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Delegated Legislation Committee Debates

Draft Criminal Defence Service Regulations 2001 and Code of Conduct for Employees of the Legal Services Commission Who Provide Services as Part of the Criminal Defence Service

Second Standing Committee on Delegated Legislation

Wednesday 14 March 2001

[Sir David Madel in the Chair]

Criminal Defence Service Appeals

4.30 pm

The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I beg to move,

    That the Committee has considered the draft Criminal Defence Service (Choice in Very High Cost Cases) Regulations 2001.

The Chairman: With this it will be convenient to consider the draft Criminal Defence Service (Representation Order Appeals) Regulations 2001 and the ``code of conduct for employees of the Legal Services Commission who provide services as part of the criminal defence service''.

Mr. Lock: I welcome you to the Chair, Sir David.

The Criminal Defence Service (Choice in Very High Cost Cases) Regulations are made under section 15(5) of the Access to Justice Act 1999. They apply to criminal cases in which a trial is likely to last 25 days or longer or in which the defence costs are likely to amount to £150,000 or more. They provide for the selection of a new representative—usually a firm of solicitors—when right to representation has been granted in a very high cost case and the Legal Services Commission or the current solicitors firm are not able to agree a contract for the work.

The Committee will note that, under regulation 3(2)(b), the new representation order is to be made in accordance with the Criminal Defence Service (General) Regulations. Those regulations have not yet been made because they are reliant for their vires in relation to advocacy assistance on the amendments being made to the Access to Justice Act 1999 by the Criminal Defence Service (Advice and Assistance) Bill. That Bill has the support of all parties, for which I am grateful. It has completed its passage in the other place, and Second Reading and Committee stage in this House. We hope that it will receive Royal Assent before 2 April. The general regulations can therefore be made to come into force at the same time as the regulations that we are debating.

The regulations provide that when a representation order has been granted for a high cost case, and the Legal Services Commission or the current firm of solicitors do not propose to enter into a contract with each another, the commission is no longer required to continue to fund the current solicitors. That will arise in two main types of case. The first is when the solicitors firm is not willing to accept the terms on offer from the commission for remuneration for the work, or indeed any other terms. The second is when the commission considers that the firm in question does not have the skills, experience or organisation to handle the case because of its size or complexity. In those circumstances, the effect of the regulations will be that an individual who has been granted a representation order can choose another firm from among those assessed as qualified to undertake the work.

The Criminal Defence Service (Representation Order Appeals) Regulations require little explanation, save that they safeguard an individual's rights by providing for an appeal process against a refusal to grant a representation order. They make provision for appeals against all refusals of applications for, and withdrawals of, representation orders. Those appeals, which are made by a renewed application, are to be made to the body that refused the application or withdrew the order, but they will generally go to the next tier up. A refusal by the justices' clerk in a magistrates court to grant a representation order will therefore be dealt with by a district judge on appeal. An appeal against a decision by the Legal Services Commission will be made in writing to the funding review committee. No limit has been put on how many times an individual can renew an application.

The last of the affirmative instruments required for the criminal defence service is the code of conduct. I do not propose to go through the code clause by clause, but I shall be happy to respond to any concerns that hon. Members may have about its wording. Section 16 of the Access to Justice Act 1999 requires the Legal Services Commission to prepare a code of conduct that is to be observed by public defenders employed by the commission, and provides that it shall not come into effect unless a motion to that effect is approved by resolution.

There has been much debate about whether a public defender service would be sufficiently independent from the state to be able to provide effective representation. For those who still think that it would not be, I commend Michael Foot's excellent biography of Aneurin Bevan. The debates about the creation of the public defender service, with their predictions of poor service as staff will be state employees, have almost exact parallels with those surrounding the creation of the national health service. We were told that doctors would be less committed to their patients, would leave operations half completed when the clock struck five, and so on. The predictions of lack of commitment to the client are as unfounded today for professional lawyers working for the public defender service as they were in the 1940s for the NHS, so I hope that we will not cover the same ground again.

Of course, the state pays for the costs of representation for both sides in almost all criminal cases. However, as the Canadian Bar Association commented,

    ``it should be obvious that it is the fact of third-party payment, not the nature or form of that payment, that then creates the potential conflict when the Paymaster is the public purse''.

One of the intentions behind the code is to ensure that the potential conflict created by third-party payment never distorts the lawyer's duty to the client.

The code covers duties to avoid discrimination, duties to protect the interests of the individuals for whom services are provided, duties to avoid conflicts of interest and confidentiality and duties to the court. There are also duties to ensure that employees who are members of a professional body comply with the rules of the body.

By way of example, I draw the attention of the Committee to paragraph 2.2 of the code, which states:

    ``A professional employee shall not put a client under pressure to plead guilty, and in particular shall not advise a client that it is in his or her interests to plead guilty unless satisfied that the prosecution is able to discharge the burden of proof''.

That is the right balance. No one, whether represented by a public defender or a lawyer in private practice, should ever be under undue pressure to plead. Private practice lawyers have a duty to give defendants advice on the merits of the case—which can sometimes be strong and robust—and a public defender should also be able to tender robust advice when that is in the client's best interests. As the code says, however, that should never spill over into the exertion undue pressure.

Mr. John Burnett (Torridge and West Devon): As the Minister will remember from our discussions of such matters in the early stages of the Committee considering the Access to Justice Bill, one of the problems that the hon. and learned Member for Harborough (Mr. Garnier) and I highlighted was the growing practice of plea bargaining in the United States. Is the Minister satisfied that that proclivity will not grow in this country as a result of the introduction of the salaried defender system?

Mr. Lock: The hon. Gentleman makes an important and serious point, as always. I am satisfied that the introduction of the public defender service will have no effect on plea bargaining. I am sure that he is aware that the Attorney-General has recently published new guidelines to assist prosecutors on such matters. The hon. Gentleman need not fear that the Government intend to move towards American-style plea bargaining and fixed tariffs for sentences. Sentences are entirely a matter for the judge, and rightly so.

I refer the hon. Gentleman to paragraph 2.2 of the code, which deals with the balance between robust advice and undue pressure, which a client should not be put under. I hope that he will feel that that part of the code, pitched in that way, will commend itself to the Committee.

The code demonstrates the Government's intention that the highest ethical standards should apply, and be seen to apply, to lawyers employed by the Legal Services Commission. It is most important that the commission should uphold the highest standards of the legal profession. Defendants are entitled to no less. It is certainly no part of our plans to provide a second-rate service through the public defender service. On the contrary, we believe that cases in which public defenders are used will provide a benchmark of quality and cost against which other defence lawyers can be judged.

I want to express the Government's gratitude to those who helped to prepare this version of the code by responding to the consultation paper. I am especially grateful to the Bar Council and the Law Society for their constructive and valuable contributions. I commend all three instruments to the Committee.

4.39 pm

Mr. Edward Garnier (Harborough): I join the Minister in welcoming you to the Committee, Sir David.

I do not think that the overall scheme of the three statutory instruments is controversial.No doubt the Minister expected my usual mantra about the constitutional impropriety of a salaried defender service. He knows what I think about that, and he knows the views of the official Opposition, so I shall not trouble the Committee by repeating them, save to place them once again on the record.

Paragraph 1.1 of the code of conduct headed ``Relationship with other Professional Codes of Conduct'' states:

    ``An employee who is a member of a professional body''—

for example, the Bar Council or the Law Society—

    ``shall comply with the rules of conduct''

of his own professional body. I am grateful to my hon. Friend the Member for Eddisbury (Mr. O'Brien), who is a solicitor, for pointing out that there is no mention of a requirement for employees of the criminal defence service who are not members of a professional body to comply with the professional rules of timeliness in the conduct of their work. As my hon. Friend will know from his practice, or as a Member of Parliament, one of the most often expressed complaints of constituents about the work of solicitors is that they are guilty of not acting with sufficient speed or timeliness. If the Minister tells us that such a provision is hidden in the text, I should be glad to hear that.

Under paragraph 8 of the code ``Duty not to Offer or Accept Payments'',

paragraph 8.1 reads:

    ``Apart from refreshments or cigarettes for the client's immediate consumption in the employee's presence, an employee shall not offer or accept any fee''.

Tobacco is not consumed by clients only in cigarette form, and I wondered whether it might be easier and cause less trouble if instead of reading ``cigarettes'' it read ``tobacco''. Defendants may well be pipe smokers, or, in cases of white collar crime, may even be cigar smokers, who knows. It is a simple matter of substituting a generic term for a particular one, so perhaps that ought to be considered.

We discussed paragraph 10.1 ``Change of Legal Representative'' in detail during the Standing Committee considering the Access to Justice Act 1999. From memory, if a defendant is brought in at the dead of night and provided with or chooses a criminal defence service salaried solicitor or lawyer, he is not entitled to change him. Has the position altered since our discussions of the Bill?


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