HL Deb 24 February 1998 vol 586 cc548-59

3.5 p.m.

(The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 41 [Early administrative hearings]:

Lord Williams of Mostyn moved Amendment No. 197: Page 32, line 10, leave out from ("means") to end of line I I and insert ("representation under Part V of the Legal Aid Act 1988").

The noble Lord said: This is a short, tidying up amendment which follows from the fact that the definition of "legal aid" in Clause 41(4)(b) is too wide for the purposes of an early administrative hearing. Such a hearing is concerned only with the defendant's eligibility for a legal aid certificate, covering representation under Part V of the Legal Aid Act 1988. Amendment No. 197, therefore, seeks to delete the reference to "advice and assistance" under Part III of the 1988 Act which does not fall to be determined by the court. I beg to move.

On Question, amendment agreed to.

Baroness Anelay of St. Johns: moved Amendment No. 197A: Page 32, line 11, at end insert— ("() This section applies only to early administrative hearings and not to pre-trial reviews or plea and directions hearings.").

The noble Baroness said: In moving the previous amendment, the Minister has already referred to the background to Clause 41. I have tabled this probing amendment because I should like the Minister to explain whether or not the powers of the justices' clerks will be extended to pre-trial work generally. The Magistrates' Association has pointed out to me that, as it stands, the clause is rather unclear. It refers first to hearings being conducted by a single justice, but goes on to explain that justices' clerks may also conduct them. I note that those hearings are not defined specifically or referred to as "early administrative hearings" in the text of the clause, but that the expression "early administrative hearings" is used in the side note. I beg to move.

The Solicitor-General (Lord Falconer of Thoroton)

I am grateful for the fact that this amendment has been moved because it gives the Government the opportunity to describe the objective of Clause 41. I believe that that is what the probing amendment seeks to achieve. The provision will enable justices sitting alone, and justices' clerks, to conduct, shortly after charge, hearings at which arrangements can be made for the defendant to obtain legal aid and to consult a legal adviser. The clause has no bearing whatsoever on what happens at subsequent hearings, referred to in the amendment as "pre-trial reviews". Those hearings are in any event not defined in statute.

It is not clear what the effect of the amendment would be, but if its purpose is to limit the effect of Clause 41 to the first hearing in a case, it is superfluous as that clause confers no powers either on a justice or on a clerk other than that to conduct an early administrative hearing, as described in Clause 41. The single justice or clerk who conducts such a hearing may also exercise any other powers that he possesses, but those powers are independent of Clause 41. In the case of a single justice, they are exercised by virtue of Clause 40 or other legislation and, in the case of a clerk, by virtue of rules made in accordance with Clause 40. I very much hope that I have explained the point that the noble Baroness has raised. In those circumstances, I invite her to withdraw her amendment.

Lord Taylor of Blackburn

What does my noble and learned friend mean by "clerk"? Is he referring to a senior clerk or any clerk within the department?

Lord Falconer of Thoroton

In the Bill "clerk" means a person who is qualified to act as a clerk in a relevant justices area, not just anyone in the office.

Baroness Anelay of St. Johns

I am grateful to the noble and learned Lord for his explanation of the objectives of the clause. I am reassured having heard his detailed explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41, as amended, agreed to.

Clause 42 [No committal proceedings for indictable-only offences]:

Lord Falconer of Thoroton moved Amendment No. 198: Page 32, line 15, at end insert ("and (b) for any either-way or summary offence with which he is charged which fulfils the requisite conditions (as set out in subsection (8A) below). () Where an adult who has been sent for trial under subsection (1) above subsequently appears or is brought before a magistrates' court charged with an either-way or summary offence which fulfils the requisite conditions, the court may send him forthwith to the Crown Court for trial for the either-way or summary offence.").

The noble and learned Lord said: I beg to move Amendment No. 198 and at the same time speak to Amendments Nos. 199 to 205. These are technical amendments to improve the Bill. As presently drafted Clause 42 is designed to secure the prompt removal to the Crown Court of indictable-only offences, but it is not sufficient for these offences alone to be sent to the higher court. If a defendant faces other charges triable either way which are related to the indicatable-only one it may be necessary for those charges to accompany it to the Crown Court. That is why where an adult is sent to the Crown Court for trial for an indictable-only offence, Clause 42 requires the court also to send there any related either-way charge which is before the court on that occasion either against him or against another adult jointly charged with him. But because of the reference to "that occasion" the clause does not take account of the situation where the defendant has already been sent to the Crown Court for trial for an indictable-only offence and there is a subsequent appearance in court on a related either-way charge either by that person or by another adult jointly charged with him. For example, a suspect may be caught and charged with an either-way offence jointly with the main suspect only after the latter has been arrested and appeared in court. The effect of these amendments is to give the magistrates' court a discretion to send the defendant to the Crown Court for trial on that related charge.

In deciding whether to exercise this discretion the court will be able to take into consideration the stage which the indictable-only case has reached. The appearance on the related charge may follow soon after the indictable-only one, in which instance it would be right for that case to be sent forward too so that they can be dealt with together. If, on the other hand, the indictable-only case had already progressed a long way, it is possible that sending the related charge up to the Crown Court to join it would lead to extra delay, in which case the discretion would be exercised against sending it up to the Crown Court. That is what the first part of these amendments seeks to achieve.

In relation to young people, these amendments merely bring the clause into line with Section 24 of the Magistrates' Courts Act 1980. In place of a simple discretion to send a young person to the Crown Court to be tried jointly with an adult on an either-way charge, the court is required to send him where it is necessary in the interests of justice. That is the same test as under the Magistrates' Courts Act 1980. That is the effect of the proposed amendments.

3.15 p.m.

Baroness Anelay of St. Johns

I understand the intention of the Government underlying the group of amendments to which the Minister has just spoken. Clause 42 provides that the proceedings for indictable-only offences should commence in the Crown Court. These amendments seek to speed up the processing of cases. At Second Reading I raised concerns about the potential effect of Clause 42 on the information available to the defence at the early stages and upon the administration of cases when they reached the Crown Court. I am grateful to the noble Lord, Lord Williams of Mostyn, for writing to my noble friend Lord Henley on these matters. In particular, I am grateful for his reassurance that the question of resources will be looked at in the course of piloting these new procedures.

The amendments to Clause 42 tabled by the Minister fulfil the intention underlying the clause, as the Government see it, of mopping up as many cases relating to the same defendant as possible and having them heard together in the same accelerated way. We on these Benches do not oppose the amendments. However, I should like to take this opportunity to remind the Minister of the potential effects of Clause 42. The Law Society has pointed out that the practical implications of this major procedural change must be carefully thought through to ensure that it is fair and workable. There has already been a significant increase in the number of plea and directions hearings at the Crown Court. These are invariably heard by the resident judge or senior nominated judges at the Crown Court centre. That reduces the amount of time available to them to preside over trials. If they are to undertake case management of indictable-only offences and related matters, I believe that they will have even less time to spend on trials where they would normally be expected to take a lead in cracking the lists. Not only will that cause delay ultimately in the disposal of cases which go to trial, there will also be a tendency to allocate trials to recorders and assistant recorders. I am referring to those who are not authorised to take plea and directions cases.

There is a risk that the provisions may change the overall character of the work of the judges in the Crown Court: they become case managers instead of presiding over trials. We on these Benches do not oppose the amendments. However, we seek reassurance from the Minister that the Government have taken into account the potential changes that may occur as a result of the amendments which build upon the original clause. It is important that the Committee is aware of the potential changes when agreeing to Clause 42 with the amendments.

Lord Falconer of Thoroton

I am grateful for the indication by the noble Baroness that she does not oppose these amendments. I note carefully the points that she has made about the administrative effect of having indictable-only offences in the Crown Court. I reassure the noble Baroness that considerable thought is being given to the question of how it will affect proceedings in the Crown Court. Unquestionably the overall aim is to speed up the trial of indictable-only offences. However, I reassure the noble Baroness that proper thought is being given to how this may work out in practice.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 199 to 205: Page 32, line 18, at end insert ("or a subsequent"). Page 32, line 22, after ("shall") insert ("where it is the same occasion, and may where it is a subsequent occasion,"). Page 32, line 23, at end insert— ("() Where a court sends an adult for trial under subsection (2) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged which fulfils the requisite conditions."). Page 32, line 28, after ("same") insert ("or a subsequent"). Page 32, line 30, leave out ("may") and insert ("shall, if it considers it necessary in the interests of justice to do so,"). Page 32, line 32, leave out from second ("a") to end of line 38 and insert ("child or young person for trial under subsection (3) above, it may at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged which fulfils the requisite conditions."). Page 33, line 11, at end insert— ("(8A) An offence fulfils the requisite conditions if—

  1. (a) it appears to the court to be related to the indictable-only offence; and
  2. (b) in the case of a summary offence, it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.").

The noble and learned Lord said: I beg to move Amendments Nos. 199 to 205 en bloc.

On Question, amendments agreed to.

Clause 42, as amended, agreed to.

Clause 43 [Provisions supplementing section 42]:

Lord Thomas of Gresford moved Amendment No. 206: Page 34, line 3, at end insert— ("() Unless the accused consents, a magistrates' court shall adjourn proceedings under section 42 if those proceedings are the first hearing at which the court has decided not to grant bail").

The noble Lord said: I beg to move Amendment No. 206. The new Clause 42 will make a very substantial change to the traditional way in which indictable offences are committed to the Crown Court. The purpose of the amendment is simply to retain the present protections in the magistrates' court for persons who seek bail. At the moment it is possible for a person who goes to the magistrates' court to make an application at the first hearing for bail and, if that is refused, to make a subsequent application on change of circumstances. If that second application fails it is possible for the defendant to go to the Crown Court and apply for bail. All that this rather simple amendment seeks to do is to maintain the right of the defendant to make successive applications for bail in the magistrates' court before he has to go to the Crown Court for that purpose.

Lord Falconer of Thoroton

I understand the effect of the noble Lord's amendment. It is inspired by the Law Society's concern to ensure that offenders facing indictable-only charges do not lose the opportunity to make a full bail application at a second hearing before the magistrates' court.

Although the intention is that indictable-only cases should be sent straight from the magistrates' court to the Crown Court, there is no risk of a defendant being held in custody for longer than at present. If a defendant is refused bail at the preliminary hearing before the magistrates' court, it will be open to him to apply to a Crown Court judge for bail. Although cases are, in any event, expected to appear in the Crown Court within eight days of the preliminary hearing, a defendant need not wait for that Crown Court hearing before applying but can do so immediately.

Under the new proposal a defendant can apply for bail when he first comes up in front of the magistrates' court. If he is refused bail at that stage, he can either wait until the matter next appears at the Crown Court—which would probably be within eight days—or, if he wishes, he can make an immediate application to the Crown Court for bail upon refusal by the magistrates' court. So he will get his two shots within reasonably quick time, which is the present position. The defendant is not in any way prejudiced by these provisions in so far as bail is concerned.

In the light of what I have said, I trust that the noble Lord will withdraw his amendment.

Lord Thomas of Gresford

I am most grateful to the noble and learned Lord. I share the view expressed by the noble Baroness, Lady Anelay of St. Johns, that at the moment insufficient thought has been given to the pressure that will exist on the Crown Court. Not only must it deal with the raw material of committal for trial—which to some degree is sorted out at magistrates' court level—but now it will also have to deal with bail applications. In the past that would not have been the case.

I urge the Minister to take that on board and give it some further thought, but I do not wish to press the amendment at this stage.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 207: Page 34, line 8, at end insert— ("() A person may be represented at any pre-trial hearing before the Crown Court, including a hearing at which an application provided for in paragraph 2(1) of Schedule 2 to this Act is made, by an authorised advocate or authorised litigator as defined by section 119(1) of the Courts and Legal Services Act 1990.").

The noble Lord said: This is an amendment to allow a solicitor who has not attained the higher rights of audience to represent an accused at a pre-trial hearing in the Crown Court.

I go back to the dim and distant past when I was a solicitor engaged in submitting no case to answer in the magistrates' court. I recall that that procedure was one way in which a defendant could very quickly be relieved of the pressure and worry of a charge which was not well founded. That was a function normally performed by solicitors without too much difficulty.

It is a function which the amendment suggests should continue in the Crown Court at the pre-trial stage if it is quite obvious that the papers which have been served upon a defendant do not support the case against him. He should then be released as soon as possible and have the charges dismissed. To do that the solicitor who has control of his case should have the right of hearing in the Crown Court. I beg to move.

Lord Ackner

As I understand it, the amendment would allow any solicitor to represent an accused at a pre-trial hearing at a Crown Court even though he or she had not obtained a higher right of audience.

At present only barristers and those solicitors who have passed the Law Society's tests to gain higher rights of audience may appear in the Crown Court at such a hearing. My concern is that this apparently modest little amendment seeks to bypass the statutory route for granting rights of audience.

In 1989 the Lord Chancellor produced Green Papers designed to reorganise, among other things, rights of audience. Initially he intended that he and he alone should issue advocacy licences. It was pretty firmly pointed out by the judiciary that they, the judges, had a considerable interest in who had rights of audience. As a result a fairly complex procedure was built up under which the Lord Chancellor's Advisory Committee—the majority of whom were laymen, but naturally the Bar and the solicitors were represented—would receive an application from the professional body wishing to extend the rights of audience. It would then make inquiries and then make a report saying whether or not it agreed. The report then went to the Lord Chancellor, who expressed his own view, and it then finally went to the designated judges—the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. If any one of them disagreed with the new proposal, that was the end of it, so sensitive was the accepted position in regard to altering the rights of audience.

The Act provides in Section 27: The question whether a person has a right of audience before a court, or in relation to any proceedings, shall be determined solely in accordance with the provisions of this Part". The Act provides, in terms, that the philosophy behind the approach to extending rights of audience is that provision should be made for better ways of providing legal services with a wider choice of persons providing them, while maintaining the proper and efficient administration of justice. The procedure recognises the importance of ensuring that only people with suitable qualifications and experience are able to appear before the court, which is particularly important in criminal cases.

I accept that the Schedule 4 procedure may be in need of some reform, but it has provided for proper debate and scrutiny on the suitability of people to exercise rights of audience in a number of cases over the past five years. Its function is to consult widely and then issue a decision for consideration by the Lord Chancellor and the designated judges. It would be wrong to adopt an ad hoc approach to particular areas of the system because that could lead to undesirable inconsistencies. This is a case where the statutory procedure, until altered by statute, should be adhered to.

Lord Henley

I echo the concerns expressed by the noble and learned Lord, Lord Ackner, and it is unnecessary to repeat them. I have only one question to put to the noble Lord, Lord Thomas. Obviously this amendment will have implications for the Bar in that it extends the right of audience for solicitors yet further. When the noble Lord responds to the government's response, will he say what consultations he had with the Bar Council and what concerns the Bar had about his particular amendment?

3.30 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

I am grateful to the noble Lord, Lord Thomas of Gresford, for moving the amendment, and for raising what is undoubtedly an important subject. Clause 42 contains provisions to abolish committal proceedings for indictable-only offences, and to remove the pre-trial stages of prosecutions for those offences from magistrates' courts to the Crown Court. One of the results of those provisions is that Crown prosecutors and defence solicitors who can now handle those procedures in magistrates' courts will no longer be able to do so because they have been moved to the Crown Court.

The noble Lord has rightly drawn attention to the shortcoming which arises. I am grateful to him for having done so. But, important though that shortcoming is, it is only part of a much wider deficiency in the current arrangements for dealing with rights of audience. The subject ought not to be dealt with piecemeal. Rather, we must look for a comprehensive answer to the full range of rights of audience problems. I agree, therefore, to this extent, with the noble and learned Lord, Lord Ackner: that the amendment has a wider significance than may at first appear.

Perhaps I may take this opportunity to explain. The current regime for determining rights of audience, and indeed rights to conduct litigation, is, as the noble and learned Lord said, set out in the Courts and Legal Services Act 1990. The Committee will no doubt remember the debates in this place and elsewhere that surrounded that legislation. My predecessor was right to seek to open up the provision of legal services, especially rights of audience, so that the question of who could appear in the courts was based on something other than old-fashioned restrictive practices.

The provisions in Part II of the 1990 Act have singularly failed to achieve what was hoped for them. It is arguable that the only tangible achievement is that, seven years on, 596 solicitors in private practice have been awarded the right to appear in the higher courts.

As the Government outlined at the general election, we are not satisfied that the current restrictions on the exercise of rights of audience, in particular, for qualified lawyers working for the CPS, are in the public interest. Moreover, the existing procedures in the Courts and Legal Services Act for granting or extending rights of audience and rights to conduct litigation have proved to be unacceptably labyrinthine and slow.

Consequently, the objective of the 1990 Act, which was to provide for a wider provision of legal services, and a wider choice of person supplying them, has effectively been frustrated. Under the existing procedure set out in the 1990 Act, if an authorised body such as the Law Society or the Bar Council wishes to make a change in its rules of conduct or qualification regulations relating to rights of audience or rights to conduct litigation, it must first seek the advice of my advisory committee on legal education and conduct, before making a formal application to the Lord Chancellor.

The Lord Chancellor is then obliged to refer the application back to the committee for its advice to him, and to the Director General of Fair Trading for his advice. Next, the Lord Chancellor must await any further comments which the authorised body wishes to make before deciding whether to approve the application. The Lord Chancellor must then write to the designated judges under the Act—the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, and the Vice-Chancellor—to inform them of his decision, and the reasons for it; then to request their decisions and reasons. Only if the designated judges and the Lord Chancellor unanimously approve an application can the relevant change in the rules be made.

The inevitable consequence of that lengthy procedure is that even minor and uncontroversial rule changes typically take many months to approve, while more controversial applications can take many years. Let me give an example. The Law Society applied for rights of audience in the higher courts in April 1991. That part of the application which related to solicitors in private practice was granted in December 1993, but it was not until February 1997 that the application for employed solicitors was determined. The effect, after nearly six years of consideration, was a derisory increase in rights for employed solicitors, which allowed them to appear in trials in the higher courts only if they were led in those courts by an independent advocate; that is, a barrister or solicitor in private practice with the requisite rights of audience.

A fundamental reshaping of the provisions in the 1990 Act is required. I agree with the noble Lord that changes are needed, but I have to say that they should go very much wider than the present amendment implies and very much wider than the scope of the present Bill permits. We need a fresh modern approach to rights of audience. Parliament needs to be given an early opportunity to consider afresh the provisions required to widen rights of audience.

I am actively considering what proposals to bring forward. I shall shortly embark on consultations with the legal professions about the way in which their rules impact on the exercise of rights of audience. A comprehensive answer is now needed to the gaps in rights of audience, and to the machinery put in place in 1990. The noble Lord has done this place a strong service by raising the issue today; but, in the circumstances, I would ask him to withdraw his amendment so that this issue can be considered further and properly in its wider context. I look forward to returning to this place in due course with the Government's clear proposals for a modern regime on rights of audience.

Lord Ackner

Before my noble and learned friend sits down, I understand the criticism that he has made on the length of time it took for the decision to be made about rights of audience of employed solicitors. It took far too long. There may be a number of reasons for that. But is he criticising the quality of the decision, because the decision resulted from a majority decision of his own advisory committee? It was then put to the Lord Chancellor and the four designated judges. They modified that decision in a manner which need not be described in detail. If he is criticising the quality of the decision, he is criticising not just his predecessor but all four designated judges.

The Lord Chancellor

I am not sure if I should, on that account, abstain from doing so, but I do not do so today. As I have said, my view proper is for me to return to this place with our clear proposals when all these matters can be fully and exhaustively debated.

Lord Henley

We are grateful to the noble and learned Lord for taking the trouble to come to the Committee to make what is an important announcement about these matters. I have just one question. I suspect it is one to which he may not necessarily wish to respond at the moment. I put it in hope. Will he say something about the time-scale of the review that he has announced, and when he hopes to come back before this place to make the announcements that he hopes to make—as he put it—in due course?

The Lord Chancellor


Lord Thomas of Gresford

I am grateful to the noble and learned Lord the Lord Chancellor for taking the trouble to come here to give such a full reply to my amendment. I must confess that I have a somewhat chequered past in that for a period of five years I was a solicitor and then sought to transfer to the Bar. In those days—I am talking about the late 1960s—it was necessary for me to go into purdah for two years when I was not allowed to be one thing or the other. I then had to take the final and intermediate examinations of the Bar together and during the two-year period I filled my time by lecturing.

By the time I was admitted and called to the Bar, I had a certain view of its restrictive practices which have remained with me. I have always believed that to use the professional distinction between barrister and solicitor in a restrictive way is wrong and unnecessary. When it comes to higher advocacy it is, and for a long time has been, my considered view that experience of the Bar and daily contact with the courts and the judges is of incalculable benefit to the public. The Bar is far better organised to be able to give a service of advocacy which solicitors cannot give. Perhaps I would not go all the way with the noble and learned Lord the Lord Chancellor if his proposal is entirely radical. However, it is my view that the Bar can compete with solicitor advocates without any problems.

The other point of view is that solicitor advocates can be of excellent quality. I have had the privilege of leading a number of solicitors as my juniors who have received the certificate. They have provided me with the most excellent service and with a contact with the client that one would not normally expect. I am sure that that benefits the public generally.

I return to this little amendment. It is extraordinary that today, I, as a solicitor, could go into a magistrates' court, submit that there was no case to answer and have it stopped there and then, the charges dismissed and my client a free person without any further worry. However, tomorrow, if the Bill goes through as I assume it will, and the matter is sent directly to the Crown Court, I, as a solicitor, will no longer able to do so.

I recall that many years ago as a solicitor I appeared in a magistrates' court in a manslaughter case involving the death of an eight week-old baby. My client was acquitted following a submission of no case to answer before the magistrates of Glyn Ceiriog in a remote valley in North Wales. That meant that at an early stage the individual was relieved from the possibility of a serious charge. My amendment suggests merely that a solicitor who has control of the case and is completely au fait with all the facts and circumstances should be able to go to a Crown Court judge and, on the papers, be able to submit that there was no case to go before a jury.

When one goes that step beyond and comes before a jury in a criminal case where the question of guilt or innocence is finally to be determined and where the higher skills of advocacy are to be employed, that is a different situation. I reserve the right to make comments on that should the noble and learned Lord put forward future proposals.

In answer to the noble Lord, Lord Henley, although I normally consult with the Bar Council on matters of concern to it—and I am currently in discussion with it on legal aid matters, for example—on this matter I have not received any official communication nor have I been in communication.

It so happens that with the background that I have outlined and with that chequered career, I have kept myself far away from Bar politics and from defending the restrictive practices over many years. With that caveat to the noble and learned Lord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 agreed to.

Lord Hoyle

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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