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Baroness Blatch: My Lords, my understanding has always been that the commission has the powers to investigate. I said in my response to the amendment that the Government intend that the commission should have its own unit of experienced investigators to advise it and also, as the noble Lord suggested, to play a part in the direction of investigations.

There may be some difference between us on investigating and, for example, using the powers of the police for powers of entry. The commission can prescribe the investigation, oversee it, specify it and supervise it as closely as possible. Its members can physically accompany the police if powers of entry are required, and they can go in and witness and observe the police if they wish the police to conduct the questioning. There may be a distinction in the noble Lord's mind about using the powers of the police in order to carry out the investigation. I understand that an investigation can be undertaken by the commission.

The Government's position has always been that the commission can employ investigative staff and can engage investigative expertise. The commission can do that as it thinks fit. If it decides to do things in that way, it will not need to use its Clause 18 powers. I hope that that satisfies the noble Lord. It may be that I have not articulated that as well as I might have done; but, both in Committee and on Second Reading, I tried to say that that is the case.

Lord McIntosh of Haringey: My Lords, on the face of it, that seems to be extraordinarily helpful. It seems to answer the points which were raised on Second Reading and in Committee in a way that has not been done before. There may be some sub-text which we are not getting to. It may be that there is a difference between the power to investigate, as the Minister puts it, and the power to conduct investigations; I do not know. However, the Minister and I can discuss those matters between now and Third Reading.

On the basis of what the Minister says, which I believe to be a very significant advance in the powers, independence and integrity of the investigation, I shall not press this amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Clause 20 [Other powers]:

[Amendment No. 9 not moved.]

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Baroness Mallalieu moved Amendment No. 10:


After Clause 21, insert the following new clause:

Postal application for legal advice and assistance

(". The Secretary of State shall make regulations to amend the Legal Advice and Assistance Regulations 1989 to permit a prisoner to make a postal application for legal advice and assistance under regulation 9 so that representations to the Commission may be made on his behalf.").

The noble Baroness said: My Lords, as the noble Baroness may remember, in Committee I moved a rather wider amendment in relation to the provision of legal advice and assistance for prisoners making representations to the commission. I withdrew that amendment when the noble Baroness indicated her willingness to re-examine the present provisions in the light of the difficulties which I drew to her attention in connection with the operation of the green form scheme.

I am grateful to the Minister for the attention that she has given to the matter, and in particular for the letter which she sent me in the interval between Committee stage and today in which she gave me some considerable assurances on a number of aspects and in particular on tackling the delays in the granting of extensions of legal aid and attempts to promote consistency of decision among different area officers.

Unfortunately, the detailed submissions which I sent to her, which were prepared in part by the organisation, Justice, crossed in the post with her letter. In particular, they related to the need for changes to Regulation 9 to permit a postal application for legal advice and assistance. Therefore, I return to that one aspect of the matter on Amendment No. 10 in the hope that the Minister will give it further consideration today.

The present position is that under the green form scheme, legal aid is available for those who wish to petition the Home Secretary. On a number of occasions at earlier stages of the Bill, the noble Baroness said that she believes that that provision will be adequate to allow prisoners to prepare applications to go to the proposed new review commission.

There is a difficulty because under Regulation 9 of the legal advice and assistance regulations, the application form for green form help must, as a general rule, be signed by the client in the presence of a solicitor. That illustrates the difficulties which begin to arise because prisoners are scattered; the green form scheme allows two hours of assistance from the solicitor; to see the prisoner may involve a journey which takes a considerably greater time than that; and the solicitor is not paid to travel to see the prisoner, he is paid only after the form has been signed; nor is he paid for any preparation that he does before the form is signed, making it impractical for him to prepare the case and often to give truly meaningful advice when he first sees his proposed client.

There are two exceptions to the rule that the form has to be signed in the presence of the solicitor with the client there. The first is that a franchised solicitor is allowed to make those arrangements by post. Franchised solicitors may claim for telephone advice, for the cost of the outward journey, although somewhat curiously,

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as I understand it, not for their own travelling time. But importantly—and most important in that context—they may accept postal forms.

The other exception is that a prisoner may authorise somebody else on his behalf to go to the solicitor's office and sign the form for him. That sounds well and good but if no changes are made to the present regulations, that in itself creates difficulties for a number of prisoners.

Perhaps I may indicate shortly some of those problems. Not all prisoners have somebody on whom they can call to act as their representative to visit the solicitor. Even if they have someone, that individual must be in a position to provide the solicitor with accurate and detailed information about the prisoner's finances. That person must be prepared to travel at his own expense to the solicitor. If he needs to see the proposed applicant to obtain the financial details, he may also have to travel at his own expense to see him in prison, wherever that may be. For many prisoners, it will simply not be practical to arrange for somebody else to do that.

Not all solicitors are franchised and the prisoner who wishes to be represented by a non-franchised solicitor, who perhaps conducted the trial for him and therefore is the most appropriate and ultimately most helpful person to the commission to give him advice, will be at a distinct disadvantage.

Such a prisoner represented by a non-franchised solicitor will face considerable difficulties. Perhaps I may outline three. First, the legal aid fund will not pay a non-franchised solicitor travelling expenses to the prison in order to get the form signed. The solicitor must be willing to pay for himself. When one is dealing with an organisation like Justice, which receives something in the order of 600 applications per year, it is not feasible in view of the fact that travelling to many prisons will occupy the time of a solicitor for something in the order of half a day. It is not feasible when, as often happens, long-term prisoners are moved frequently.

Secondly, even the costs of the return journey from seeing the prisoner may not be fully covered because some area officers set maximum limits on travelling expenses or insist that local solicitors act. Again, prisoners are moved and continuity is disrupted.

It may be asked why a local solicitor cannot act as agent and sign the form or even take the basic instructions and then pass them onto a specialist organisation with specialist lawyers such as Justice. But local solicitors will not visit prisons as agents to get the forms signed unless they are assured that they will be paid. An organisation like Justice is simply not in a position to pay solicitors privately. Of course, local solicitors expect to know that their costs and expenses prior to the signing of the form will be recoverable and they are not so recoverable under the present system.

The present regulations could be varied very simply and easily to allow postal applications from a prisoner in an appropriate case, even when the solicitor whom he has chosen is not franchised. The results would have three very beneficial effects. First, a solicitor could look

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at the case and prepare it before he sees the client. He could perhaps knock on the head a worthless application which should never waste the time of the commission.

Secondly, the prisoner would not be reliant on having a solicitor who is sufficiently generous and charitable to pay his expenses out of his own pocket. Thirdly—and I hope that this will commend itself to the Minister—it will save the Legal Aid Board money because what on earth is the point of requiring a solicitor to travel to a prison to get a form signed? It seems to me that in this day and age of technology, the use of a 25 pence stamp or even second-class postage could save a great deal of money in appropriate cases.

Having pin-pointed in rather more detail one of a number of matters which I raised in Committee, I hope that on this occasion the Minister will be able to say that she can either make provision for the legal advice and assistance regulations to be amended to allow that small but important change or, at the very least, to say that further guidance will be given to local boards to enable that to happen. I beg to move.


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