Duty Solicitor Scheme

HL Deb 23 July 1985 vol 466 cc1180-8

8.30 p.m.

Lord Elwyn-Jones rose to ask Her Majesty's Government whether they are aware of the delays in arranging matters essential to the initiation of the 24-hour duty solicitor scheme and what action they will take, in view of its proposed commencement throughout England and Wales on 1st January 1986.

The noble and learned Lord said: My Lords, the Police and Criminal Evidence Act, which Parliament passed last year, strengthened and extended police powers in important respects. In cases where a suspect has been arrested and detained in connection with a serious arrestable offence, for instance, access to a solicitor for advice and assistance may be delayed for up to 36 hours from the time of that person's arrival in a designated police station.

After anxious deliberation before accepting this, Parliament included in the Act's provisions a crucial safeguard for the citizen, which was designed to balance the increase in police powers. That provision is his right of access to legal advice from a solicitor when a person in a police station in custody for questioning has to consult a solicitor privately at any time. Delay in compliance with a request to see a solicitor is only permitted, first, in the case of a person who is in police detention for a serious arrestable offence; and, secondly, if an officer of at least the rank of superintendent authorises it. But, in addition, Section 59 of the Act provided for legal aid to be available to enable persons held at police stations to obtain legal aid and to get advice and assistance.

The Government accepted that solicitors would have to be given a guarantee of payment from public funds for this right to be made a reality and that the service to the man or woman in police custody would have to be free of charge. This, the Government conceded during the debates, was a major commitment both in policy and in financial terms, and it must indeed have influenced both Houses as the Bill went through Parliament.

The Law Society, on the strength of these undertakings, began planning for a national duty solicitor scheme to cover England and Wales, so that solicitors would be on call 24 hours a day. The Home Secretary announced that the 24-hour duty scheme would be implemented on 1st January 1986, when the Act itself would be implemented.

The amount of work involved in the operation of the proposed scheme will be considerable. Research and experimental schemes have produced estimates that from 316,000 to 369,000 persons may require legal advice at the 3,000 or so police stations in different parts of the country at varying hours of the day and night and at weekends.

Initially the cost of the proposed public service was massively underestimated. I understand that the Lord Chancellor's Department had forecast an annual bill of around £6 million; but in March of this year a pilot study was conducted, which predicted that the likely cost would be nearer £20 million, and some people indeed think that sum is too little if the work is to be done properly.

As time went on and decisions on the main issues kept being delayed by the Government departments concerned, it seemed unlikely that the Law Society would be able to implement a scheme across England and Wales by the 1st January 1986, which date the Home Secretary had announced for the implementation of the Act. An Early Day Motion in the other place drew attention to the risk that was involved.

I understand that the President of the Law Society wrote to the Home Secretary only last week to point out that the Law Society could make no further progress in preparing the scheme until the necessary Government decisions were made and announced. The president added that, since the Home Secretary had stated in another place on 7th November 1983 that effective arrangements must be made for a solicitor to be available at all times when legal advice might be sought, the Government should delay the implementation of the detention provisions of the Act beyond 1st January 1986, until an effective 24-hour duty solicitor scheme for police stations was in existence.

Other urgent representations were made to the Government both in another place and here. I put down my Unstarred Question on 17th July. There was also considerable press activity on this issue. Walter Merricks, who was a member of the Royal Commission on Criminal Procedure, wrote in The Times on that same day: Don't let this right be arrested"— that is to say, the right to legal aid and advice for the person held in police custody.

Suddenly there appeared in the press at the end of last week a report—which has more of the quality of a Government leak than of an inspired guess, if I may say so—that the Home Secretary had arranged with the Chief Secretary to the Treasury that some £20 million would be available for the 24-hour duty solicitor scheme. We wait anxiously but hopefully to learn from the noble and learned Lord the Lord Chancellor tonight whether or not that report is true and whether he feels able officially to confirm that at least the money side fo the 24-hour duty solicitor scheme is going to be provided for on the lines that were referred to in the press reports of a few days ago.

However, apart from the financial aspects, there are other causes for concern to those who will be responsible for administering the scheme and to those who may hope to benefit from it. First, what provisions and arrangements are to be made for access by a friend or relative of the person in custody to the duty solicitor? Unless these are provided, there may well be occasions when the suspect detainee who needs legal advice will not be able to get it, particularly when he or she is voluntarily helping the police with their inquiries.

Secondly, what arrangements are to be set up for a country-wide telephone service for the operation of the scheme? The management consultants appointed by the Government to assist the Law Society advise that it is essential to have such a service, whether centralised or regionalised, for receiving calls from police stations and for the efficient and speedy deployment of duty solicitors. Only with a central or regional telephone service on those lines will it be possible to avoid having literally hundreds of solicitors standing by on duty, either at offices or in their homes, at considerable cost to the Legal Aid Fund and inevitable inefficiency in the use of the profession. The need for a telephone service is emphasised by experience in the Metropolitan Police Area over the past few weeks where the police have implemented parts of the Act for training purposes. A separate request has been made to the Government for funds to set up a central telephone service covering London for the rest of the year. We should like to know what response to that request may be expected.

Thirdly, what is proposed as to the eligibility of suspects held in detention for questioning—because that is what we are talking about—to receive legal advice and assistance? The Government have already agreed in principle that detainees will qualify to see the duty solicitor or their own solicitor without assessment of their means or the payment of a contribution. The Law Society has asked that the legal aid and advice regulations should be amended as a matter of urgency to cover the Metropolitan Police experiment and any others which occur before 1st January 1986 and indeed thereafter. Fourthly, are the proposed remuneration arrangements—if solicitors are to be expected to provide a 24-hour duty service overnight and at weekends—sufficiently generous to ensure that solicitors of experience and competence will take part?

These are some of the provisions that, in our submission, are necessary with regard to this exciting and vitally important body of safeguards for persons held in detention in police stations, whose alleged guilt has not yet been proved, many of whom will be acquitted at their trial either by a judge on a submission of no case or on acquittal by a jury. The right of the suspect held in police custody for questioning to get legal advice and representation if it is applied for will be one of the marks of a just society and one which must be ensured if confidence in our penal system is to be retained.

8.43 p.m.

Lord Hutchinson of Lullington

My Lords, it must be a matter of some regret that there is such a sparse attendance here tonight to discuss this very important Question which has been raised by my noble and learned friend Lord Elwyn-Jones.

For many of us in this House the central issue in the debates on the Police and Criminal Evidence Act was the right of a suspect to legal advice when in custody. The reason for this is very simple: the overwhelming weight of evidence that the majority of this continuing series of miscarriages of justice in recent years were caused by the making, or the alleged making, of false confessions by accused persons when in custody. The Government resisted all attempts quite simply to guarantee that no suspect should ever be held incommunicado in a police station and stuck to the exceptions for getting legal advice which are set out now in Section 58 of the Act, but promised the creation of an effective duty solicitor scheme to ameliorate the position in all other cases. So this matter goes, I would suggest, to the very heart of this Act and to the bona fides of the Government.

I wish to make one central point this evening; that is, that the provision of legal advice to suspects who have no solicitor of their own is inextricably bound up with the provision of advice to those who do so have. I have found among solicitors, certainly in London, that it is very generally felt—and I agree with their feeling—that it is no good setting up a scheme which remunerates solicitors for work in out-of-office hours on a duty solicitor basis which is not related to the rates of remuneration for solicitors who see the clients on a legal aid basis during the same hours.

At present there are two basic situations. One is the attendance at a police station, at the office, in court or at a court, to see the client and give advice which involves the use of the green form with a maximum remuneration of £50 in some exceptional circumstances, with an additional £15 for unsocial hours' attendance. The other situation is attendance at a magistrates' court in office hours on the duty solicitor scheme during working hours, which at the moment involves a roster and a flat-rate payment of £25 per hour which is a system which it seems works reasonably well and is very free from form-filling.

I must point out to the noble and learned Lord the Lord Chancellor yet again—and I am sure that he is tired of my pointing this out—that the degree of dissatisfaction, indeed of acute frustration, that is now being felt among solicitors and counsel at the level of legal aid scales will make the implementation of an effective duty solicitor scheme very much more difficult to achieve. In London the operation of the legal aid scheme in relation to criminal work by ordinary "criminal" solicitors is now almost impossible. It can only be done by wide use of cheap labour in the form of articled clerks and unqualified staff. There is no doubt whatever that standards have sunk and have been severely eroded as a result.

As to counsel, the polarisation of the Bar is now well under way between the commercial and specialist Bars depending on privately paid work and the ordinary common law and criminal Bars which depend largely on publicly-funded work. So frustrated indeed are the junior Bar, that at the annual meeting of the Bar next week an unprecedented attempt will be made to take over the Council by voting in a group of barristers backed by a manifesto pledged to take emergency action on the question of fees in the criminal courts. I therefore say to the noble and learned Lord the Lord Chancellor that unless solicitors are fairly and adequately remunerated for advice and representation the promise to set up the duty solicitor scheme will be but a hollow pretence.

I venture to suggest that the following are some of the essential considerations in setting up the scheme. Some of them have already been referred to by the noble and learned Lord. First, the remuneration for certified members of solicitors' staffs must include a proper stand-by payment for being on duty during out-of-office hours. Secondly, that must also include some form of compensation for loss of income during the following day and recognition of the absolute necessity to employ extra qualified staff if this scheme is to be effective. Thirdly, many solicitors and staff in London and in the big cities live far from the offices in which they work and far from the courts which they normally attend and provision must be made for accommodation and travel expenses.

Fourthly, there should be the provision—as has already been referred to—of communication equipment, of a central telephone facility, to enable calls to be made to a senior member of staff and by him to the appropriate junior members who will be required to attend in the different police stations. This facility must also be open surely to friends and relatives of the suspect as well as to the suspect at the police station.

Fifthly, there is the possibility of the designation of certain classes of case, particularly under the much deplored provisions of Section 25 of the Act—where, in certain circumstances, the police have power of arrest for the most trivial offences—where telephoned advice would be sufficient to fulfil the duties of a solicitor under the scheme.

The substantial increase in salaries of the judges has been justified on the grounds, that it is essential to recruit, retain and motivate the right people of the right quality". I know that the noble and learned Lord sitting on the Woolsack, of all people, will appreciate most that the quality of the Bench, from the stipendiary magistrate to the Lord of Appeal, depends on the quality of the intake at the bottom of the legal profession. They are the men and women who must be recruited, retained and motivated, and unless the remuneration of solicitors under this scheme is fair and is sufficient, then the duty solicitor scheme will either fail or become one simply of third-rate or totally inexperienced practitioners, setting up a cosy relationship with the police at the local police station, and bringing the administration of the criminal law into some disrepute. So I urge upon the noble and learned Lord that these two aspects of proper remuneration for solicitors are given the most urgent and continuing attention.

8.51 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I am grateful to the noble and learned Lord for raising this Question this evening. While, no doubt, there will be a number of matters to be smoothed out and there will continue to be questions requiring answer even after the scheme comes into operation, and while I am quite sure that a full scheme of this size will throw up difficulties in practice not foreseen in planning, the Question and the Answer together will, I hope, succeed in getting rid of a certain number of anxieties and uncertainties, and in stilling the not unnatural subjects of speculation to which these have given rise.

Neither of the two noble and learned Lords who have spoken gave me advance notice of particular queries, apart from the terms of the original Question, that they were going to raise. I make no complaint of this, but I have therefore had to prepare this answer in advance of such knowledge and, to some extent, must deal in generalities. In particular, I must say to the noble Lord, Lord Hutchinson, that this is not an occasion upon which I can discuss the remuneration of the Bar or of the Law Lords who are recruited solely from the Bar.

So I should begin, if I may do so, at the beginning. As the noble and learned Lord rightly said, the genesis of the 24-hour duty solicitor scheme was the Police and Criminal Evidence Act 1984. This was a Home Office measure which, to a large extent, I piloted myself through your Lordships' House.

Both my right honourable and learned friend the Home Secretary and I myself put the Act forward as a balanced set of proposals seeking to create a balance between the rights of the suspects and the rights conferred upon the police as an essential component of what was required in the course of their duty to protect the rights of the subject against criminal violence and dishonesty. Among the essential elements in that balance was the right of the person under interrogation by the police to access to legal advice. That right exists at present under the green form scheme. But the cost is relatively small; currently between £1 million and £2 million a year. But, as the noble and learned Lord has correctly stated, Sections 58 and 59 of the Act will dramatically increase both the exercise and the cost of the exercise of the right.

The Act and the code of practice provide that at all times both those arrested and those voluntarily helping the police with their inquiries at a police station should be told of their rights and given an effective means of exercising them. This may happen at any time during the day, and more particularly at any time during the night, or at weekends. Primarily, of course, the right is to contact one's own solicitor either privately or under the green form scheme, But it is rightly asked: what happens if the suspect's "own solicitor" either does not exist or cannot be contacted, which, of course, is particularly likely to happen either at night or at certain other times of the week? The answer is that the Act enables the Law Society to make arrangements for a scheme for a "duty solicitor" to be available at any time. This is no small undertaking, but the Government regard this scheme and the means of making it effective as an essential part of the "package" which they enacted in 1984. The Act comes into force on 1st January 1986, and we desire to see both elements of the scheme in force on that day, and not later.

Obviously, there have been difficulties. The Philips Committee—not, I say respectfully, the Lord Chancellor's department originally, although we took over the estimate of the Philips Committee—estimated the total cost, both of the own solicitor element and the duty solicitor scheme, at £6 million a year which did not seem to be excessive. On the basis of more recent researches, to which I think the noble and learned Lord referred, including work done on behalf of the Law Society, the true estimate seems more than £20 million rather than £6 million. This does not reduce my right honourable and learned friend's commitment. But it obviously involves a good deal more work for my right honourable and learned friend, and, indeed for my own office, in working out the details and securing cost-effectiveness.

The Government have decided to base their planning on two scales based on the difference between "arrestable offences" under Section 24 of the Act and more trivial offences which are not in that sense "arrestable". For arrestable offences, the suspect will be entitled to free legal advice and assistance up to a maximum of £90. Beyond the limit of £90, the solicitor will have to get authority, which is obtainable from the Law Society area office, for money actually and necessarily spent or incurred and the authority may be given so as to operate retrospectively in order to meet the set of circumstances envisaged by the noble and learned Lord.

For offences other than Section 24 offences, the limit will be £50 (exclusive of VAT). There will be no means test and no contribution. The solicitor will be able to charge this figure even though the green form has not yet been signed before the outward journey, in order to cover both advice and travelling. If the research is correct this scheme will not be cheap by any means. The take-up, according to my information, which does not differ very materially from what the noble and learned Lord said, is likely to be about 300,000 cases in a year; in other words, the cost is likely to be in excess of £20 million instead of the current £2 million or the Philips estimate of £6 million.

Total provision significantly in excess of £20 million is being made available for the additional cost of implementing the right to advice in the Act. That, I hope, answers the first of the series of questions raised by the noble and learned Lord. This will be found within the Government's overall planned expenditure total, the details of which are, as usual, to be discussed in the course of the autumn.

There is another complication which I must now mention and to which reference has already been made. The society, with the complete approval of the Government, retained management consultants to advise on the most efficient and cost-effective scheme. Their advice included provision for a central manned telephone answering system for the whole of England and Wales, which would be used to contact in any locality the duty solicitor there at any hour of the day or night. I have been pressed to add to that responsibility availability of the answering service to contact a suspect's own solicitor, and for the number of the answering service to be made widely available so that friends and relatives may also make use of it.

That arrangement would certainly more than treble the burden on the service and the management consultants have advised—in my view, quite rightly—that it would be unrealistic to introduce the first of those refinements, at least initially. I must confess to some doubts as to whether, as a matter of priority, the public would wholly endorse such a use of legal aid funds.

Naturally enough, solicitors will expect adequate remuneration for the service they will be providing. It has been a matter of regret to me not to have been able to give adequate details as yet. However, it is clear that the Government will be bound to pay fair and reasonable remuneration for the work done, and the Government intend to honour that requirement.

In addition to levels of remuneration, obviously we have also to agree the structure of remuneration. Subject to what I have already said, the "own solicitor" option must be under standard green form conditions. The profession has put forward proposals for the structure of the duty solicitor scheme. We have already agreed this in principle and in greater part. When the scheme comes into effect, a solicitor will have to hold himself available to respond promptly to requests. During the period of duty this will of course lead to a certain disruption in his professional and personal arrangements.

Thus the Government have agreed, subject to discussion on detail, an arrangement for standby payments. That was another point raised by both noble Lords who spoke. In addition, and outside normal office hours, there would have to be paid some enhanced rate so far as advice on arrestable offences is concerned. This will be the first time, I believe, that any such arrangement has been made in a legal aid scheme.

These are obviously delicate matters and I am sure that noble Lords would not expect me to negotiate them in this House in response to an Unstarred Question. Officials will have to do that with the Law Society. I hope to reach an agreement very soon.

I am grateful to both noble Lords for what they have said, and hope that I have gone some way to give them the information for which they asked. I have done my best to do so.