COMMONS AMENDMENT (Hansard, 14 July 1999)

§ Lord Falconer of Thoroton

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. With the leave of the House I will speak also to Amendments Nos. 45, 46, 50, 143 to 158 inclusive and 199.

This group of amendments clarifies the powers to prescribe the procedures for courts carrying out functions under Part I of the Bill, particularly in relation to granting rights to representation in criminal cases. It also includes a number of minor drafting amendments.

Amendment No. 45 provides a general power to prescribe in regulations what member or officer of a court is able to exercise the functions of any court or tribunal under this part. This would, in particular, enable regulations to prescribe the procedure for consideration of an application for a right to representation. In addition, for the magistrates' courts, Amendment No. 151 gives power to prescribe in rules when a justices' clerk can make decisions about the right to representation.

Amendment No. 46 provides the flexibility to prescribe different provisions for different areas to accommodate, for example, pilot arrangements.

A right to representation includes a right to advice and assistance as to an appeal. As presently drafted, this is an open-ended entitlement. Amendment No. 50 would allow regulations to prescribe time limits for the provision of advice on appeal, after which the right would lapse. Regulations on the scope of advice and assistance could be made under Clause 14 to allow for cases where advice was needed at a later date.

Amendment No. 150 places the court under a duty to consider withdrawing a right to representation in prescribed circumstances. The Bill as presently drafted gives the court a general power to withdraw a right to representation. Regulations will require the court to 429 consider withdrawing a right to representation in certain circumstances. For example, it is intended to place the court under a duty to review the need to continue representation where a reduction in the charge means that representation is no longer necessary in the interests of justice.

It is also intended to prescribe circumstances where the individual fails to co-operate with a means enquiry under Clause 17. Where there is reason to believe that an individual could afford to pay for his own defence, it may be appropriate to conduct a means enquiry during the case so that the judge could consider making a recovery of defence costs order immediately after the trial. If the individual fails to co-operate with a request to provide financial details, the court would have to consider withdrawing the right to representation.

Amendment No. 199 adds two new sub-paragraphs to paragraph 9 of Schedule 11, which contains transitional provisions about the funding of representation in criminal cases. At present, criminal cases in the Crown Court and appeal courts are funded directly by the Lord Chancellor. In future most, if not all, criminal representation will be provided under a contract with the Legal Services Commission or by salaried defenders. But initially, before contracting is fully developed, it will be simpler to retain the current administrative arrangements by which the higher courts assess and pay remuneration on a case-by-case basis, and the Lord Chancellor funds it directly. The existing paragraph 9 of Schedule 11 provides the power to achieve this. The first new sub-paragraph added by Amendment No. 199 provides a link with the power to make case-by-case payments in Clause 15 and deals with the consequential implications for other Acts. The second new sub-paragraph provides for the provisions in Clause 25 about remuneration orders to apply when the Lord Chancellor is funding representation as well as when the Commission is.

Finally, Amendments Nos. 43, 143, 144, 146, 148, 149 and 152 to 158 inclusive achieve drafting consistency by referring to the right as a "right to representation". I commend the amendments to the House.