§ 3.26 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone) rose to move, That the regulations laid before the House on 2nd December be approved. [5th Report from the Joint Committee.]
§ The noble and learned Lord said: My Lords, I rise to move the affirmative resolution standing in my name on the Order Paper. The House will have seen, however, that there are two associated sets of resolutions against which the noble and learned Lord, Lord Elwyn-Jones, has given notice of his intention to pray. It is not possible however for me to move the affirmative resolution intelligibly without some reference to the other two, since the one is virtually meaningless without the other two. I trust this will be for the convenience of the House.
§ The subject of the affirmative resolution is the Legal Advice and Assistance (Prospective Cost) Regulations 1985. They do no more than establish an initial upper limit of £90 on the work a solicitor may undertake on his own authority in certain cases. These have to be taken together with two other sets of regulations, namely, the Legal Advice and Assistance (Amendment) (No. 2) Regulations 1985, which make a number of agreed improvements in the usual conditions for advice and assistance, and provide most of the framework for the two-tier scheme which I announced last July. Both of those aspects are completed by the Legal Advice at Police Stations (Remuneration) Regulation 1985, which also prescribe the forms and rates of remuneration for this work. Scarcely less integral than the regulations is the Legal Aid (Deputy Solicitor) Scheme 1985 which the 351 Law Society has made to give effect to the arrangements for a 24-hour duty-solicitor scheme, and which the Treasury and I have now been able to approve. All these four documents form part of a complete system, and are fully interdependent. The loss of any one would make all the others unable to operate.
§ Together, the scheme and the regulations constitute one of the most significant developments in legal services for many years. For the first time it is proposed that special arrangements should be made for legal advice at police stations. In some ways that is a logical conclusion of the whole criminal legal aid system. It will be remembered that the origin of the scheme sprang from the Police and Criminal Evidence Act 1984, which came in turn from the recommendations of the Philips Royal Commission. The Police and Criminal Evidence Act set out to bring order to the tangled area of police powers and procedures. I would hope that alone must be of the greatest value to solicitors and suspects—as much as to the police whose powers are now set out and clarified. But beyond that, the Act—together with the codes of practice prepared under it, which have now received parliamentary approval—have introduced substantial, and new, protection for suspects' rights. In large part these too are clearly set out in the Act, safeguarded and supplemented by the procedures of the codes, and breaches of them by the police are made a disciplinary offence.
§ Included among these rights, and perhaps the most important, is the statutory right to legal advice. This right already exists in the Judges' Rules. These are not satisfactory as they stand, and they will be withdrawn when the Act comes into force. Hitherto the police have been under no statutory obligation to inform suspects of their rights, and only the smallest proportion of suspects seem to have known about them or have chosen to exercise them. The Law Society have estimated this proportion at not more than 2 per cent. of the total. Current expenditure has been somewhere between £1 million and £2 million annually. This is why the Philips Commission originally recommended a more secure and better safeguarded right. They saw that this would involve some resource implications, and so they recommended that the right might be confined to suspects who had been held for six hours or more.
§ This position will change dramatically on the 1st January next, when the Act comes into force. All those arrested will have a statutory right to advice. The Government have always taken the view that the restriction suggested by the Commission (that is the six-hour rule that I mentioned) would make the right inoperable; and they have rejected it. Suspects must be informed orally and in writing (a suitable notice for this is in course of preparation) of that right, and how it might be exercised. They will have to sign their custody record to acknowledge that that has happened, and note their decision upon hearing it. Except in carefully defined individually authorised cases of urgency, the police may not conduct an interview further after advice has been requested until the client has seen a solicitor, if one is available. Under the code, there is also a right to advice—although as circumstances dictate more flexibly administered—for 352 all those who are voluntarily helping the police. I shall refer to these as volunteers. Suitable reinforcing publicity is being prepared in this respect for police stations.
§ The effect is expected to be an enormous increase in the numbers of those requesting advice. Both the Philips Commission's research and the pilot studies conducted by the Law Society suggest that some 20 per cent. of suspects will exercise the new right. What is more, the tighter timetables imposed on the police, within which they must charge or release a suspect, mean that many of these requests will arise outside normal working hours. It is clear that it would be difficult for solicitors to meet such a formidably increased burden of work (it would mean, if I am rightly instructed, over 300,000 requests per annum) without administrative assistance and without arrangements for the periods of the day in which it would be most difficult to reach a solicitor.
§ The Act therefore includes powers for the Law Society to make arrangements for a 24-hour duty solicitor scheme. That is discharged by the scheme that I have been referring to, and will operate through the same regional and local committees which are already successfully administering duty solicitor schemes in magistrates' courts. When a suspect is told of his rights he will be told that he can either have his own solicitor called, if he has one, or a duty solicitor, and that there is a list of the solicitors in the area who are prepared to do this work from which he can choose. If he opts for the duty solicitor, the police will telephone the switchboard which has details of the duty solicitors in the region. That service—which has been the subject of a competitive commercial tender—will be provided by Aircall plc, through nine regional centres. The service will be responsible for finding a duty solicitor for the area and informing him of the details of the request. That procedure aims to ensure that duty solicitors can reach the police station within the timetables laid down. The solicitors, and others who will work under the scheme, will be selected for relevant experience of criminal work and for general ability to advise at police stations. The framework for all this is contained in the scheme.
§ This new departure requires the active participation of all solicitors who do criminal work. On the basis of the Society's pilot schemes, it would seem that of the 300,000 cases annually about a third of cases (that is, about 100,000 a year) will fall to the duty solicitor. These requests will in large measure fall outside normal office hours. The other requests will be to the suspect's own solicitor, and we have been careful to try to ensure that the administration of the scheme does not limit freedom of choice.
§ The existing legal advice and assistance scheme—the so-called green form scheme—of which this is an offspring is designed very much for the usual circumstances in which a client comes fully prepared to see a solicitor but to see him in his office. It follows that the new scheme must be radically altered in order to meet the changed circumstances that I have been trying to describe.
§ In considering this scheme I have of course had to consider the availability of Government finance; more especially those costs already prospectively coming on my own estimates but also of course all the other 353 innumerable claims on Government finance generally; overseas aid, defence, health and social services, education, housing, police, roads, and indeed all the claims on the public purse. The original estimate of the Philips Commission of the cost of what they propose was £6 million a year. But the pilot schemes based on our own decisions indicated that the minimum for which it would be right to budget would be £20 million a year. That means that I am under an absolute obligation to get the best value I can for what I have been allotted.
§ The right to advice is entirely unlimited. But not all cases will require effectively unlimited payment from public funds. Every person arrested will have a right to legal advice. We have drawn up a scheme which we consider will make that effective by ensuring that solicitors will be available under the duty solicitor scheme, and that on average solicitors who visit a police station will be able to give in all cases the average amount of advice which research indicates is now given in a few. That is further supplemented by new remuneration arrangements which will make it easier for a solicitor to provide paid advice over the telephone. All we are doing thereafter is to put a limit on the cases in which it will be possible to get the unrestricted advice to the more serious instances. As I announced last July, that must involve a two-tier system of remuneration.
§ There is, first, in the new arrangements a provision for a standby payment of £60. That £60 will be paid to the duty solicitor in any case, even if his services are not required at all, during the 24 hours when he may be on call, though part may be set off against work actually done. When his services are required, there is a limit on the costs he may incur corresponding to the rather different limits available under the existing green form scheme. At present the figure is £50. If it is likely that more than that will be required under the existing scheme the solicitor must obtain a prior extension from the Law Society before he spends the extra money.
§ Although that can be done very quickly during office hours in an emergency, there is at present no way within the regulations in which that limit may be exceeded out of hours—short of ringing the staff of the society at home. In serious cases at police stations this must constitute a severe constraint and, in our view, it must be modified.
§ The present regulations therefore provide a new limit of £90, instead of the existing limit of £50, when a solicitor is advising a suspect who is arrested in connection with what we know as an arrestable offence—not a phrase, I must say, in which I particularly take delight, but that is the jargon of the trade—as defined by the 1984 Act and that limit is extensible retrospectively if need be. That compares, as I have said, with the present £50 which is extensible but not extensible retrospectively. In passing, I may say that the protection of the Act and its procedures are to be extended to service personnel and the same limit will apply to those being questioned about serious service offences.
§ Since these are likely to be more serious matters—arrestable offences are those, very broadly, for which five years' imprisonment, or more may be imposed—both prolonged advice and perhaps the 354 solicitor's presence at interview or on other matters may be needed. This is why the £90 limit will therefore have to be extensible—and, as I have said, retrospectively if need be—to allow for urgency and working out of office hours. The other regulations in concert achieve this substantial improvement on the present system.
§ But as I have said, the £90 figure, that extensible limit, applies only to arrestable offences. Cases which involve non-arrestable offences, whether or not the person has actually been arrested—and that indicates one of the reasons why I do not like the phrase "arrestable offences"—as must often be the case, and those where he has not been arrested at all, will be subject to the standard green form cost limit of £50 and that £50 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 required in cases of all kinds where average travelling costs apply. Alternatively, it may be possible for him to advise over the telephone for very much less, and I hope that in a very large number of cases that may prove to be the case. In both tiers it will be possible for solicitors to give advice to all the suspects who need it, either personally or by telephone, and make the rights conferred by theAct an effective reality.
§ 3.45 p.m.
§ There have been requests for these categories to be changed, either to different categories or else to allow specific offences to be included. We will, of course, wish to see how the scheme is working in practice. In the light of experience, it may well prove that there is a need for wider scope or for different and more appropriate categories. My own mind is not in any way closed. The Government have undertaken to do research—which is now in hand—on the actual numbers of offences in various classes, which will help us to see whether or not we are on the right lines.
§ There are a number of further improvements which are to be made in the usual green form conditions, whether advice is given by the duty solicitor or the suspect's own solicitor. At a police station, it is scarcely reasonable to expect a suspect to be able to give details and proof of his financial condition or to have money to make a contribution towards the cost of his advice if he is liable, as he would have to do under the existing scheme. The means test and the contribution provisions are therefore entirely removed. Applications by telephone are permitted. The society's prior approval, normally required if an application is taken direct from a child will not be necessary here. A case may be handed from a duty solicitor to the suspect's own solicitor or vice versa and that is facilitated under the arrangements.
§ I will not go into every detail of the remuneration arrangements for police station work, which are contained in the regulations. But it may be helpful if I say something more, briefly, about the basic structure. As I have said, a duty solicitor will be given a standby payment of £60 for 24 hours or pro rata for lesser periods. Up to half the value of that may be set off against the value of work actually done during the period. He will be paid at the rate of £27 an hour for 355 all work, except that outside normal office hours, when that rate of £27 will be enhanced by one-third so that it will be £36 an hour in upper-tier cases.
§ A flat rate fee of £10 is introduced for advising over the telephone, together with a charge of £1 for routine telephone calls—that is, I suppose, telephone calls in which advice is not given—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 arrangements. They will be paid £27 an hour for advice and £17 an hour for travelling and waiting. The same telephone fees will be available and both types of solicitors will receive travelling expenses to and from their client.
§ Both duty and own solicitors will also be involved in advising and representing suspects in connection with hearings for warrants of further detention. Your Lordships will remember the discussions we had over them on the earlier Bill. These hearings before a magistrates' court are necessary when the police wish to detain a suspect for more than 36 hours without charging him. Assistance by way of representation will be available in these cases, but since these cases will always be urgent the Government accept that legal representation will invariably be necessary and the usual requirement for prior approval by the society will therefore be waived, as will the means and contribution liabilities. The usual remuneration for this work will be paid, except that duty solicitors who are doing it out of usual office hours will have their rates enhanced by one-third.
§ Viewing these arrangements as a whole, they form a systematic and workable attempt to discharge the Government's undertaking to provide an effective right to legal advice, balanced against our need to take from the taxpayer only what is necessary. I think it will be effective and believe it will prove efficient. I must acknowledge that all this is a new area—we have not explored it before—and with so substantial an undertaking we must always be ready to adjust what we have provided if, in the light of experience, we see better ways of doing things. The Law Society knows that I am willing to review how the system works. I repeat that to your Lordships' House. The Government have demonstrated that in part already by committing resources to research into offence numbers, which is already under way. The society and the department will be closely monitoring how it all works in practice.
§ As I have said, this is the most significant development in legal services for many years. I think I can claim, and I am advised that I can claim, that it is unparalleled anywhere else in the world. If these regulations are not passed, from 1st January suspects and solicitors would be limited to the £50 available under the present green form scheme and the society's present scheme would go by the board. All these regulations stand or fall together. If one goes, they all go. The present scheme is the best that I can now offer, and I must I am afraid apologise to the House for the rather complicated and perhaps detailed speech that I felt compelled to make. I beg to move the Motion in my name.356
§ Moved, That the regulations laid before the House on 2nd December be approved.—(The Lord Chancellor.)
§ Lord Elwyn-Jones
My Lords, the House will be most grateful to the noble and learned Lord the Lord Chancellor for guiding us through this forest of provisions in the important field of legal aid and advice. I do not challenge the first of the proposed regulations before the House, but I do pray against the No. 2 Regulations.
During the course of the proceedings on the Police and Criminal Evidence Bill the Government spokesmen agreed that suspects held in police stations should be given a statutory right to legal advice in private from a solicitor, either their own solicitor or one of the duty solicitors. It was, I readily agree, an important concession, and I venture to think that it produced on the part of the House a greater willingness to accept some of the additional police powers for which the Bill provided. To ensure that suspects without their own solicitor may nevertheless obtain help from a solicitor, the Government agreed, as the noble and learned Lord has said, to provide in the Act and codes of practice for a 24-hour duty solicitor scheme, which was to be established by the Law Society through its regional and local committees.
When the Home Secretary announced this proposal in another place on 7th November 1983 he said that to make the new statutory right effective,arrangements are needed for solicitors to be available at all times when legal advice may be sought".—[Official Report (Commons) 7/11/83; col. 33.]He added that the Government would put public money,where our mouth is".That is a bold statement, and a rare one, for any Minister to make, but he made it on that occasion. Now is the time for calling to account whether that undertaking is going to be carried out.
In the light of that promise, in November 1983 the Law Society proceeded to make detailed plans for the 24-hour scheme, but unhappily there was a good deal of delay—it may not have been entirely the fault of the Government—in the Government announcing their own proposals. It was not until July of this year that the noble and learned Lord was able to confirm that money would be available for the scheme. The Government's decisions were announced and are contained in the orders which we are considering today.
One decision, made apparently without prior consultation with the Law Society, was that legal advice in the police station would be organised on a two-tier basis, as the noble and learned Lord has indicated. That, however, was presented as something of a fait accompli—a "take it or leave it" proposal—just a day or two before the Government's statement was made in July. It became evident that the noble and learned Lord the Lord Chancellor was being required to develop a duty solicitor scheme within a strict superimposed financial limit and control.
As the noble and learned Lord has said, the two-tier scheme provides that only a suspect detained for an arrestable offence as defined in Section 24 of the 357 Act—I share the distaste of the noble and learned Lord for that designation—will be entitled to legal aid to the full extent of a solicitor's advice. Everyone else will fall into the lower tier: and yet among offences which are included among those not arrestable under Section 24 are serious offences such as assaults on constables, the possession of offensive weapons and serious public order offences. In his observations the noble and learned Lord indicated a general willingness to keep an open mind on some of these matters. He may well consider at any rate whether some of those offences ought to be raised and included in the upper tier for the fuller consideration that they would require from a solicitor giving advice. If that were done, I am bound to say that it would diminish some of the anxiety that has been expressed about these proposals.
The noble and learned Lord has spoken of what is to happen in respect of volunteers. There is a good deal of anxiety that they and their problems are again put in the lower tier category in respect of the amount of advice they can receive from a solicitor. Volunteers are those persons who go voluntarily to the police stations to help with inquiries. For the purposes of getting a solicitor's advice their cases fall into the lower category. Yet it is surely in the public interest that the public should be encouraged to assist the police with their inquiries rather than be arrested before they can be questioned. Perhaps consideration could also be given by the noble and learned Lord to transfer this category also into the upper tier.
As the noble and learned Lord has explained, the cost to legal aid which a solicitor would be allowed to incur for a person or case included in the lower tier would be £50 as a maximum, with no extension permitted. This will be paid at the usual rate for this type of legal aid work of £27 an hour. Thus the maximum sum permissible and to be paid would provide two hours' work by a solicitor.
The view of the Law Society is that in many cases the lower tier absolute limit of £50 will not enable a solicitor to give the help that he or she professionally considers necessary. Included in the £50 maximum is the solicitor's travelling time. Experiments conducted by the Law Society have shown that travelling time will take on average 30 minutes to 40 minutes in each direction, to and from the police station. It is felt that the provision is inadequate for a considerable number of the difficult cases that suddenly have to be dealt with in the police station by the duty solicitor or the client's solicitor. It may well be that my noble friend, when speaking at the end of the debate, will ask some questions about the facilities that will be available for consultations in the police station when the solicitor arrives there.
Apart from the area of volunteers, there is another area where a good deal of concern is felt. It is the inclusion in the lower tier category of persons and classes of people who are, to use the technical phrase, "at risk". I have received approaches from the Mental Health Foundation and the National Association for Mental Health about the fact that the important safeguards for mentally ill and mentally handicapped people that are commendably contained within the Act and its code of practice will be somewhat 358 diminished, if not undermined, by the limited provisions of the 24-hour scheme in respect of the legal aid proposals.
I submit that it would be far more in keeping with the legislation involving suspects at police stations who are vulnerable—particularly the mentally ill and the mentally handicapped, and juveniles—that they and their cases, and cases affecting them, should be included in the top tier. The House will not forget the Confait case, which was frequently quoted during our debates. That was the case in which two juveniles and a mentally handicapped 18 year-old volunteered to go to a police station and were subsequently convicted of murder on the basis of a false confession. There has been a worrying number of similar cases involving the mentally handicapped and the mentally ill. It is to the Government's credit that the vulnerability of those groups, and indeed that of juveniles, has been recognised in the Act and its code, particularly in its requirement that an appropriate adult be present during police questioning.
Important as those safeguards are, of greater importance perhaps is that legal advice should be available to persons in those classes during the time when they are held by the police as suspects in a police station. I hope therefore that in approaching these regulations in the generous spirit that the noble and learned Lord has indicated, his mind will not be closed again to widening the area to be covered by the top tier of legal advice.
The noble and learned Lord has been good enough to indicate today his readiness to review the situation arising from this noble experiment—and I am happy to describe it in that way—so that, if it is discovered that there are gaps (and I ventured to indicate some that are causing concern), then perhaps the noble and learned Lord will choose an early opportunity to inform the House and Parliament of the Government's intentions. I cannot tie the noble and learned Lord down to a time limit; I should be neither so impertinent nor so unwise as to suggest one. However, clearly we are dealing with an area where there ought to be changes in order to give the scheme its full effectiveness. Subject to that and to the observations I have made, we give the scheme itself our broad welcome. But formally at this stage, I beg to move—
§ The Lord Chancellor
My Lords, the noble and learned Lord cannot do so until we have passed the first Motion.
§ Lord Elwyn-Jones
My Lords, my master, the Opposition Chief Whip, was about to put me right but he did not rise to his feet in time. In those circumstances, as I said, I give support for what is proposed, subject to the important deficiencies and omissions that we pray the Government will remedy sooner rather than later.
§ Lord Denning
My Lords, I hope that your Lordships will welcome the statement made by the noble and learned Lord the Lord Chancellor, because it seems to me to be a most important step in our legal aid procedure. In my time, legal aid has been one of the greatest revolutions in our law. When I started in 359 the legal profession, a man who was arrested received no legal assistance and had no right to see a solicitor. I have often been there when such a man was arraigned before the judge of assize. He would ask for legal aid, and the judge would respond by asking him, "Do you have £l. 3s. 6d?" The accused might reply that a friend had the money, and then he was told that he could choose from any of the gentlemen to be seen at the Bar. The accused could only see the back of our heads and our wigs. He would pick out one of us; I have often been picked out.
I, as a member of the Bar, would for £1 3s. 6d. defend that man, perhaps in a case lasting days, and yet receive no further reward. That was the public service of the profession; to help accused persons in that way. That is what happened when I started.
In the civil courts, I have time after time conducted a case through to trial for no fee whatsoever, instructed by a solicitor who received only his out-of-pocket expenses and no more. That was the position before legal aid was introduced, first in 1947 and thereafter. What a transformation it has made! Every citizen, especially in the criminal courts, can employ a solicitor and counsel with no responsibility himself for paying anything, but looking to the taxpayer to pay his lawyer's expenses. That is all very satisfactory; a great revolution at the expense of the Government and the country.
Today we have a most important extension. By the Act that we passed last year, every man who is arrested at any time of day or night is entitled to seek legal advice. He is given the name of a solicitor if he wants one. He can have that solicitor come at once to the police station to give legal advice. All the payment is made by the taxpayer. That is all very satisfactory but, if I may say so, there are limits to which even governments or taxpayers can go in financing legal aid. Your Lordships may have received, as I have, a letter from The Legal Action Group on behalf of law societies, and so on, and this seems to be how it starts. Can your Lordships understand this? It is headed, and underlined:Help prevent cash-limiting of legal aid".What does it mean? It is asking your Lordships to say, "Do not let any cash limits be put on legal aid; let it be extended right through, irrespective of limits". At the end, the letter states:The Government's curtailment of the service … runs counter to current and historical thinking. It creates a worrying precedent at a time of constant searches for cuts.It is not contrary to any historical or current thinking. It is a great advance in thought that every man who is arrested should be entitled to have a solicitor's advice without paying for it himself but, with the Government, the taxpayer, helping, pay as much as he can afford. I would rely on the noble and learned Lord the Lord Chancellor and his advisers to see what can be afforded and what are the best terms.
I should like to thank the noble and learned Lord the Lord Chancellor for his very clear exposition of this most important development and I ask your Lordships to approve it wholeheartedly.
§ Lord Hutchinson of Lullington
My Lords, this debate is of great importance although ostensibly it 360 only embraces one part of one regulation. I would say to the noble and learned Lord, Lord Denning, that even I am old enough to have started my career on dock briefs. They were highly unsatisfactory but the greatest possible fun because it was the only occasion when a member of the Bar could take instructions direct from the client.
This matter goes to the very heart of the public sector provision of legal services. It follows on directly our recent debate on the codes issued under the Police and Criminal Evidence Act. Those codes received generally a warm welcome, particularly from these Benches, but the warmth was dependent upon the volunteer and the suspect in the police station having, in practice, access to the legal advice and assistance to which they are entitled under the codes. Unless that access is made a reality the greater part of the provision of those codes is stillborn, and indeed the good faith of the Government is seriously in question. Therefore, the 24-hour duty solicitor scheme is, I suggest, crucial to the operation of the codes. Unless public funding is sensible and reasonable, so that solicitors of high calibre are able to take part in the scheme, as indeed they always have done with a sense of public duty where legal aid cases are concerned, the scheme will simply fail.
It is the division of legal assistance into two categories with which we are really concerned here today, and with the question of the second tier, because I, too, on behalf of those of us on these Benches, do not challenge the other two regulations. Here legal aid, legal assistance, is for the first time subject to an arbitrary ceiling with strict cash limits as opposed to the provision of a standard fee with a right to retrospective enhancement upon application to an independent assessment body to ensure that in the infinite variety of different circumstances the public are, in fact, properly served.
I really wonder, with the greatest of respect, whether the noble and learned Lord the Lord Chancellor and his staff have an informed appreciation of what a solicitor who is summoned to a police station in the year 1985 might have to do. I have here 38 pages of guidelines issued to solicitors for advising suspects in the police station. I take the situation of the volunteer—the person who is asked to go to the police station to be questioned about the finding of an offender in relation to a crime which might be of the most serious possible kind. The code sets out the rights of that person as a simple volunteer in the police station. He will have certain rights simply as a volunteer. He will have further rights if the police decide to caution him, but not to arrest him. He will have certain further rights if the police then decide not only to caution him but to arrest him in the police station. He must be cautioned at different stages. He may be questioned at intervals over an open-ended period and he is entitled to various periods of rest and refreshment, and so on. He will need advice in all those circumstances.
He will need advice, too, on whether he should make a statement; whether he should make a statement as a witness or as a suspect; whether he should turn up, or agree to turn up, at an identification 361 parade; whether he should give a sample if requested; whether he should be medically examined if asked; whether he should give his fingerprints; whether he should agree to be photographed, and whether he should agree to have his home or his place of work searched. He may want to discuss the question of bail on the possibility of being arrested. He may wish to obtain sureties. He may wish to notify friends or business associates.
He may be shown exhibits by the police. He may be read statements by alleged suspects or other witnesses. What is he to say when these suggestions or allegations are read to him? He may need to contact an essential alibi witness. He may wish to get hold of essential documents which will immediately 'establish his innocence. All these things will be done at a tempo which is dictated quite properly by the police who will quite likely be under extreme pressure to arrest suspects, to take statements, recover property, and so on.
This volunteer may be questioned in relation to murder, rape or robbery and, particularly so far as time is concerned, in regard to fraud and cases of dishonesty. Advice at this early stage, as the noble and learned Lord, Lord Elwyn-Jones, pointed out, is absolutely crucial; not only to the accused but perhaps also to the police in order that they may eliminate this person from their inquiries and in order to assist in the general administration of justice. It may be necessary to advise the person, if charged and in the circumstances he is clearly guilty, to make a statement and to assist the police or, alternatively, advise him not to make any statement. In those circumstances, no solicitor can operate with a stopwatch in one hand and a totally artificial time limit in front of him.
What an incentive it is in such a situation, when the moment comes, to get his client arrested rather than have him remain as a volunteer!—because if he can be arrested, then the solicitor can remain with him until the hell rings for him to cease to give advice. What an incentive it is to get him charged with an arrestable offence rather than an ordinary offence, for the same reason! What an incentive it is to the police to stretch things out so that the time will come when the bell rings and the solicitor has to leave, and then for them to question the volunteer, to charge him or to arrest him!
What will happen when that occurs? Will the volunteer be able to say, "Oh, I must have my solicitor back again", because time will start to run again into the next area of an arrestable offence? The reality is that by that time it will be two o'clock in the morning and the solicitor will be in his motorcar driving home. All this is practical, sensible material, which I suggest really makes this arrangement of the second tier quite impossible with a volunteer in a police station.
One category of persons at risk is that of the volunteer. The next category of persons at risk covers juveniles, those with mental illness or handicap—an impediment in sight, speech or hearing—or those who have imperfect English. Such people surely cannot be limited to a short period of two hours for obtaining advice on offences of any kind. Surely those people, in accordance with Code C, which we were dealing with the other day, must not be interviewed by the police in the absence of an appropriate adult. If that appropriate 362 adult is a solicitor, what happens when the bell rings and the time is up, I ask the noble and learned Lord the Lord Chancellor?
As regards the normal suspect, as has already been pointed out such offences—and I would add to them—which involve assaults on police constables, indecency with a child under 14, incitement to racial hatred, indecent exposure, kerb-crawling and soliciting by a man for immoral purposes, obscene publications, the possesion of offensive weapons, and such like are all matters of crucial importance, where to limit advice to a very short period of time would in my submission make the whole basis of the Police and Criminal Evidence Act and the codes which go with them really not operable. In all those circumstances, I suggest that at the very least the number of offences to go into the first tier should be increased; that volunteers should be included in the first tier; and that other persons at risk should also be contained in the first tier. This would at least be an advance on the present situation and would enable the legal aid scheme to work properly.
I should like to finish what I have to say by simply reading out six or seven lines from the advice to solicitors issued by the Law Society. In my submission, it says it all as regards the importance of this scheme and the vital importance of early advice: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 confession 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 and assisting the recovery of stolen property and clearing up outstanding enquiries. The presence of a solicitor in a police station means that justice is better secured by the individual. It also leads to savings in police court and judicial time so that quicker and more economical justice is secured to the community at large.In my submission, in those words the whole essence of the proper remuneration of solicitors under this scheme is entirely justified, and if a little more money can be spent on that advice, as is said here, then enormous sums will be saved in the end.
§ Baroness Phillips
My Lords, before the noble Lord sits down I should like to ask him whether he would agree that other professional people, such as doctors and certainly a large number of other professionals, are frequently called out in the middle of the night to carry out their duties. There is no question of limiting the time that they spend according to the amount of money they receive. The noble Lord presents his own profession as being extraordinarily mercenary. Surely, if they really have their client's interests at heart the fact that they only receive a certain amount of money will not stop them carrying on for longer than two hours.
§ Lord Hutchinson of Lullington
My Lords, I entirely agree with the noble Baroness that there is a parallel between the lawyer and the doctor in those circumstances. I think she will find that a doctor who is called out and who has to spend 8, 9, 10 or 12 hours with a patient will be remunerated accordingly. No doubt solicitors who are called out and who have to stay for 12 hours with their client will be prepared to do so for nothing on many occasions. But if this 363 scheme is to work properly and is to be efficient, then surely there should not be a distinction between being called out on an arrestable offence and being called out on any other offence.
§ Lord Prys-Davies
My Lords, I should declare an interest. I am a practising solicitor, though I am without experience in criminal law. Nevertheless, my firm has a criminal law practice. I can tell the House that there is very serious concern about the costs of the proposal for the category of non-arrestable offences.
The noble and learned Lord the Lord Chancellor has explained how the Act for the first time gives a suspect a statutory right to communicate privately with his solicitor. That is a long overdue reform. But most people do not have a solicitor in the way that everyone has a doctor, and even people who do have a solicitor sometimes find it very difficult to contact him outside office hours. That is the reason why an effective 24-hour duty solicitor scheme is vital. Without such a scheme, many suspects will be left without protection in the face of the enhanced police powers given by the Police and Criminal Evidence Act.
We have heard from the noble and learned Lord the Lord Chancellor that it is estimated that there are about 300,000 suspects who will require legal advice at police stations, and of those one-third will ask the duty solicitor. It is also envisaged that five out of six calls will be made outside normal office hours and at weekends. That is not merely an estimate. Indeed, it has been confirmed by a number of pilot schemes which were conducted up and down the country, including a pilot scheme in the Miskin petty sessional division in Mid-Glamorgan. Of course, we know very little about the facilities available at a police station for the solicitor to offer his services and for the consultation to proceed. More often than not, the facilities are inadequate and there is a lack of privacy. This may be something which the Lord Chancellor's department will consider in due course, and they may suggest how to improve the facilities which are available.
It would be a matter of the gravest concern if solicitors were prevented from offering an effective duty solicitor service, yet I am advised by the administrator of the duty solicitors committee in my petty sessional area that that could well be the effect of the remuneration proposals. We have been told how the scheme involves a two-tier structure which differentiates between arrestable and non-arrestable offences. The proposals for arrestable offences are generally thought to be satisfactory. However, when attending a suspect following an arrest for a non-arrestable offence, or one who is at the police station helping with inquiries, regardless of the seriousness of the offence, the duty solicitor will be limited to £50. I am advised that that is likely to be inadequate in many cases.
The majority of suspects who require access to the duty solicitor will be in the non-arrestable category. As the non-arrestable offences have been relegated to the second division in the remuneration proposals, are we 364 to conclude that the department believes that they are less important? If that is so, we think that it is wrong. My noble and learned friend Lord Elwyn-Jones and the noble Lord, Lord Hutchinson, have referred us to the list of non-arrestable offences. The cases which have been referred to can be as difficult, as challenging and as worrying to the individual and to the solicitor as arrestable cases, yet they are relegated to the second division.
The petty sessional division in which I live is in the county of Mid-Glamorgan, a county with immense social problems, although thankfully they have not yet reached the magnitude of the problems in the inner cities. It has a population of 172,000 and four busy magistrates' courts. During the past 12 months about 3,000 people were arrested or interviewed at police stations. We have been told that it is anticipated that about one-third of those people will call for the duty solicitor. That means that in our area there will be about 20 calls a week, of which at least 15 will be outside normal office hours or at weekends.
§ The Lord Chancellor
My Lords, I may have misunderstood the noble Lord or I may have misunderstood myself, but if I have understood myself correctly and understood him correctly, his mathematics are at fault. The figure that I gave was not one-third of those arrested but one-third of those who asked for legal advice out of those who are arrested will go for the duty solicitor.
§ Lord Prys-Davies
My Lords, I may need to be corrected, but I have based my figures on the information that I have received from the man who has been administering the pilot scheme for the past few months, and he may be nearer to reality than the Lord Chancellor's department.
Some of the solicitors who are working the duty scheme in our petty sessional division live outside the division, and they would be faced with a return journey of anything between 25 and 45 miles, and could reckon on spending an hour, an hour and a half or two hours travelling. I am not certain how in those circumstances one arrives at the average travelling costs to which the department refers.
I am advised, and I can only bring this message to your Lordships' House, that solicitors are being deterred from volunteering their services by the inadequate remuneration proposed. If that is so, the difficulty does not end there. If the administrator is left with a dwindling band of solicitors, the burden which the remainder will have to shoulder will be commensurately greater, so they too may be deterred from participating in the scheme. If that were to happen, the scheme would be seriously weakened.
The noble and learned Lord the Lord Chancellor informed the House that the Government are constrained by lack of funds, but the size of the fund and the priorities of the demand on it are determined by the Government. Nevertheless, we are grateful to the noble and learned Lord for his assurances that the department will monitor closely the implementation of the scheme, and if experience shows that it is necessary to bring forward proposals to reform it, he will do so.
§ Lord Foot
My Lords, I wonder whether I may make two observations in the debate. I fully agree with what the noble and learned Lord the Lord Chancellor said when he explained the matter to us. The reform incorporated in the new arrangements for legal aid is a noble stand and one which will be of great benefit not only to those who are unfortunate enough to find themselves in a police station but to the police themselves. If a solicitor stands by a man's side when he is being interrogated, with the opportunity to advise him, that will eliminate almost certainly what today happens all too often. When a case comes to court the defendant denies an alleged confession which he is supposed to have made, and the time of the court is taken up for hours and sometimes for days on end inquiring as to whether the confession was true or false. In the great majority of cases all that will be eliminated if there is a duty, or any other, solicitor present at the man's side. Therefore I very much welcome what has been done, and I pay tribute to the way in which the noble and learned Lord has steered the matter through and presented the regulations to us today.
I do not need to say more about the matters that have been spoken of from the Benches on this side of the House. I agree with every word that was said by the noble Lord, Lord Hutchinson. I do not know whether I am out of order in mentioning the suggestion that one of the regulations should be annulled. However, if I may say so, and if it is in order to say so, I do not think that that is a satisfactory way to deal with the matter. The noble and learned Lord has embarked on the two-tier system. I think that perhaps the most we can hope for is that, as the system operates and as it is monitored, the opportunity will be taken to find out whether there are certain categories of case which ought in the light of experience to be taken out of the second tier and put into the first. I should imagine that that would be a fairly simple operation to see how the scheme works. I take satisfaction from the assurance that he has given us that he will look closely to see how that works out in practice. That may be the best way to proceed.
§ Lord Elwyn-Jones
My Lords, may I assure the noble Lord that I have no intention whatever of seeking to annul the proposed regulations. I thought that I had made that clear, but it matters not.
§ Baroness Fisher of Rednal
My Lords, I speak as a non-legal person. I am, however, a magistrate in the City of Birmingham where there are over 400 magistrates. There are 13 individual courts operating daily. My contact with solicitors is through the courts system. I am fully aware that for the last five years in Birmingham there has been an out-of-hours duty solicitor scheme that has been voluntarily operated by the Birmingham Law Society. Anyone faced with a legal emergency out of office hours has been able to contact the duty solicitor. The phone number of the duty solicitor is widely publicised. It is not a secret number. It is a well-known number that is contained in most telephone directories whether private or those issued by British Telecom. The person answering the telephone will automatically give the phone number of the duty solicitor who is operating in the Birmingham area.
366 Many of the calls are not made by the person who has been arrested. Very often, if it is her son who has been arrested, it will be the mother. Or it will be the wife anxious about her husband who has been hauled off to the police station. The relatives are able to make this direct contact with the duty solictor. Obviously, then, the duty solicitor can immediately go to the police station and be of the utmost assistance.
There is, however, a problem that has been brought to my attention. I apologise to the noble and learned Lord the Lord Chancellor for the fact that I did not fully understand what he said. Much of the language is rather technical. I understand, however, that there will be regional numbers on what he called Air Call PLC. If that is wrong, I stand to be corrected. I understand that this number will operate on a regional basis, although, there again, I may be mistaken. I gather that the West Midlands, which is based on Birmingham, is to have a Coventry number. This seems a waste of time when one considers that Birmingham has a population of nearly one and a quarter million people. Be that as it may, there is perhaps some legal reason for it. It is, however, I would have thought, contrary to what we in Birmingham would have wished.
I am led to understand that the number is only available for the police to call out the duty solicitor. If that is the case, my concern is to discover what help this offers to the mother who has seen her son arrested or the wife who has seen her husband arrested. I am concerned that distressed relatives and even friends might not be able to be as helpful as they would like to be towards persons whom they love and whom they wish to assist. I may, of course, be entirely wrong. I would be glad to be corrected by the noble and learned Lord if that is so.
§ 4.45 p.m.
§ The Lord Chancellor
My Lords, may I first thank noble Lords who have participated in the debate for the compartively friendly welcome that these new proposals have received. I should like particularly to thank the noble and learned Lord Denning for seeing that this is indeed a great advance—an advance, as I have said, unparalleled in the rest of the world so far as I know. It is also a challenge to the legal profession. Obviously I must accept, and I do accept, the obligation of the Government to give fair and reasonable remuneration to those who participate in the scheme. I must, however, say that I believe that there is a certain professional obligation on the part of lawyers to participate in it. It is, of course, a scheme, for solicitors. I have not heard a great demand from the Bar so far. But perhaps that has yet to come.
I should like to put one or two general considerations which I think your Lordships should have at the back of your minds. We have been operating hitherto a scheme, in which there is a right, but not a statutory right, that costs the country between £1 million and £2 million. We were told by the Philips Commission that we should widen it. We were then costed at £6 million. We have now enlarged it in the light of undertakings, given first in another place by my right honourable friend who was then Home Secretary and later in this House by myself, I think on Second Reading—at any rate, in this House—that we would operate a scheme of the kind that is now envisaged. It will cost, on present estimates 367 and without any enlargement, at least £20 million. That is my best estimate.
We have therefore made the biggest single advance in this field for many years, one that is unparalleled in the rest of the world. It gives an opportunity to the learned profession, of which I am not a member but with which I have been associated as a member of the complementary Bar branch of the profession all my professional life, a real challenge to be seen to add to the enormous services that it provides, for the community in the way now proposed.
But this must be seen, as I said in opening, in the light of the actual money which we are spending on legal services, and the increase that has occurred even during my present term of office. I ventured to point out on a recent occasion that I am in charge of the fastest growing social service in the whole field of social services. When I came to office in 1979–80, the whole expenditure from central funds on legal aid administration, civil advice and assistance, advice by way of representation and criminal legal aid added together came to £133 million—then for some reason there is added 12 pence. It may be that I have got my arithmetic wrong. I think that I was perhaps reading the odd pounds as if they were pence. If so, I apologise. The latest estimate that I have here for 1984–85, without this scheme, amounted to £346 million. That shows the scale of the operation even without this scheme.
One must be realistic in pressing the Lord Chancellor to make a large increase on what is proposed before we have any experience of the working of the scheme. I am grateful to the noble Lord, Lord Prys-Davies, and also to the noble Lord, Lord Hutchinson, who had evidently been instructed by solicitors on this occasion, having argued a good brief very efficiently in order to show some of the difficulties. I am not absolutely convinced, however, that we can go any further until we have some experience.
I take the point raised by the noble Baroness, Lady Fisher, that these area telephone numbers are designed to show who is where at what time within a fairly large area. The reason is that those manning the telephone will know exactly who is out on duty within an area and who is available for duty. I am advised that this is the most efficient way that we can work it out. That is something which clearly must be determined in the light of experience.
May I say how grateful I was to the noble Lord, Lord Foot, for the very generous and understanding way in which he put forward his own remarks. They were particularly valued as they came from a member of his profession. But at the end of the day I think we have to move where we know where we are.
Let me give a small example from my own experience—not as a barrister. The noble Baroness Lady Fisher, will realise that I was in another capacity on this occasion. Some years ago I was rung up in the middle of the night from a police station. They asked for my identity, which I gave. They said, "Do you know So-and-so?" He was in fact one of my children. They said, "We've got him here". I said, "What has he been doing?" They answered, "Obstructing the police". I asked, "What's the maximum?" They said, 368 "Twenty pounds". I asked, "Are you going to let him out?" and they said, "Yes, we're going to let him out on bail." I said, "I'm very pleased to hear it". If he had asked for legal advice, and had I been a solicitor instead of a parent, let us see what my position would have been. I would have had a standby fee of £60 to begin with; I would probably have had £1 for the telephone call with the police; if he wanted legal advice, another £10 for telephoning him; and this would have been, of course, a lower-tier case. Obviously the boundaries between the lower and the upper tier are flexible and the line has to be arbitrary.
Unless one is going to adopt a scheme which is incapable of proper financial control one has to draw arbitrary lines to deal with what is fundamentally an extremely flexible situation. Rightly or wrongly the Government have said that there is no offence, however humble—not even obstructing the police for the maximum of £20; and in my earlier example the child had been attempting to direct traffic in a certain place on Boat Race night clad, I believe, in a pair of underpants, for which he was subsequently fined the maximum—to which this statutory right does not apply, if the suspect (or whatever one may call him) is housed in the police station. I think that we have to see how we progress before going to the lengths of looking at every possible case.
I take on board what has been said. I do not want to contradict it or to minimise it or to suggest that there is self-interest. Every profession is entitled to see that it is properly remunerated and to use its own knowledge of the background of its own expertise to ensure that we do not exploit it. However, I think that the next step must be to go forward.
For this scheme I have £20 million on top of a system which is at the moment costing the country only £1 million. I am doing it with the background of the figures which I have given. During the great part of the debate I saw the noble Lord, Lord Jacques, sitting on the Benches. He has not spoken but he wants a lot of money for the Health Service, and in the present financial situation I do not think that I could have done a great deal better than I have. Of course, there will be people who will say, "Shoot the Lord Chancellor!" They may be right; but then they will have to get somebody else to find a better scheme for them and I doubt that they will in this instance. Having said that, and thanked all the noble Lords who have spoken—the noble and learned Lord and the noble Lord, Lord Hutchinson, were most generous, and I have thanked the noble Baroness, Lady Fisher, and the noble Lord, Lord Foot—I repeat that we are doing the best we can. I hope that the conductor will not inadvertently be struck by lightning before the scheme comes into effect.
§ On Question, Motion agreed to.