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

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Mr. Burnett: I raised that matter in a debate the other day—I do not remember what we were debating. I do not know if the hon. and learned Gentlemen remembers that debate, but I think that the Minister made some concession in that regard. Nevertheless, I look forward to hearing his answer.

Mr. Garnier: I regret to say that I do not remember that, but no doubt the Minister will deal with the hon. Gentleman's point in a moment. None the less, I thank the hon. Gentleman for his intervention.

My next point may be footling: it is simply a matter of how one sets out the rules. Paragraph 12 ``Public Interest Disclosure'' contains sub-paragraphs 12.1(a), (b), (c) and (d). Sub-paragraph (d) reads:

    ``is otherwise inconsistent with this Code or the Commission's Staff Code of Conduct''.

May I suggest that the rest of the paragraph from

    ``he or she shall bring this to the attention ...''

should be dropped down and indented so that it does not look as though it forms part of subparagraph (d). That is a somewhat pedantic point, but it would add to the clarity of the code.

I have nothing to say about the Criminal Defence Service (Representation Order Appeals) Regulations 2001. All that I would say about the Criminal Defence Service (Choice in Very High Cost Cases) Regulations 2001 is that its English is wholly impenetrable and its explanatory note does not make it any clearer. The Lord Chancellor's Department, or those who draft such instruments, may in future give that some thought.

4.44 pm

Mr. John Burnett (Torridge and West Devon): I have just two points to make about the statutory instruments. The Minister mentioned that in high cost cases a new representative may be engaged for one of two reasons: because the solicitor cannot agree on remuneration; or because the Legal Services Commission believe that the firm in question does not have the appropriate expertise.

In the latter case, will there be any right of appeal and who will have the final say? In referring to the representation order appeals regulations, the Minister said that the right of appeal is a right to appeal in writing. Will he confirm who is to adjudicate that appeal, and whether there is any further appeal or whether an individual would have the right to an oral hearing?

The last item was the code of conduct. We have discussed the salaried defender system many times, and I have often put on record my party's misgivings about it. We have our views but, like the hon. and learned Member for Harborough, I shall not detain the Committee by reiterating them. We debated the matter recently, and the words of comfort that the Minister gave me on that occasion was that he could not foresee circumstances in which the salaried defenders would come under the aegis of the same Department of State as the Crown Prosecution Service. We spoke a little about the Scottish pilot scheme, which the Minister said had been successful and not significantly over budget.

Will the Minister put my mind—and that of the hon. and learned Member for Harborough—at rest about irrevocable choice? The Committee that considered the Access to Justice Act 1999 recognised the problems that could arise if an individual were to make a choice of advocate or defender when arrested at 3 am or 4 am, perhaps when drunk and disorderly. Opposition Members thought that his choice should not be irrevocable, and that he should have an opportunity to change his mind. I recall that the Minister assured us—I shall be grateful to receive that assurance again—that he is satisfied that there is sufficient geographic spread of franchised and contracted private practitioners to meet the demand for defenders.

I raise a small drafting point on the definition of ``employee'' in the code of conduct. Will the head of the salaried service, who is defined in paragraph 1.2, ever be an officeholder, or will he or she always be an employee? I do not raise this to be pedantic, but because that person will be extremely important. Much of the success of the salaried defender system depends on that person's calibre and independence. Who will appoint that person, and what will be the duration of his or her contract—whether it is a contract of employment, a contract of service or a contract for services? I should like to know about the qualifications of that person, who I presume is likely to be a member of the Bar or a solicitor of long standing.

I refer the Minister to the definition of a professional body as

    ``the Law Society, the General Council of the Bar, the Institute of Legal Executives or any other body authorised under the Courts and Legal Services Act 1990 as a body that can grant rights of audience or rights to conduct litigation.''

I believe that the Inland Revenue, Customs and Excise and other prosecution agencies that work for the state are not likely to be involved as defenders. I cannot think of any circumstances in which they would be. However, I am interested in other bodies that are now involved.

Mr. Stephen O'Brien (Eddisbury): I declare an interest as a fellow and parliamentary adviser of the Institute of Chartered Secretaries and Administrators. It is not uncommon for people who have charge of relevant matters in local government to regard the institute as their professional body. Further exploration may be needed of the analogy that the hon. Gentleman has been pursuing, but he is making a fair point, and a further definition of the bodies concerned is needed, possibly by way of schedule.

Mr. Burnett: I am grateful to the hon. Member for Eddisbury for helping me on this point. I know that there is a sweep-up provision, concerning

    ``any other body authorised under the Courts and Legal Services Act 1990 as a body that can grant rights of audience or rights to conduct litigation.''

However, it would be interesting to know what other bodies already have or can grant those rights of audience.

I have a general plea to make the Minister. I have several times bellyached to his colleague the Solicitor-General that, although the Crown Prosecution Service Inspectorate Bill is good as far as it goes—I know that this is not entirely germane to the debate—it would be in the public interest if other state prosecution agencies were to be subject to rigorous inspection and monitoring. No doubt one day the legislation will be amended to provide for that.

I have discussed the professional head of the salaried service—an important person about whom I hope to hear words of comfort from the Minister. If the salaried defender service is to be successful, much will depend on the calibre and independence of the individual appointed.

I reiterate our belief that there is a conflict of interest at the heart of a salaried defender system. Not only that, but the public perceive state-run courts with the state as prosecutor and the state as defender as most unsatisfactory.

4.53 pm

Mr. Lock: This has been a short, constructive debate.

The hon. and learned Member for Harborough asked how the code would ensure that individuals who were not professionally bound to another body would respect their duty of timeliness in dealing with matters in court. It is precisely those lawers whose primary duty is to pursue cases in court who are responsible to a professional body. The duty to co-operate and work with employees and the legal profession can be assumed. Timeliness can be assumed from the combination of the duties that are owed to clients and the relationship with the legal profession, as set out in paragraph 9 of the code. Essentially, timeliness is about getting on with other parts of the legal profession and ensuring that the interests of the client are represented. The main focus will be on lawyers in the CDS, not on administrative back-up staff.

The hon. Member for Torridge and West Devon (Mr. Burnett) mentioned pipe-smoking defendants. In all my time in criminal defence work, I have never come across a pipe-smoking defendant, but I am sure that their rights must be respected. I assure him that we will reflect on that. As the code works in practice, we will learn from experience and it will be amended.

We have issued a consultation paper on the change of solicitor provisions, and we have not yet published our conclusions. That consultation paper will deal with the position of someone who gets a duty solicitor or another solicitor in the dead of night. It will consider whether they should have a cooling-off period and, where circumstances of change arise, whether a public defender or a firm of solicitors should be involved. We are grateful for the responses that we have received so far.

The Legal Services Commission maintains a panel of firms that are considered to have the necessary expertise to run high-cost cases. Membership of that panel is an administrative matter to be determined by the commission. If a firm applied and thought that it had been improperly rejected, it could challenge the commission in the courts by judicial review.

The hon. and learned Member for Harborough is right about the lay-out of paragraph 12, and I have already marked my copy in the way that he suggested.

On the choice of representative in the appeal, it is the client who does the appealing. The application is made in writing to the funding committee of the commission. That is the right balance. We see no need for an oral appeal. Any challenge to that decision would be by judicial review.

The current professional head of service is Tony Edwards, who is a member of the commission and a very experienced criminal solicitor. He is an officeholder, because he is not an employee of the commission, but a non-executive member of the board. He has as much experience as anyone could possibly ask for in dealing with criminal defence work, and we have enormous confidence in him. In future, if the public defence service expands, there may be a position for an employed head of service, who will then be an employee of the commission.

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Prepared 14 March 2001