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The Lord Chancellor: Discussion in the Committee has concentrated on Clause 14(6)(c). Clause 14(5) provides that:

I omit the following words.

Members of the Committee have called attention to subsection (6):

    "Regulations may provide that in prescribed circumstances--

    (a) the right conferred by subsection (5) is not to apply in cases of prescribed descriptions".
The concern expressed by some Members of the Committee is within the ambit of regulations that might be made pursuant to subsection (6)(a). Paragraph (c) provides that regulations may provide that in prescribed circumstances:

    "that right is to select only a representative of a prescribed description".

I begin by an explanation of the latter provision and shall then revert to the concerns that have been expressed.

The intent of subsection (6)(c) is to allow choice to be restricted to a lawyer with a contract. Contracting will enable us to protect the interests of individuals involved in criminal investigations and proceedings and to ensure that they have fair treatment by providing quality assured services. That is the main purpose of subsection (6)(c). It is intended gradually to extend the provision of representation under quality-assured contractors to cover almost all circumstances. So there will be choice, but the choice will be confined to quality-assured suppliers of advice, assistance and representation. For example, someone who needs advice at the police station will be able to choose any solicitor with a contract with the criminal defence service or call on the duty solicitor. The solicitor chosen at that stage will be expected to continue to represent the client throughout the lifetime of the case, unless there is a compelling reason to change. That is the reason for subsection (6)(e).

Subsection (6)(c) is also necessary in order to achieve quality-assured representation, for example in very expensive cases, where special skills, experience and technology are often needed, especially in complex fraud cases. In those, the defendant's choice might be restricted to those on a specialist panel who had demonstrated the necessary competence. In my view, it

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is better to have such a restricted choice of approved specialists than a wider choice from among non-approved specialists.

The principal concern that has been expressed was heralded in earlier discussions by the noble Viscount, Lord Bledisloe. He first focused upon the significance, or potential significance, of Clause 14(6)(c): that regulations might provide and prescribe circumstances in which the right of selection should be a right to select a representative only of a prescribed description. That was intended to limit choice to quality-assured contractors or to salaried defence lawyers. It was not intended to confer a power to restrict choice, for example, to salaried defenders only.

Having listened to the debate, I take the view that we ought to revisit the expression of subsection (6)(c), to ensure that what I have stated as being our intention is the limited power contained in the regulations referred to. If, on the face of the statute, we go to a provision that makes it plain that the choice lies between quality-assured contractors and what is called the "independent profession" or salaried lawyers, it would meet many of the concerns expressed earlier by the noble Lord, Lord Hutchinson of Lullington. When exceptionally it may be necessary to assign a salaried representative to the defendant--that is to say, to allow no choice, which would be in only very limited and special circumstances--I concede that that outcome could be achieved only by way of regulations under Clause 14(6)(a). The Committee will be aware that under Clause 14(7) regulations made under subsection (6)(a) would be subject to the affirmative procedure. But in the light of discussions I believe that these provisions should be revisited in the manner that I have indicated and I undertake to do so. On that basis I invite the noble and learned Lord to withdraw the amendment.

Lord Renton: Before the noble and learned Lord sits down, is he suggesting that all of subsection (6) should be reconsidered or only certain paragraphs to which he refers? I believe that paragraph (e) has real dangers in it. Suppose that the person first chosen is found to be the brother of the victim of the alleged crime. The accused would have a reason to seek to change his representative and that should be allowed.

The Lord Chancellor: I have said that I shall consider the interaction of Clause 14(6)(a), (c) and 14(7), but I am content in response to the noble Lord, Lord Renton, to think again about Clause 14(6)(e).

Baroness Kennedy of The Shaws: I rise again because my noble and learned friend has not answered my question, which was not intended as a joke. There is a pilot scheme currently in Scotland which does not allow for choice. I wondered whether or not the pilot schemes intended to come into being following the enactment of this Bill would allow for a choice.

The Lord Chancellor: I apologise to my noble friend for not responding to her observations about the astrologically-based pilot in Scotland. I am sure that there is a rational explanation for it as that is going on

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north of the Border. No doubt it is to ensure that there is a random selection of individuals to participate in the pilot. But I confess to my noble friend that I am not fully informed of the details of these astrological excursions north of the Border. I shall inform myself and write to my noble friend.

Lord Donaldson of Lymington: Perhaps I may invite the noble and learned Lord the Lord Chancellor to look also at subsection (6)(b). I raise this point because normally it is possible to arrive at a particular destination either by excluding all other destinations or specifying that destination. I believe that (b) and (c) are two sides of the same coin.

The Lord Chancellor: I see the force of the observation of the noble and learned Lord. I shall consider that matter also.

Lord Ackner: As I understand it, by process of elimination my noble and learned friend is prepared to consider subsection (6) in relation to all of the subsections in the clause.

The Lord Chancellor: I said nothing about (d) but if that will make the noble and learned Lord more content I shall look also at that provision.

Lord Ackner: My cup runneth over. On that basis I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 171 to 178 not moved.]

Clause 14 agreed to.

Schedule 3 [Criminal Defence Service: right to representation]:

Lord Ackner moved Amendment No. 179:

Page 55, line 27, at end insert (", including bail proceedings").

The noble and learned Lord said: Amendment No. 179 and the two following amendments are minor matters and I shall spend virtually no time upon them. Amendment No. 179 seeks to insert at line 27 on page 55 the words "including bail proceedings". That speaks for itself. Amendment No. 180 is essentially a probing amendment to discover on exactly what matter this is meant to focus. Amendment No. 181 is essentially a drafting amendment. I beg to move Amendment No. 179.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): Under paragraph 2(1) of Schedule 3 a right to representation for the purposes of criminal proceedings includes a right to representation for the purposes of any proceedings preliminary or incidental to those proceedings. In my view that would include bail proceedings and interlocutory hearings. Strictly the amendment is unnecessary, but the noble and learned Lord believes that a restrictive interpretation excluding bail proceedings is possible. There is no dispute between us as to what we seek to achieve, although with the greatest respect I doubt the construction that he puts upon it. He knows that under the tutelage of the noble and learned Lord, Lord Simon of Glaisdale, I am an enemy of surplusage.

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Nevertheless, in the giving age that now exists in relation to this Bill, and if it makes the noble and learned Lord happier, on behalf of the Lord Chancellor I am content to accept his amendment.

On Question, amendment agreed to.

The Deputy Chairman of Committees: Is the noble and learned Lord moving Amendment No. 180?

Lord Ackner: I have moved the amendment.

Lord Renton: The noble and learned Lord must formally move the amendment.

Lord Ackner: I have moved the amendment already.

The Lord Chancellor: Perhaps I may try to assist. Is the Committee not concerned now with grouping No. 69?

The Deputy Chairman of Committees: The Committee is now considering Amendment No. 180 in Schedule 3.

The Lord Chancellor: I do not believe that the amendment has been formally moved.

Lord Ackner moved Amendment No. 180:

Page 56, leave out lines 3 to 21.

The noble and learned Lord said: I beg to move Amendment No. 180. I have moved the amendment three times. I shall move it a fourth time if the Committee wishes.

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