§ 3.6 p.m.
§ Report received.
§ Clause 1 [Extent of duty to fund advice and assistance]
The Parliamentary Secretary, Lord Chancellor's Department (Lord Bach) moved Amendment No. 1:
Page 1, leave out lines 5 to 7 and insert
("(1) Subsection (1) of section 13 of the Access to Justice Act 1999 (duty of Legal Services Commission to fund advice and assistance as part of Criminal Defence Service) shall be treated as having been enacted with the substitution of the following for paragraph (b) and the words after it—").
§ The noble Lord said: In moving this amendment, for the convenience of the House, perhaps I may speak also to Amendments Nos. 2 and 3. All three amendments have been tabled in my name. I tabled and withdrew these amendments at Committee stage in order to give your Lordships a reasonable length of time in which to consider the changes that I propose to make. I hope that during the two-week period that has since elapsed the House has had time to consider the amendments proposed.
§ The effect of the amendments, taken together, is to allow the Bill, on enactment, to have retrospective effect. Amendment No. 1 provides that the Access to Justice Act will be read as if it had always been amended by this Bill. Amendment No. 2 provides that secondary legislation made under the powers in Section 13(1) of the Access to Justice Act may also have retrospective effect. Amendment No. 3 changes the commencement date of the Bill—there is no longer any need for the Bill to commence on 2nd April and it will be commenced on the day on which it receives Royal Assent.
§ I shall explain why the Bill needs to have retrospective effect. At Second Reading, I explained that it was essential that the Bill received Royal Assent in time for its provisions to be in force before the criminal defence service is introduced on 2nd April 2001. In practice, this meant that we needed Royal Assent by 9th March. This would allow time to make the secondary legislation using the power in the amended Section 13 of the Access to Justice Act, which is necessary to maintain the current levels of legal assistance available to those involved in criminal investigations and proceedings.
§ When the Bill received its Second Reading on 21st December, I was grateful for the reception it was given. Since then I have received letters from all of the main legal groups confirming that they support the 940 introduction of the Bill. The Committee stage took place on 22nd January. No Minister could ever hope for swifter progress! However, I am concerned that we may not be able to guarantee Royal Assent in time. This would result in a lacuna in which the powers under the unamended Section 13 of the Access to Justice Act may be insufficient to maintain the current levels of legal assistance.
§ No one knows the date of the next general election; however, the possibility of an early election, combined with an early Budget, could put the parliamentary timetable under even greater pressure than is usually the case. If that happened, it is possible that business managers may be unable, among competing priorities for parliamentary time, to give the time required for this Bill in order for it to receive Royal Assent before 9th March.
§ It is for this reason that I feel that the Bill should be amended so as to have retrospective effect. Any secondary legislation will also be capable of having retrospective effect.
§ I am aware—and, indeed, I agree—that in general it is important that legislation should not have retrospective effect; people have a right to know where they stand under the law. However, in this instance the retrospective nature of the Bill will simply enable the status quo to be preserved. By making this amendment, the right that currently exists, for example, to consult a duty solicitor, or to receive legal advice and assistance after as well as before being the subject of a criminal charge, will be maintained. The critical point is that no one will be adversely affected by the retrospective nature of the Bill, but without it significant elements of our legal aid system could cease to be available.
§ Of course, I am still hopeful that the Bill will complete its progress in good time and that the introduction of retrospectivity will prove to have been over-cautious. If this proves to be the case, no harm will have been done. But, by taking this action, if it turns out that the Commons business managers are unable to accommodate the same swift passage which this House has provided, there will be no possibility of gaps in our provision of important legal support to those facing criminal charges.
§ I hope that in those circumstances the House will support the amendments. I beg to move.
My Lords, it is a fundamental principle of our legislation that it should not be retrospective. In this case, however, I think that the Minister has put forward valid and strong reasons for allowing this to happen. Another factor he did not mention but which is relevant in my opinion is that the retrospectivity will be for a very short time. But, having said that, I hope that it will not be regarded as an easy precedent to be followed on other occasions.
§ Lord Goodhart
My Lords, I am happy with the Bill which closes what was an unintended lacuna in the Act of 1999. I am equally happy with the retrospective effect here which, as the noble Lord, Lord Renton, 941 pointed out, is for a short time, if, indeed it can be described as retrospective at all because, of course, it is not in any event retrospective to an earlier date than 2nd April when the criminal defence service will come into operation. It has been announced well in advance of that. I am interested in the reason put forward for the amendments which imply that we might be into the pre-dissolution whirlwind as early as 9th March which, in turn, implies a possible election date earlier than 3rd May. However, I shall leave the Minister to give such comment on that as he thinks fit.
§ Lord Ackner
My Lords, I am delighted to observe that in one very small and limited aspect of access to justice the Government see virtues in the status quo.
§ Lord Kingsland
My Lords, I wholly endorse the observations made by my noble friend Lord Renton and the noble Lord, Lord Goodhart. In those circumstances I have nothing to add.
§ Lord Bach
My Lords, I am grateful to those noble Lords who have spoken, in particular to the noble Lord, Lord Renton, who spoke from his great experience. We certainly do not see this as an easy precedent. It would be quite wrong to do so. The noble Lord, Lord Goodhart, tempts me but I advise him not to read anything very much into what I had to say.
§ On Question, amendment agreed to.
Lord Bach moved Amendment No. 2:
Page 1, line 15, at end insert—
("(2) Regulations under subsection (1) of section 13 (as amended above) may include provision treating them as having come into force at the same time as that subsection.").
§ The noble Lord said: My Lords, I have effectively spoken to Amendments Nos. 2 and 3. I beg to move.
§ On Question, amendment agreed to.
§ Clause 2 [Short title and commencement]:
Lord Bach moved Amendment No. 3:
Page 1, line 18, leave out subsection (2).
§ On Question, amendment agreed to.