaps in our provision of legal support to those facing criminal charges.

I am very grateful to the Opposition for their support in the other place for the principle of retrospectivity, which was endorsed by the shadow Lord Chancellor.

Mr. Eric Forth (Bromley and Chislehurst)

We have yet to reach the programme motion, Mr. Deputy Speaker, but I hope that you will allow me to ask a question based on its content. Should the Bill be given a Second Reading—and the more I hear of what the Minister has to say, the more doubt I have about that—the Committee proceedings are envisaged to end on 8 March. As there must also be a Report stage and Third Reading, and not least the possibility of the Bill moving between here and the other place, what will happen if the general election should intervene before it can receive Royal Assent?

Mr. Lock

The timing of a general election is entirely a matter for the Prime Minister. We are to debate the programme motion following Second Reading. Given that this is a one clause Bill of extremely limited purview, and that it has caused no controversy so far—although I recognise that the right hon. Gentleman may want to change that—I hope that the Committee stage may not take the full time allowed for in the motion. Should it do so, the matter will come back on Report in accordance with that motion.

I am grateful to Lord Renton, who said that we had advanced "valid and strong reasons" for supporting the retrospective provisions introduced as an amendment. I hope that hon. Members will agree that this is an important Bill, clearing up any doubt about whether the Legal Services Commission will have the power to fund advice and assistance, as was originally intended.

As the provisions will merely continue the duty solicitor scheme as currently operating, they do not in themselves have any public expenditure implications.

Mr. Bercow

My ears prick up, and I am immediately suspicious at the words "in themselves". How are we to interpret that? Could it mean that there may be a public expenditure connotation by some other means? It might not be obnoxious, but we should know about it.

Mr. Lock

The expression "in themselves" was meant to refer to the limited effect of the Bill, which merely allows the duty solicitor scheme to continue as currently operating, and as all parties intended it to operate, after the introduction of the criminal defence service on 2 April.

I hope that the House will agree that this limited but important Bill should have a smooth and speedy passage and reach the statute book before the Access to Justice Act 1999 comes into force in April. I commend it to the House.

6.53 pm

Mr. Edward Garnier (Harborough)

The Bill arises from the unintended consequences of the relationship between sections 13 and 14 of the Access to Justice Act 1999. The junior Minister and his counterpart in the other place readily acknowledge those consequences, but they have not acknowledged that this little Bill is itself a direct consequence, unintended no doubt, of the Government"s decision to crash through the Access to Justice Bill in 1998 and 1999 without thinking seriously about the problems that could arise. The 1999 Act is a Christmas tree that allows the Lord Chancellor to aggregate to himself 37 powers to make secondary legislation, the effects of which we are now having to correct.

Mr. Forth

I agree that this is a good example of how the Government handle their business in both Houses of Parliament. We are being expected to nod through the correction of an error caused in large part by their mishandling.

Mr. Garnier

Indeed. The problem is that if we do not correct the error, a considerable number of people will be disadvantaged and denied access to justice.

The Government fancifully called the original legislation the Access to Justice Act. My view is that it should be called the Denial of Access to Justice Act, and the Bill demonstrates why. Under the Legal Aid Act 1988, the initial advice and assistance available to those facing criminal proceedings includes limited support in court. By contrast, it is unlikely that section 13 of the Access to Justice Act 1999 will now allow the Legal Services Commission, via the criminal defence service, to fund advocacy services in situations such as making a bail application or representing an accused person who is at risk of being imprisoned. Equally, it may well inhibit the representation of someone at risk of being imprisoned for failure to pay a fine or obey a court order.

Those are injustices that the Bill is, sadly, needed to correct, but my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) is entirely correct to draw to our attention the deficiency of the original Act and the arrogant and high-handed way in which the Government introduce important legislation.

Help granted in accordance with section 14 and schedule 3 of the 1999 Act will no longer be available to individuals in the circumstances covered by the existing assistance by way of representation—ABWOR—arrangements to which the Minister referred, which form the basis of the duty solicitor scheme. The Act fails to provide assistance in many of the areas in which it is currently available, thus derogating from existing individual rights.

Moreover, the rights concerned are almost certainly protected by article 6(1) of the European convention on human rights, with which we were assured at the time of its enactment, the 1999 Act would conform. It is perhaps instructive to remind ourselves that it was the current Defence Secretary who gave us that assurance here, and no less august a personage than the Lord Chancellor who did so in the other place.

Mr. Bercow

That is all right, then.

Mr. Garnier

One would like to think that it was all right, but unfortunately the Government have now realised that the 1999 Act does not comply with the convention, so we need this two clause Bill to ensure that it does. I notice that on this occasion it is the junior Minister, who is here today, who has put his reputation on the line by saying that the Bill complies.

Mr. Forth

What reputation?

Mr. Garnier

Reputation and self-esteem need not be the same thing.

Now that these regrettable defects have been disclosed to us, it is right to correct them as quickly as possible. I take on board the concerns of my hon. Friend the Member for Buckingham about the retrospective nature of the Bill, but now that my hon. Friend has heard the Minister"s explanation, I hope that he will be reassured. Had I thought for a moment that an error would have been made or an injustice done to the integrity of the legislation by introducing retrospectivity, I would have been the first to complain.

My right hon. Friend the Member for Bromley and Chislehurst may have something to say on the matter, but it is probably right that the Bill will have received Royal Assent by 2 April. An error of this magnitude serves to amplify the Opposition"s frequently expressed concerns about the quality of representation that the public will receive from the criminal defence service. Those are directed in particular at the proposals to establish a salaried criminal defence service.

During the passage of the Access to Justice Bill, the Lord Chancellor envisaged a salaried service playing a role only where there was clear evidence that the private sector was unable to provide in a particular location services of an acceptable quality and quantity. I want to be assured, as did other speakers on the subject in the other place, that before establishing salaried defence lawyers in a particular location, a proper cost-benefit analysis will be undertaken so as to compare the merits of such an initiative with the alternatives available through the private practising profession.

The Minister, more than anybody else in Government, must be aware that there is practically a state of war between the Law Society and the Government and his Department over the funding of the fee structure behind the legal aid system for solicitors practising in criminal law. As I understand it, the Law Society has advised its members to boycott any agreements with the Government in respect of criminal representation work.

I hope that the Minister will be able to tell us that, for once, he is taking a rather less aggressive and more sensible attitude towards the complaints of lawyers who find that the Government"s activities are wholly unconducive to the provision of justice. I trust that he will be able to assure me that he has every intention of respecting the guarantee in section 15(4) of the 1999 Act that no one can be compelled to be represented by a salaried lawyer employed by the criminal defence service.

We had a great deal of hot air, if I may say so, from the Home Secretary earlier this afternoon, when he was thumping on about what the Government have done and intend to do about the criminal justice system. More to the point, the Bill demonstrates how easy it is for a high-handed, careless and thoughtless Government to get things wrong. This little Bill demonstrates a whole host of faults that we could find with the Government. I am delighted that they have at last seen the error of their ways and are bringing the legislation forward so that the original legislation can comply with the European convention on human rights. I trust that they will in future be rather more humble when it comes to trying to force their legislation on to the House of Commons.

7.2 pm

Mr. John Burnett (Torridge and West Devon)

It is uncontroversial to say that the old advice by way of representation scheme was useful. It was a cheap and relatively informal method of providing a limited degree of assistance in certain circumstances. It would be unfortunate if it turned out that similar assistance by way of advocacy was not available under the Access to Justice Act 1999, and for that reason, in the other place and here, we shall support the Bill.

It would be wrong if the category of those entitled under section 13 of he 1999 Act were not widened to include those subject to criminal proceedings. We welcome that change—individuals subject to criminal proceedings will be covered by this assistance, as well as those under investigation or subject to investigation.

The Government intend that in future at least some of this work will be done by their salaried defender service. Along with the Conservative party, we strongly opposed, as a matter of principle, the introduction of salaried defenders. There were many good reasons of principle for doing so, not least conflict of interest. That the state should be prosecutor, defender and judge in its own cause is alien to us and to anyone in the House. [Interruption.] It is anathema, as the hon. Member for Buckingham (Mr. Bercow) says.

Will the Minister confirm that if the Government introduce a salaried defender service, defendants will always be able to choose either a lawyer from private practice or a state defender? We had long debates during the passage of the Access to Justice Bill, as it then was, about such a choice. It was the contention of the then Minister—now Secretary of State for Defence—that choices made by individuals should be irrevocable. There was a lot of debate at the time about the unfairness of that attitude. If an individual who was under arrest at 4 o"clock in the morning made a choice, and then, having sobered up 12 hours later, wanted to choose another defender—perhaps a private practice defender—should he or she be bound by that first choice? I hope that the Minister will be able to give us some comfort tonight on that point.

Mr. Lock

Is the hon. Gentleman asking for a wider guarantee on choice of lawyer than that contained in section 15(4) of the Access to Justice Act 1999, which guarantees that no person shall be required to accept a salaried defender? If so, will he formulate precisely what he seeks?

Mr. Burnett

I am asking the Minister whether, if a defendant chooses at 2 or 3 o"clock in the morning to be assisted by a salaried defender, that individual—in the space of one or two days or up to a week—will be able to change that choice, removing instructions from the salaried defender in due course and placing them with a private practitioner, or, for that matter, vice versa? The unfortunate irrevocable nature of the initial choice caused strong debate in the House when the Access to Justice Bill was debated.

Another point that caused some discussion at that stage and to which an adequate answer was never really given concerned which Department of State would operate the state defender system. Will the Minister confirm that if a state defender system is set up it will never come under the aegis of the same Department as the Crown Prosecution Service?

I understand that there is a Scottish pilot scheme for the state defender system. I believe—it has been reported to me, in any event—that its operating costs are well in excess of budget. Will the Minister confirm that, and will he confirm the extent of the excess over budget? Will he also confirm that the alternative sty to defender system is likely to be more cost-effective and provide more value for money than the system already provided by private practice?

7.8 pm

Mr. David Heath (Somerton and Frome)

I rise with some trepidation, but I wish to speak for two reasons. First, I think that matters of justice and the law are too important to be left to lawyers exclusively. Secondly, I spent an extremely instructive day last week at my local magistrates court in Frome talking to the practitioners who are engaged in such work at out the situation that they see developing. I must say that one reason for my visit was my hope that we will still have a local magistrates court in the foreseeable future. I have grave doubts about the policies being pursued by the Lord Chancellor"s Department on the smaller courts.

I was struck by salient points made by solicitors with whom I talked about the consequences for their profession of the Bill and the Access to Justice Act 1999. I do not dissent from the views expressed by either my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) or the hon. and learned Member for Harborough (Mr. Garnier). Like them, I welcome this correction to the 1999 Act, even if it is extraordinary that the House should be asked to correct that legislation. A little humility from Ministers would be entirely appropriate, although we can, perhaps, expect nothing of the sort from the Lord Chancellor: we seem to have developed the new maxim that being Lord Chancellor means never having to say sorry.

There is an extraordinary lacuna in the Bill on the critical point of representation of people in legal proceedings. It is extraordinary that the Government should have certified that the 1999 Act conformed with the Human Rights Act 1998 and then found such an omission.

My first point echoes what my hon. Friend the Member for Torridge and West Devon had to say about salaried defence lawyers. It would be entirely inappropriate for the state to sponsor investigation through the police, prosecution through the Crown Prosecution Service and defence through a salaried defence lawyer. It would be inappropriate for all those people to be principally responsible to a Minister. That would not transparently represent justice done, and we should be careful about proceeding towards overall nationalisation of the processes of justice.

My more important point is about how the Bill will work in practice from 2 April. The Parliamentary Secretary in the other place made the point on Second Reading there that the principal practitioners who will provide the duty solicitor service at our magistrates courts and police stations will remain private practitioners. He said that 3,000 or more firms are engaged in that process. All would be well if all of them remained involved, but, having spoken with Mr. Killah and Mr. Bannister at my local court last week, and having received written submissions from Mr. Howlett and Mr. Greenwood, I do not believe that they will. In some parts of the country, particularly outside the conurbations and cities, we face a grave situation from 2 April.

As the hon. and learned Member for Harborough said, the clear advice that solicitors are receiving from the Law Society is that they should not sign the new contracts being offered by the criminal defence service. That call is clearly being heeded by a great many—if not the majority—of the solicitors in private practice who are providing the services that the Bill addresses.

Unless something changes, on 2 April not a single solicitor in my constituency will be providing the service. There will be but one in Bath, where every other solicitor has signed a declaration saying that he or she will not sign the contracts. There will be no solicitors in Bristol to provide services under this franchise. The position is grave.

It would not be appropriate for me to go into the details of the contract while we are on Second Reading, but solicitors have made good points about the bureaucracy involved—I accept that it is less than it was originally, but it remains significant—about liability, and about unilateral changes that may be made by the criminal defence service but not by solicitors" practices. The level of remuneration has also been mentioned, although I do not believe that it is a prime consideration for many solicitors who are essentially vocational in their attachment to a rather unenviable area of legal work.

Not a single solicitor who has written or spoken to me has questioned the need for some regulation, for audit or for a contract. They simply say that what is on the table at present is not acceptable. Ministers have previously hidden their intentions behind the impression that they are dealing with fat-cat lawyers, those whom we naturally revile and who are making themselves rich at the expense of the defendant or the taxpayer through the legal aid system. That is transparently not the case, however, for those solicitors in small magistrates courts who, in situations in which not many of us would wish to be, act as duty solicitors who are carried by the other members of their partnerships who do much more lucrative work elsewhere in the legal system.

I have been given a clear understanding that unless matters change, people will flee criminal work, telling their partners that they were wrong to cross-subsidise criminal work with civil or other work.

Mr. Lock

I assure the hon. Gentleman that the current debate between the Legal Services Commission and the solicitors considering signing the criminal contract has nothing to do with fat-cat lawyers. It is about solicitors providing important public services, paid for by the taxpayer, to vulnerable clients for a modest return. It is about important services and the controls and contractual structure necessary to ensure a guarantee of quality for both the commission and the client as well as a proper, though not excessive, return for the solicitor. We must get that balance right. I have spoken many times on this matter and have never raised the issue of fat-cat lawyers in connection with the contractual dispute. I hope that the hon. Gentleman will be reassured by that.

Mr. Heath

I am grateful for that helpful intervention, but the Minister has simply underlined the fact that no matter how far advanced the negotiations are, they have not produced a satisfactory result. He merely highlights the fact that we may, in only a month and a half, have a serious problem with the administration of criminal justice in magistrates courts outside the conurbations. If so, Ministers will find themselves in a great deal of difficulty—perhaps at an extremely inopportune moment. They will face people who are properly addressing their concerns through the Human Rights Act 1998, such as prisoners who have not been properly represented. We have before us the makings of a complete breakdown in our system of local justice, a system that we prize and which it is absolutely essential to maintain.

The Bill restores advice by way of representation—so-called advocacy assistance—and that goes some way towards ensuring an unbroken maintenance of the traditional right of local representation. However, that can be mediated only by an effective local defence service, and there is a danger that that will not exist within the space of a few brief weeks. Ministers must address the problem urgently: it may not yet have hit the headlines, but it assuredly will do so across most of the country that is outside large cities and away from large practices. We may face an irrevocable breakdown in relations with the important professionals working within the local justice system.

7.20 pm

Mr. Eric Forth (Bromley and Chislehurst)

I have been a Member of the House long enough to know that, when a Minister sidles up to the Dispatch Box, assures us that a Bill is small and technical but important and then claims that he has the support of the Opposition, those are very good reasons to be extremely suspicious of what on earth is going on. As we listened to the rather inadequate explanations offered by the Parliamentary Secretary, Lord Chancellor"s Department, of this allegedly small, technical but very important Bill, my suspicious were strengthened.

In my notes of the Minister"s remarks, I identified several headings: provenance, retrospection, confusion and public expenditure. Coming to the debate as a layman, gratuitously sticking my nose into esoteric legal matters, I am happy to say that I was greatly assisted by the explanatory notes not only for this Bill but for the Access to Justice Bill, which I found most helpful when I tried to satisfy myself as to what on earth we are attempting to do.

I shall trot briefly through my headings, with some references to the explanatory notes, before analysing the Bill itself. I assure you, Mr. Deputy Speaker, that I shall attempt to make all my remarks strictly relevant.

On provenance, the Minister was forced to admit, under cross-examination from my hon. and learned Friend the Member for Harborough (Mr. Garnier), that the Bill turns out to be all too good an example of a measure that has arisen from an ill-considered piece of prior legislation— the Access to Justice Act 1999. As the Minister confessed, that measure needed a large number of amendments, which were made on he hoof—the Minister did not use that expression, but I paraphrase him in order to be helpful. The attitude taken by the Labour Government to the legislative process has become all too familiar: they start with an ill-considered Bill; it is hacked around, amended and altered in another place; it then returns to this place and, usually with wholly inadequate time, is amended or—as the Government would put it—further improved. Thus, we have a Bill that seeks to correct a lacuna—perhaps even, lacunae—brought about by the Government"s own handling of the prior legislation.

That would be bad enough but, as a direct result of all that, we are being asked to accept the worrying element of retrospection that has entered the process, which we are told is essential. Why has that element arisen? The key is helpfully given—as ever—in the Bill"s explanatory notes, paragraph 4 of which helpfully states: It was always the intention that such limited representation would continue to be available in the same circumstances. The Government have told us with rare and almost disarming honesty that they had intended something to happen under the prior legislation, but had not quite managed to deliver it. No doubt that was due to the rush of ill-considered amendments made to that measure.

The Government go on to tell us why we are considering the Bill: There is some doubt that the interaction of sections 13 and 14 of the Access to Justice Act 1999 allows for this limited form of representation. Having confessed to their inadequacies, they explain: The Bill seeks to remedy those doubts by amending section 13. The worrying part is the statement that As it is uncertain whether the Bill will receive Royal Assent before 2nd April 2001"— that is indeed uncertain, as I shall discuss in a moment in relation to the possible timetable— the Bill is drafted to have retrospective effect to that date. The Government are telling us that there has been a mistake; there is a lacuna that they want to correct. The implication is that the measure has been given the lordly stamp of approval in another place, so we do not have to look too closely at it. We now have future retrospection entering the legislative process. That may be unique—it may be a novelty— but for the Government to say that they are introducing provisions that will have retrospective effects just in case what they thought would happen does not happen seems to introduce a multiplicity of doubt and uncertainty to the process that cannot do us, or it, any good.

Mr. Bercow

Does my right hon. Friend agree that the use of the words "then is some doubt" comes as near to an admission of ministerial fallibility as we are likely to encounter during this Parliament? Does he further agree that, if Ministers have reached that judgment on the strength of advice from Government lawyers, it would be helpful on this occasion to breach the convention that such advice is not published so that we can see it for ourselves? Alternatively, if Ministers have come to that view as the result of outside representations, may we be told from whom those representations have come?

Mr. Forth

"In your dreams" is all I can say to my hon. Friend. The day that that happens we shall all be so astonished that proceedings may momentarily grind to a halt—although they will not do so on this occasion, I assure you, Mr. Deputy Speaker. Perhaps, from now on, the Minister should be known as "Doubtful Lock", or something of that kind.

I agree with my hon. Friend the Member for Buckingham (Mr. Bercow) that we are witnessing a rare admission of near fallibility, but I regret that, in my interpretation of what is happening, that admission is altogether spoiled by the Minister"s telling the House that he really does not expect us to take much interest in the measure as it is a relatively small matter; that he expects it to be nodded through quickly; and—as I shall discuss when we come on to the debate on to the timing of the measure—that the Government expect it to be completed without too much fuss, in spite of the fact that we are correcting a measure that arose from exactly the same approach on a previous occasion.

The Minister compounds the felony by saying that, because the previous Act was made a mess by rushing it through with too many amendments, he is asking the House to rush through another measure. The correction of those errors is to be rushed through with as little scrutiny as possible. That is not a good harbinger of success.

Sir Nicholas Lyell (North-East Bedfordshire)

I am most grateful to my right hon. Friend for giving way, especially as I was unable to take part earlier in the debate. He raises an extremely important point. Does he understand from the Minister"s explanation that, if the Bill is enacted and if regulations are made under it, actions that are currently unlawful will be rendered lawful, or will it be only those actions that take plat after 2 April, when the Bill has not yet become law, that become lawful?

Mr. Forth

My right hon. and learned Friend challenges me to explain what the Minister thought he was saying. That challenge may defeat even me. In a genuine attempt to help my right hon and learned Friend, I can only draw his attention to explanatory notes, which state: As it is uncertain whether the Bill will receive Royal Assent before 2nd April 2001 (when that section is commenced)"— that is section 13— the Bill is drafted to have retrospective effect to that date. I take that to mean that the retrospection would start on 2 April 2001; it would not have effect before that date. That is what I was referring to when I talked of the novel concept of future retrospection. I must confess that it defeats me. That is as much help as I can offer my right hon. and learned Friend, but I am sure that the Minister will clarify all when he winds up this little debate at a later hour. The point puzzles me as much as it does my right hon. and learned Friend.

Talking of dates—as we now are because the date is mentioned in the explanatory notes—I do not want to pre-empt the impassioned debate that we shall hold shortly on the programme motion, except to note that it is highly relevant at this stage. Thai is because we are in the rather unusual position that it is widely assumed that an election may be pending. The House must take account of such facts. We cannot operate in a bubble and pretend that nothing is happening outside this place. There is considerable speculation as to the possibility of an early Prorogation, Dissolution of the House and election.

That is material in this case because, if we agree to the Bill"s Second Reading tonight, its consideration in Committee would end on 8 March under the timetable that the Minister suggests in the programme motion.

If I am lucky enough to catch your eye, Mr. Deputy Speaker, in the debate on the programme motion, I want to say something about that date, but let us take it as given at the moment. After that date, Report and Third Reading would have to take place and, if the Bill were to be amended—given the mess we are already in, amendments may be required in Committee, even to this Bill—it might be necessary for the matter to return to another place. Self-evidently, there might not be enough time, especially if an election were to take place on 5 April, one of the most widely canvassed dates, and with the postponement of the countryside rally announced early today, surely an even stronger runner.

I repeat my earlier challenge to the Minister: what does he think will happen if Dissolution of this Parliament occurs before the completion of even the accelerated timetable that he suggests? Even his retrospection will not save him then, because he will not get it without Royal Assent. Against a background of what may be much greater events, he is attempting to put us under unreasonable time pressure given the Bill"s desired effect, as he has put it. Thus the challenge, which was echoed by what my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) said earlier: if those circumstances effectively leave a group of people without legal representation, what does the Minister have to say to us and them?

Why has the Minister waited until now to introduce this allegedly very important Bill, with its unreasonable timetable, given the backdrop of a possible election? Unless he is extraordinarily fortunate, all those matters seem to conspire against him, and the lacuna that he seeks to remedy under the Bill will remain if Royal Assent is not given. I hope that he will be candid with us about those matters. He tried to take refuge behind an old shibboleth, saying that he would not speculate on whether the election will be held soon because that is a matter for the Prime Minister. We all know that, but the Minister owes it to the legislative process and to the people who may well go without representation unless the Bill is passed to explain exactly what he envisages will happen if the process that I describe occurs.

The matter appears to revolve around a confusion that has arisen between the terms "investigations" and "proceedings". I confess that the fact that I am not a lawyer will prove a considerable handicap, but my layman"s reading of the Bill suggests that the difficulty has arisen because of the difference in wording between sections 12(1) and 13(1)(b) of the original Access to Justice Act 1999. Throughout section 12 reference is made to criminal investigations or criminal proceedings", yet the word "proceedings" does not appear in section 13, which is unhelpful. If my reading is correct, that is where the matter originates, but what puzzles me is why that element of doubt has arisen, and I should appreciate the Minister"s guidance in due course. Sections 12 and 13 seem to contain what I shall call wide savings provisions. Section 12(2)(g) refers to such other proceedings concerning an individual, before any such court or other body, as may be prescribed"— the good old catch-all phrase with which we are increasingly familiar in such Acts. Section 13(2)(g) coincidentally refers to the commission doing anything else which it considers appropriate for funding advice and assistance.

Mr. Lock

Perhaps I can assist the right hon. Gentleman. If he turns to section 14 of the 1999 Act, he will see that subsection (1) provides for the grant of a representation in specific criminal proceedings. That is the reference to criminal proceedings. The right hon. Gentleman helpfully refers the House to the fact that section 13(2)(g) provides for the funding of advice and assistance. However, it is not clear from section 13(1) or, indeed, from section 13(2)(g), whether that advice and assistance includes advocacy in a case that is not subject to investigation because it has become a matter of proceedings before a court.

Mr. Forth

I am grateful to the Minister for that helpful explanation, which takes us some way further in satisfying ourselves about the nature of the lacuna that he and my right hon. and learned Friend the Member for North-East Bedfordshire described earlier.

Mr. Bercow

I hope that my right hon. Friend will not err on the side of unnecessary and excessive generosity in this matter because, although the Minister might well now have an extremely effective grasp of the Access to Justice Act 1999, it is a great pity that he and his hon. Friends, especially the current Secretary of State for Defence, did not have such a grasp at the time. Will my right hon. Friend clear up the confusion that still exists in my mind as to exactly when it occurred to the Government that the 1999 Act might not achieve what it was intended to achieve and when exactly therefore it was decided to introduce this supposedly modest measure?

Mr. Forth

My hon. Friend makes a good point. The Minister coyly failed to give us that information; it has not yet emerged, but it is crucial because it relates to the matter of timing, to which I referred a moment ago. If the matter had been identified earlier and the Government had been able properly to introduce this corrective Bill in another place and then here, the difficulties might still have arisen, but not in the same way. The Minister would not be in the position in which he now finds himself of expecting, with the arrogance that we have come to expect of the Government, that the Bill will be rushed or nodded through with scant regard under the timetable that the Government need to get themselves out of this hole. Had the matter been dealt with on a proper time scale at an earlier date, it would have been more certain and more measured, and proper scrutiny could have taken place, instead of which we now face the possibility of truncated consideration in Committee and the Bill"s Third Reading and further stages at risk for the reasons that I have given. Perhaps, as a result of my hon. Friend"s helpful intervention, the Minister will explain matters further. We might be more sympathetic to his request if he were prepared to tell us why the Bill has been introduced at this very late stage, putting him in such an embarrassing position.

I am grateful to the Minister for the further explanation that he has given as to the nature of the problem that we are seeking to remedy, but that only brings us to the intriguing reference in the explanatory notes to public expenditure, to which my hon. Friend referred earlier. Rather teasingly, paragraph 28 of the explanatory notes states: The Bill will not increase public expenditure. That gives rise to another question: either the Bill is simply intended to validate the existing services or legal support given to people subject to criminal investigation or proceedings, or it is intended to give them something in addition.

I am not sure whether I can simply take as read the statement that the Bill will not increase public expenditure, because either the claims that were originally made when the 1999 Act was passed have not been fulfilled, or something additional will be provided if the Bill receives its Second Reading, in which case I should have thought that public expenditure would inevitably increase.

Mr. Lock

It may help to answer the right hon. Gentleman"s question about public expenditure if I point out what would be likely to happen if the duty solicitor scheme were to be abandoned. In those circumstances, the defendants who have a right to representation would have their cases adjourned and would have to go to solicitors to seek a right to representation under section 14(1) of the 1999 Act in respect of individual cases. The cases would come back before the court on a later occasion and justice would be delayed. The overall cost to taxpayers would therefore probably be considerably higher.

Mr. Forth

I am grateful for the Minister"s explanation. However, almost all the Members who have spoken in the debate have suggested that the answer depends, to put it crudely, on the relationship between the services provided by private and public sector sources. Our view of the Minister"s analysis would depend rather more on the view that one takes of those relationships, which are not at all clear to me. I still have my doubts about the assertion in the explanatory notes: The Bill will not increase public expenditure". However, I shall leave the matter at that. The Minister has provided his explanation and I shall leave it to others to judge whether it is the correct interpretation.

I have concluded my preamble and I now come to the Bill itself, in relation to which further explanation is required. I am keen—at least, initially—to read the text of the Bill literally to see whether it means what it says. Clause 1(1) states: Subsection (1) of section 13 of the Access to Justice Act 1999"— the Act that we have been discussing— shall be treated as having been enacted with the substitution of the following for paragraph (b) and the words after it". Does that literally mean what it says? Does that constitute the entirety of the remaining provisions in section 13, which appears to consist of more words than those simply in paragraph (b)? The wording of clause 1(1) is rather unusual. I seek clarification as to whether it refers to paragraph (b) only or to that paragraph and all the following words.

New section 13(1)(b) of the 1999 Act contains the words: in prescribed circumstances, for individuals is who— (i) are not within paragraph (a) but are involved in investigations which may lead to criminal proceedings". I am again at a disadvantage in that I am not a lawyer, but I wonder whether that wording is sufficiently clear as to be reliable. The phrase "investigations which may lead" appears to be very vague and all-encompassing and, in some circumstances, that could lead to difficulties.

The same point applies to my reading of new paragraph (b)(2), which contains the words: are before a court or other body in such proceedings". My legal friends and colleagues—and perhaps even the Minister—may well be able to reassure me that the term "or other body" is sufficiently clear and can be relied on not to open up what, on the face of it, could be a wide range of possibilities. As the whole point of the Bill is to provide the clarification and the reliability that patently did not appear in the 1999 Act, I wonder whether the words are sufficiently reliable for us to go forward with confidence and give the Bill a Second Reading.

Clause 1(2) provides the retrospective element in the Bill. It states: Regulations under subsection (1) of section 13 (as amended above) may include provision treating them as having come into force at the same time as that subsection. That odd form of words gives us the future retrospection to which I referred earlier and which, I have had difficulty getting my mind round.

Overall, I am worried not just by the lateness of the Bill"s introduction or the speed that the Government are relying on to make it effective; that is bad enough. I have grave doubts as to whether its wording is sufficiently robust and reliable to do what it is intended to do. Given that the Bill is designed to correct earlier errors, one would have hoped and expected that it would be above and beyond suspicion. I do not believe that it is, and I am not yet satisfied that the retrospective element should be accepted as readily as the Minister suggests.

This allegedly small, technical and uncontroversial Bill is not all those things. Small it may look, but it has potentially wide ramifications. It carries within it many implications for the legislative process and for the Government"s attitude to that process. The fact that the Bill has been introduced to correct the Government"s earlier errors, which were caused by the speed at which they legislate and by the excessive number of amendments leads me to believe that the Bill requires much more scrutiny than the Government may have imagined. Its timetable may be more at risk than the Minister glibly suggested.

The House is right to give attention to such a Bill. I look forward very much to the Minster expanding on his introductory remarks as he seeks to reassure us on the matters that I have raised.

7.46 pm

Sir Nicholas Lyell (North-East Bedfordshire)

I am grateful to have the opportunity to take part in the debate, and I repeat my apology for not having been present earlier. I wish to make just a couple of short points that are important to the way in which the country is governed—or, at least in part, significantly misgoverned.

The country is significantly misgoverned because legislation is rushed through. Legislation is often rushed even when we do not face the circumstances pertaining to this parliamentary Session, in which every Bill is being timetabled and in which much important criminal justice legislation is simply being put through in a time that is inadequate for its proper consideration. I know that perfectly well because, like my hon. Friend the Member for Surrey Heath (Mr. Hawkins,) I am currently serving on the heavily truncated Committee stage of the Criminal Justice and Police Bill. That Bill will certainly not receive the scrutiny that it requires.

This Bill follows on from the Access to Justice Act 1999. As my hon. and learned Friend the Member for Harborough (Mr. Garnier) has said in the past and as he probably said before I entered the Chamber, the 1999 Act was simply a legal Christmas tree—an expression that I had not heard before—on which it was possible to hang almost anything. On it are being hung the rights of the citizens of this country and their freedoms when they are brought before a court and charged with a criminal offence and their liberty is at risk of being removed by the court.

It is plain that this Bill was introduced because the need for the representation of the citizens in those circumstances was overlooked when the 1999 Act was passed. I do not blame the Minister for that. I was a junior Minister in the then Department of Health and Social Security and—happily, before I joined the Department—I know that mistakes were made in legislation and had to be corrected in what were colloquially known as the Social Security (Cock-up) (No. 1) and the Social Security (Cock-up) (No. 2) Bills. I would describe the present Bill as the Access to Justice (Cock-up) (No. 1) Bill.

It is right that mistakes should be corrected, but it is not right for corrections to made without our noting that errors occur when legislation is not properly scrutinised. That happens very often these days.

Mr. Garnier

Does my right hon. and learned Friend accept that this is what happens when Parliament, forced by a huge and thoughtless Government majority, allows Ministers to create legislation by secondary powers? He kindly referred to me and was very perceptive about what I said this evening—I did use the expression "Christmas tree". Such legislation is exactly what happens when Governments try to give themselves powers to make legislation off the field. Ministers run back to their Departments to draw up legislation, and they let through provisions that they might have decided against if they had thought about them and had they been debated on the Floor of the House.

Sir Nicholas Lyell

My hon. and learned Friend is absolutely right; that is exactly what happens. The country should sit up and take notice of the way in which it is being misgoverned. Another example of that misgovernment occurred this afternoon, and it is highly relevant to this aspect of criminal justice, which concerns the way in which people can be brought before the courts.

The criminal defence service is designed to reduce the standard of defence that is available to the citizen when he is charged with a crime. I see the Minister frowning at that suggestion, but if he is seriously saying that a salaried service will be the equivalent of the current service, he needs to make his case. If the Government receive another term of office, as I hope they will not, and if what is being spun in the newspapers today becomes law—curiously, it did not find reflection in the Home Secretary"s statement earlier—the citizen who has a right to receive representation under the criminal defence service will lose the right to be brought before a jury and will simply have a right to come before a legally qualified chairman and three lay magistrates, which is not the same.

It is wrong that the House is being asked to rush through legislation that fundamentally truncates both the rights of citizens who find themselves in the dock and the democratic rights of UK citizens to control our criminal justice system by their efforts as jurors, as they do in their hundreds of thousands every month,

Mr. Nick Hawkins (Surrey Heath)

My right hon. and learned Friend is talking about rushing legislation through the House. Does he agree that on the first day back after a short recess, it may be relevant to recall that during that recess we had the revelation of the scandalous way in which the Lord Chancellor is using his time—

Mr. Deputy Speaker (Sir Alan Haselhurst)

Order. The hon. Gentleman is going far outside the scope of the Bill. The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell), too, is concentrating rather more on the Act that is being amended than on the Bill itself.

Sir Nicholas Lyell

If I have concentrated too much on the Act rather than on the Bill that amends it, and if that is out of order, Mr. Deputy Speaker, I will attempt to step back into order.

I centre my remarks on the criminal defence service, which is the subject of the Bill. Its inadequacies have been shown up by the very need to introduce the Bill. The standard of representation that is available to someone who needs defence is an important matter of civil liberty. I am grateful to have caught your eye, Mr. Deputy Speaker, and to have had the opportunity to take part in the debate and make that point. I hope that the Government will take to heart the point that rushing legislation through the House is not in our parliamentary tradition, and that if they receive another term of office, they will not do so again.

7.54 pm

Mr. Lock

This has been an interesting debate—

Mr. Deputy Speaker

Order. The Minister requires the leave of the House to speak again.

Mr. Lock

I apologise, Mr. Deputy Speaker. With the leave of the House I will respond to the debate. As I am speaking for a second time, I shall be brief.

I am grateful to the hon. and learned Member for Harborough (Mr. Garnier) for his support for the Bill. He referred to the negotiations on the criminal contract and the criminal defence service which are taking place between the Legal Services Commission and the Law Society. Those negotiations are at an advanced stage. As a lawyer, the hon. and learned Gentleman knows that lawyers are skilled negotiators not only on behalf of their clients but on their own behalf, and one would expect them to exploit the position to their utmost advantage. I am confident that the contract that is available at present is fair. I am grateful to the firms of solicitors that have signed the contract to date, and we look forward to more firms signing in due course.

The hon. and learned Gentleman trotted out his usual attacks on the Access to Justice Act 1999. Of course, we do not know what his party proposes for criminal contracts, so we have no idea what the alternative is. In civil law, the alternative offered by the Opposition is to give £500 million back to the Treasury and entirely abolish civil legal aid, which would hardly create access to justice.

Mr. Garnier

If the Minister wishes to respond to the points that I made in the debate, I will be happy to listen to him. If he wishes to raise erroneous Aunt Sallies about another debate, he should confine his remarks to another place.

Mr. Lock

I appreciate that the hon. and learned Gentleman is embarrassed about his civil justice proposals, so I will not pursue the matter.

The hon. Member for Torridge and West Devon (Mr. Burnett) raised a serious issue, unlike those hon. Members who spoke before him, when he referred to the independence of salaried lawyers. I am sure that he has read the remarks of the Canadian Bar Association which are set out in the Government"s consultation paper on the establishment of the criminal defence service. The association said that it should be obvious that it is the fact of third-party payment, not the nature or form of that payment, that creates the potential conflict when the paymaster is the public purse. The hon. Gentleman rightly referred to concerns that a salaried lawyer employed by the state may lack independence compared with someone who receives money from the state but is in private practice.

The evidence from well-structured and well-funded salaried services around the world is extremely positive and shows that a mixed system provides not only value for money for the taxpayer but independent representation for the defendant. I refer the hon. Gentleman to the remarks of Judge Helen Halpert of the King county superior court, formerly of the Seattle municipal court. That experienced judge said: Most judges, if they were offered the choice between an agency lawyer or a private lawyer, would choose the agency lawyer. The independence of public staff defence lawyers, where they are well established and well financed, means that they are thoroughly committed to their clients.

I accept, of course, that there are examples of underfunded agency lawyers and staff lawyers in many Commonwealth countries who do not provide a good service. Comparing like with like, however, the evidence in favour of such a service is very strong. It is the fact of third-party payment, not whether that payment is made to someone who is employed or to someone who is self-employed, that makes the difference.

The hon. Member for Torridge and West Devon made an important point about the choice of the defendant. I am sure that he saw our consultation paper on the issue, which raised a number of questions about the appropriate cooling-off period. No decisions have been made on that. I hope that the hon. Gentleman took the opportunity to respond to the consultation and that we have therefore had the opportunity to hear his views, in addition to those voiced by others.

The hon. Member for Somerton and Frome (Mr. Heath) made—

Mr. Burnett

I made another point. I hope that the Minister can reassure the House that the Crown Prosecution Service and the state defender service will never come under the aegis of the same Department of state.

Mr. Lock

The hon. Gentleman did raise that point, on which I cannot reassure him other than by saying that the Government have no plans to do that. The proposals set out by my right hon. Friend the Home Secretary earlier this afternoon plot a course for the future of the criminal justice system. They plainly envisage the separation of the departmental responsibilities of the CPS and defence services. I hope that that will remain the case. I believe that it is only right and proper that it should. However, one can never say never. A Government, possibly in the far distant future and of a different party, could form another view.

Sir Nicholas Lyell

In those circumstances, how can it be an objective of Government policy to ensure that an extra 100,000 prosecutions take place each year when that is matter not for the Home Secretary but for the Attorney-General?

Mr. Lock

If the right hon. and learned Gentleman looks at the document that was presented this afternoon, he will see that it is a result of the three Departments that are responsible for criminal justice working together. The document had to be presented to the House by one Department—in this case, the Home Office—but it covers the role played within the overall criminal justice system by departments that are responsible to the Home Office, and the role of my Department and that of the Attorney-General.

The right hon. Member for Bromley and Chislehurst (Mr. Forth) was entertaining as always. Retrospection will be needed only if Royal Assent is granted after 2 April. The Bill"s provisions on retrospection will not be required if Royal Assent is granted before 2 April. The right hon. Gentleman is perfectly right to say that no provisions will come into force if there is no Bill and that, therefore, there will be no provisions to which retrospection will apply. As the CDS comes into force on 2 April, it will have the financial consequences that I outlined. In those cases for which representation is required, a representation order will be needed under section 14. That is instead of utilising the duty solicitor provisions in section 13.

I hope that the right hon. Gentleman will agree that it is in the interests of the operation of the criminal justice system that retrospection should not happen. He was right to say that the Bill arises out of a lacuna. This is not the first time that the matter has beer brought before the House. I could not describe the Bill better than the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell), who eloquently spoke of taking forth legislation in similar circumstances as a junior Minister. It is in the interests of the criminal justice system to allow the matter to proceed smoothly.

The right hon. Member for Bromley and Chislehurst also asked about the meaning of clause 1(1). I assure him that it substitutes section 13(1)(b) with a new paragraph (b) and contains the words that will follow it. That is why the words and the assistance which the Commission may consider appropriate and so on are included.

Mr. David Heath

I rise only to remind the hon. Gentleman that he gave every impression that he was about to respond to my points when my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) intervened, and no more has been said on the matter.

Mr. Lock

The hon. Member for Somerton and Frome raised the issue of the independence of salaried defenders and the concerns raised by lawyers. I dealt with that when I responded to the hon. Member for Torridge and West Devon. He also asked whether lawyers would sign up to the contracts. Lawyers are experienced negotiators. They will negotiate in a tough manner, not only for their clients but for themselves. We are confident that the criminal contract is fair. We are grateful to the solicitors who have signed up to it and I am confident that the solicitors who are negotiating hard will recognise that the settlement on the table is fair. I hope that they will sign up to it; indeed, I expect them to.

Mr. Heath

I accept that a body of solicitors" firms across the country are negotiating in the terms that the Minister describes and will eventually sign up to a contract. However, having spoken face to face with a few solicitors who work in my area, I am convinced that they intend to leave criminal work completely as a result of the process—indeed, some have already done so. That is a loss to the criminal justice system.

Mr. Lock

I do not doubt the sincerity of the hon. Gentleman"s solicitor constituents. However, it is also true that solicitors in mixed practices often find that their private work is considerably more lucrative than public sector work has ever been—and than it would be appropriate for it to be. The proper comparator for lawyers who work for the state is the equivalent amount of money that they would get were they to engage in other work for the state at a comparable level of experience, stress and importance, and not the amount that they would achieve if their client were of sufficient means to be able to pay privately.

To that extent, I accept that in mixed practice firms, the solicitors who are successful in their private practice will generate higher fees than those who work in the public sector. If the hon. Gentleman"s solicitor constituents are comparing the amount that they earn from the state with the amount that they would earn should they successfully obtain private work elsewhere at much higher rates, I understand that that would raise a concern. However, the contract that determines the amount that is available for the public sector financing of legal services is proper and fair.

The right hon. and learned Member for North-East Bedfordshire suggested that the CDS was designed to reduce the quality of defence before a court. I entirely disagree. For the first time, the CDS will ensure that every solicitor who is engaged in a contract has been through a quality assurance system. The state, which will be paying for the services, and the client, who will be receiving them, will be certain that they are being provided by a quality assured lawyer. That has never happened before. Merely qualifying and practising as a solicitor is not sufficient quality assurance to be able to offer services in every aspect of law. Those people who offer services in the criminal sector will have a criminal quality mark. That will reflect a significant improvement in quality, which I hope the right hon. and learned Gentleman welcomes.

Sir Nicholas Lyell

No matter what service is supplied, people have to go through some form of quality assurance procedure. That normally leads to as high a standard as is achieved when people have to compete with others who want to take the work from them. They have to demonstrate their competence month in, month out. It is left to the professional and the lay client to choose an advocate of suitable competence. Is there not a marked distinction between having no choice and simply providing a basic quality that is organised by the state, which is also paying what might well be a modest figure, and an open competitive system of the sort that we have enjoyed for so long?

Mr. Lock

I understand the points made. No, I do not accept that the market is king in this area. I believe that the quality assurance system is important.

The provisions are important. They will allow vulnerable individuals in court and in other hearings limited representation, thereby protecting their interests at a crucial stage, and will avoid delay. I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.