§ 12.34 p.m.
§ The Parliamentary Under-Secretary of State, Lord Chancellor's Department (Lord Bach)
My Lords, I beg to move that this Bill be now read a second time.
The Bill seeks to clarify two points arising out of the Access to Justice Act 1999 where it has become apparent that the powers taken are probably insufficient to maintain the current levels of legal assistance available to those involved in criminal investigations and proceedings.
First, there is a doubt that the interaction of Sections 13 and 14 of the Act allow for advice and assistance to take the form of advocacy in certain proceedings. Secondly, the Bill seeks to ensure that advice and assistance is available to those involved in criminal proceedings, rather than only to those involved in criminal investigations.
As your Lordships know, the provision of criminal legal aid is governed by the Legal Aid Act 1988. That Act makes it possible for those involved in criminal proceedings or investigations to receive advice and assistance, including limited representation at a court or in certain other hearings. That is known as "advice by way of representation" or, more commonly, as "ABWOR".
The Government always intended that that form of limited representation should continue to be available when the relevant provisions of the Access to Justice Act are brought into force on 2nd April this year. These provisions replace criminal legal aid with representation orders from the criminal defence service. The criminal defence service is to be administered by the Legal Services Commission, which is to replace the Legal Aid Board.
It was during the drafting of the detailed secondary legislation necessary to support the new criminal defence service scheme that my officials raised doubts as to whether the Access to Justice Act did all that was intended. As noble Lords will no doubt recall, the Access to Justice Bill, as it then was, was amended considerably in response to issues raised by both Members of Parliament and your Lordships. One inadvertent result of those amendments appears to be that the continued provision of limited representation will probably not be possible.
Therefore, this Bill clarifies the extent of the Legal Services Commission's duty to fund advice and assistance as part of the new criminal defence service 846 from April 2001. The limited form of representation for which the Bill provides will be known as "advocacy assistance".
I hope that it may be helpful if briefly I clear up any confusion that may have arisen between the terms "criminal defence service" and "salaried defence service". The criminal defence service is the name given to the service which provides all forms of publicly funded legal help for individuals who face a criminal investigation or prosecution. The vast majority of expenditure on the criminal defence service—in the region of £430 million per year—will be needed to pay independent solicitors and barristers who represent those accused of criminal offences.
The salaried defence service will be a tiny part of the criminal defence service. It will also be administered by the Legal Services Commission. The Government believe that a mixed service with some directly employed lawyers and some private practitioners will provide the best service to the public. The salaried defence service will be very small for the foreseeable future. We are planning to open only six offices during the pilot phase, compared to the 3,000 or more solicitors' firms which will have a contract with the Legal Services Commission for the provision of criminal defence services.
The Bill affects only the services which can be provided—it does not distinguish by whom—but, from what I have said, it follows that in the vast majority of cases advocacy assistance will be provided by private practitioners.
Advocacy assistance will form the basis of the court duty solicitor scheme. That scheme provides that, where an individual is remanded in custody or where there is a risk of imprisonment, a duty solicitor at court can give advice and representation at the first hearing. The benefits of the scheme are that vulnerable individuals are represented and, for the criminal justice system as a whole, delay will be avoided in cases where there is no time for the individual to apply for a full representation order.
Advocacy assistance will be available to a prisoner who appears before a parole board hearing or to an individual who faces imprisonment as a result of non-payment of a debt. In a letter generally supporting this Bill, the President of the Law Society, Mr Michael Napier, sought reassurance on one aspect—that is, on those who face imprisonment as a result of non-payment of a debt. I can say to the House—and I do so on Second Reading—that those who face such a sentence of imprisonment as a result of non-payment of a debt are dealt with by the provisions of this Bill.
The second point which the Bill addresses is to ensure that advice and assistance is available for those involved in criminal proceedings as well as in investigations. Section 13 of the Access to Justice Act currently refers only to investigations. It is arguable that once an individual appears in court. he is no longer under "investigation".
847 I hope that your Lordships will agree that this is a small but important Bill which clears up any doubt about whether the Legal Services Commission will have the power to fund advice and assistance as it was originally intended.
My noble and learned friend the Lord Chancellor has spoken, as I understand it, to both the noble Lords, Lord Kingsland and Lord Goodhart, who have kindly indicated their support for the Bill and have agreed to facilitate a fairly smooth passage through this House. I am grateful to them and hope that your Lordships in general will agree that the Bill should have a smooth and speedy passage, reaching the statute book before the Access to Justice Act is brought into force in April next year.
§ Moved, That the Bill be now read a second time.—(Lord Bach.)
§ 12.41 p.m.
§ Lord Goodhart
My Lords, I am tempted to use the old judicial formula of saying "I concur", sitting down and saying nothing more. Indeed, I intend to be very brief indeed on this.
There is no doubt that the old ABWOR scheme was extremely useful. It provided a cheap and relatively informal but useful method of providing a limited degree of assistance in certain circumstances. It would, of course, be most unfortunate if it turned out that similar assistance by way of advocacy were not available under the Access to Justice Act. For that reason, I entirely support the aim of the Bill.
Again, I support entirely the idea that the category of those entitled, under Section 13 of the Act, should be widened to include a group of people who are the subject of criminal proceedings, other than "investigation".
The Minister referred to the salaried defender service. That is something which we opposed strongly during the debates on the Access to Justice Bill and we continue to oppose it in principle. Of course, it has nothing to do with the subject matter of this Bill and, therefore, I do not propose to take up the time of your Lordships' House in repeating our objection to the setting up of a system for public salaried defenders. Therefore, I am happy to support the Second Reading of this Bill.
§ 12.43 p.m.
§ Lord Kingsland
My Lords, this Bill arises from the unintended consequences of the relationship between Sections 13 and 14 of the Access to Justice Act 1999, consequences which the Government readily acknowledge.
Under the Legal Aid Act 1988, the initial advice and assistance available to those facing criminal proceedings includes limited support in court. By contrast, it is unlikely, as the Minister has said already, that Section 13 of the Access to Justice Act 1999 will now allow the Legal Services Commission to fund advocacy services in situations such as making a bail application or representing an accused person who is at risk of being imprisoned.
848 In addition, help granted in accordance with Section 14 and Schedule 3 to the Act will no longer be available to individuals in the circumstances covered by the existing assistance by way of representation (ABWOR) arrangements which form the basis of the duty solicitor scheme.
In short, the Act fails to provide assistance in many of the areas in which it is presently available, thus derogating from existing individual rights. Moreover, the particular rights concerned are almost certainly protected by Article 6(1) of the European Convention on Human Rights with which we were assured, at the time of its enactment, that the Act would conform.
I do not propose to embroider my observations on what the Government have readily acknowledged to be a clear breach of their human rights obligations. But it is important now to ensure that those regrettable and serious defects are rectified as soon as possible.
However, an error of that magnitude serves to amplify the Opposition's frequently expressed concerns about the quality of representation that the public will receive from the criminal defence service. Those are directed in particular to the proposals to establish a salaried criminal defence service. As the noble Lord, Lord Goodhart, said, in the course of the debates on the Access to Justice Bill, his party opposed in principle a salaried criminal defence service. The Opposition did likewise.
During the passage of the Access to Justice Bill through your Lordships' House, the noble and learned Lord the Lord Chancellor envisaged a salaried service playing a role only where there was clear evidence that the private sector was unable to provide, in a particular location, services of an acceptable quality and quantity. Can your Lordships' House be reassured that that commitment will continue to be honoured?
Can your Lordships' House also be reassured that before establishing salaried defence lawyers in a particular location, a proper cost/benefit analysis will be undertaken so as to compare the merits of such an initiative with the alternatives available through the private practising profession?
Will the Minister further assure your Lordships' House that the Government have every intention of respecting the guarantee contained in Section 15(4) of the Access to Justice Act 1999 that no one can be compelled to be represented by a CDS salaried lawyer?
I hope that the Minister will go some way to restoring our confidence in the Government's handling of criminal defence matters by giving unequivocally positive responses to each of those questions.
§ 12.48 p.m.
§ Lord Bach
My Lords, I am grateful to both noble Lords who have spoken for their support for the Bill. It is an important Bill because it protects the rights of individuals involved in criminal proceedings to receive advice and assistance at the same level as is available now.
849 The background to this is that the Access to Justice Bill contained all the relevant clauses on advice and assistance but, as I said, the Bill underwent a large number of significant amendments during its passage through Parliament. It was while working out the detailed secondary legislation necessary that officials concluded that the most probable construction of the Act as it now stands omitted the power to provide advice and assistance in all the circumstances where that is presently available.
The fault was basically a technical one. While we did not spot it, it is right to say that nor did anyone else.
We know the concerns that have been expressed in this House about the setting up of a salaried defence service. We are confident that, in time, it will prove a success and that the fears for it expressed today, quite legitimately, by noble Lords will, in the end, come to nothing.
I repeat that it is not our intention to move to a full scale salaried defence scheme. Initially, we shall establish six offices to see how they work in the context of the criminal justice system in England and Wales. That is to be compared with the 3,300 independent firms currently in England and Wales.
§ Lord Kingsland
My Lords, I am grateful to the noble Lord for kindly giving way. The noble Lord mentioned the intention of the Government to establish a number of salaried criminal defence service offices in particular locations in England and Wales. Is he in a position at this stage to tell us whether in his opinion those will be locations where the provision of equivalent services by the private practising sector is inadequate?
§ Lord Bach
My Lords, I am not in a position to be able to give that information to the noble Lord. The commission has appointed a team of researchers headed by Professor Lee Bridges, director of the Legal Research Institute at the University of Warwick. The LSC is in the process of agreeing the research programme with Professor Bridges and his team and identifying the cities and towns in which to establish the first salaried defence service offices.
The commission is also in the process of recruiting professional lawyer heads for each salaried service. As I have stated, in our view the important role that the service will play will be very small compared to that which independent solicitors and barristers will continue to play in our criminal justice system.
We have had these debates before. Nothing has altered. It is incumbent upon the House to give the scheme a chance. Let us see how it works. If it does not work well, no doubt that will be seen pretty quickly. If it works well, perhaps there is a future for it.
§ Lord Kingsland
My Lords, I am grateful to the noble Lord the Minister for giving way again. I think that he will have seen the direction of my previous question to him. The point is that before the locations are identified as sites which merit a salaried defence 850 service, the Government should undertake an exercise which identifies them as locations which require salaried defenders because of the scarcity of private practising lawyers.
§ Lord Bach
My Lords, I am unable to tell the noble Lord that that will be the basis upon which we decide where the pilot schemes will be tried. I can say that a number will be in urban areas. As I understand it, there will also be at least one in a semi-rural or rural area in which concern has been expressed in the past over whether such a scheme would work well. I am unable to give the noble Lord the answer that he requires. However, he can be assured that we will be careful about where we set up the pilot schemes. We want them to have every chance of success. We certainly do not want them to compete unfairly with independent solicitors.
That is all I intend to say today about the salaried defence service. Perhaps I may say again that I am grateful for the attitude taken both inside and outside the House by both noble Lords who have spoken.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.