COMMONS AMENDMENTS (Hansard, 26 July 1999)

§ The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 31C and 31D en bloc, in lieu of Commons Amendment No. 31. When we last debated 1307 this Bill, the noble Lord, Lord Thomas of Gresford, tabled a Motion that this House should disagree with the Commons in their Amendment No. 31. No doubt it was inadvertent, immediately after his group of then successful Motions about salaried defenders, that he moved the Motion without speaking to it. I do not know whether he would have pressed it if he had first heard the explanation of Amendment No. 31, which I subsequently gave to the House. I imagine that he is as surprised as the rest of us to find that this issue is still before us.

These amendments relate to Clause 15, which establishes the duty of the commission to fund representation, sets out the means by which it may do so and provides powers to limit the extent to which the defendant may choose his or her representative.

It is right that defendants should be able to choose their representative, not least to promote their confidence in the criminal justice system. Clause 15(7) enshrines this principle. However, a completely unrestricted choice would not be practicable nor desirable. Subsection (8) therefore contains powers to limit that choice.

Amendment No. 31 sought to extend those powers in order to ensure, as far as possible, that a person was represented by the same lawyer throughout the case. One of the fundamental weaknesses of the present criminal legal aid system is its fragmentation. This can lead to help being given under several different parts of the scheme in a single case: green form advice, advice and assistance at the police station, advice from the duty solicitor at the magistrates' court and a full legal aid order for representation in court. That produces duplication and delay as well as unnecessary cost.

Amendment No. 31C, like Amendment No. 31 before it, is central to our plans to eliminate these deficiencies in the future. It is a power to make regulations providing that an individual should stay throughout the case with the lawyer he first chooses unless there is a good reason to change. Once an individual has chosen an adviser, typically when being questioned by the police, the taxpayer should only have to pay for another lawyer to take over the case, necessarily repeating a good deal of the work that has already been done, if there is a good, sound reason for a change. An example would be a conflict of interest between clients.

Perhaps I may explain how we envisage the system working in practice. A person being questioned by the police will be able to select his or her adviser from any firm holding a contract with the legal services commission, or, perhaps, a salaried defender. Suspects would be shown a list of all firms based in the area and be informed of the implication of their choice. If the chosen adviser were not available, the individual would use the duty solicitor for the time being. But the duty solicitor would not be considered to have been selected, as a preference had been expressed for someone else. If an individual declines to express a preference, he will be advised by the duty solicitor and deemed to have selected the duty solicitor as his representative.

1308 Amendment No. 31C reinstates the power provided by Amendment No. 31, but in a way that makes clear that it is only intended to apply to a chosen adviser. The power provided by Amendment No. 31 could have been applied to any provider of advice and assistance; it did not distinguish between those who had been chosen by the suspect and those providing advice only because the chosen adviser was not available. The intention was for the regulations to make clear that a person advised by the duty solicitor would not be deemed to have chosen the duty solicitor as representative if a different choice had been expressed.

Amendment No. 31C is a more limited power that applies only to chosen advisers. Amendment No. 31D provides power to define what constitutes a choice. This is necessary to deal with the situation of an individual who declines to express any preference. The regulations would provide that someone who remained silent, having been informed of his right to make a choice and the implications of not doing so, would be deemed to have chosen the duty solicitor who actually advised him. This is necessary to prevent people playing the system by refusing to express a preference, accepting the advice of the duty solicitor, and then seeking to exercise their right to choose a different representative when the case reaches court, probably causing the case to be adjourned.

I have said repeatedly during the passage of the Bill that the public will receive quality-assured services. People requiring criminal defence services will benefit from performance standards that will be incorporated in all contracts. These will apply equally to salaried defenders. They will include targets for the proportion of requests to attend at a police station, having been selected by the individual, which are met by the solicitor's firm or the offices of the salaried defender. All firms with criminal defence service contracts and any salaried defenders will take part in the duty solicitor's rota. Therefore, there is no reason to suppose that advice and representation from the duty solicitor in any sense constitutes a second-class service.

Perhaps I may add that we intend to consult on the details of all the regulations under Clause 15, including regulations about continuity between advice and representation under these amendments, as well as the details of the regulations that I mentioned when dealing with the previous group of amendments under Clause 15(8)(d) and (e). Regulations under Clause 15(8)(e) will define circumstances in which a change of representative is justified such as a conflict of interest between clients or a genuine and well founded loss of confidence or other breakdown in the lawyer/client relationship. Regulations under Clause 15(8)(d), dealing with the permitted number of representatives, will define the circumstances, including all jury trials, when a defendant may choose a specialist advocate as a second representative.