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Lord Ackner: My Lords, it will be apparent to your Lordships that, following the chiding I received from my noble and learned friend the Lord Chancellor for having spent too long winning the amendment on the fourth day of Committee, I had descended into a deep sulk. But I feel it is only right to acknowledge my gratitude to my noble and learned friend for having done what he undertook to do in producing this new clause.

I, too, would like to know the answer to the question of enforcement because that was one of the problems which was raised in Committee. But, subject to that inquiry, I repeat my gratitude to my noble and learned friend for carrying out what he undertook to do.

Viscount Colville of Culross: My Lords, I wish to say a few words because the point about enforcement is something that I envisage coming before the courts themselves. It must be of great importance that someone like myself who tries crime all the time should know

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whom to approach if there should be a breach of the code. There is a duty to the court, but what is the court to do about it? I therefore think that the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Ackner, have raised a point that should exercise the mind of the noble and learned Lord the Lord Chancellor as indeed it will exercise the minds of the judiciary.

6 p.m.

Lord Borrie: My Lords, I want to raise one small question in the light of the point made by my noble and learned friend the Lord Chancellor that this code, which I am delighted to see following the initiative of the noble and learned Lord, Lord Ackner, will apply to those employed by the commission whereas independent practitioners will be governed by their own professional requirements--presumably the Bar Council and the Law Society.

Is it the understanding of my noble and learned friend that the codes by which the independent practitioners will be governed are "similar" to the statutory code or "identical" with it? If they are only "similar", is not there a risk of discrepancy in treatment between the independent practitioner and he or she who is employed by the commission? For example, in the same case there may be a Queen's Counsel who is an independent practitioner working with a junior who is a member of the criminal defence service.

The Lord Chancellor: My Lords, I am grateful to the noble and learned Lord, Lord Ackner, for welcoming this amendment; after all, it was his idea, though I strongly supported it in principle.

I am asked about who it will bind. Primarily, the duties are duties imposed on employees of the commission--salaried lawyers employed by the commission. The new clause provides,

    "The Commission shall prepare a code of conduct to be observed by employees".
I would envisage that compliance with the code would become a term of the contract of employment and would be enforceable in the same way as an employer may enforce any term of a contract of employment.

Some noble Lords drew attention to the fact that a breach of the code might, at the same time, be a breach of the professional rules either of solicitors or barristers depending on whether the employee in question was a solicitor or barrister. Enforceability would be through the contract of employment and very often it might be the case that a breach of the code would amount also to a breach of the individual's professional code.

Today, if a judge feels strongly that there has been some ethical lapse on the part of counsel before him, he is free to draw it to the attention of the head of chambers or the disciplinary body of an Inn of Court for it to consider whether or not to take the initiative. Similarly, a court would be free to communicate its concern or displeasure to the head of the criminal defence service and, likewise, could complain to the Inn of Court or the Law Society according to whether it was a barrister or a solicitor. Those are the best answers that I can give to those questions as at present advised.

On Question, amendment agreed to.

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Clause 15 [Regulations about payments to representatives]:

The Lord Chancellor moved Amendment No. 123:

Leave out Clause 15.

On Question, amendment agreed to.

Clause 16 [Terms of provision of funded services]:

The Lord Chancellor moved Amendment No. 124:

Page 11, line 26, after ("made") insert ("and what that person or body is to do with them").

The noble and learned Lord said: My Lords, I hope I can deal briefly with what are technical amendments, relating to moneys received as a result of an order made under Clause 16(2) that an individual for whom services are funded by the Commission as part of the criminal defence service is to pay some or all of the costs of representation.

Clause 17(4) states that any amount received by the commission pursuant to an order under Section 16(2) shall be paid into the Consolidated Fund, which is the Government's principal bank account at the Bank of England.

Amendment No. 124 is necessary so that any persons or bodies other than the commission through which these sums are handled--for example, magistrates' courts or debt collection agencies--can be directed what to do with sums collected pursuant of an order. Regulations will ensure that the sums arrive in the Consolidated Fund in an efficient way, subject to proper financial controls. This might not involve payment being routed through the commission. Amendment No. 125 deletes Clause 17(4) which becomes otiose. I beg to move.

On Question, amendment agreed to.

Clause 17 [Funding]:

The Lord Chancellor moved Amendment No. 125:

Page 11, line 38, leave out subsection (4).

On Question, amendment agreed to.

Clause 18 [Foreign law]:

The Lord Chancellor moved Amendment No. 126:

Page 11, line 43, at end insert ("unless any such law is relevant for determining any issue relating to the law of England and Wales.").

The noble and learned Lord said: My Lords, in moving Amendment No. 126 I shall speak also to Amendments Nos. 127 and 128, all of which are amendments to Clause 18. The first is designed to ensure that the wording of Clause 18 does not prevent the legal services commission from providing help under both the community legal service and the criminal defence service where there are factual issues of foreign law which arise in proceedings in England and Wales.

In Committee we were fairly inundated with examples of situations where issues of foreign law might arise, and I am grateful to your Lordships for bringing those to our attention. I believe that this amendment provides for those and other similar situations, where we would wish to provide help.

The other two amendments refer to the process by which the Lord Chancellor may make exceptions to the general provisions of this clause. Clause 18 provides, in

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general, that the legal services commission is restricted to funding services under the community legal service or criminal defence service only in relation to matters of domestic law. However, the commission should be able to fund services in exceptional circumstances where it is necessary to fulfil the United Kingdom's international obligations. For example, the REMO (Reciprocal Enforcement of Maintenance Orders) agreement obliges us to provide legal aid for the enforcement in this country of child maintenance orders made in foreign courts under foreign law. Whereas previously the clause allowed the Lord Chancellor to make exceptions by direction, these amendments provide that exceptions shall be made by order subject to the negative approval procedure. That mirrors the arrangements under the existing Act.

I have always been in agreement with your Lordships on the purpose of this clause; I hope that we can now agree on its wording. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 127 and 128:

Page 12, line 3, leave out ("directions given by him under section 4") and insert ("order").
Page 12, line 6, leave out ("by the directions") and insert ("in the order").

The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 127 and 128 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 19 [Restriction of disclosure of information]:

The Lord Chancellor moved Amendment No. 129:

Page 12, line 31, leave out ("apply to") and insert ("limit the disclosure of").

The noble and learned Lord said: My Lords, I think I can be fairly brief in speaking to these amendments, which I promised to bring forward in response to an amendment moved by the noble Lord, Lord Goodhart, in Committee which he kindly agreed to withdraw in the light of my undertaking to reconsider the drafting of Clause 19.

The noble Lord was concerned that the present wording of Clause 19(3)(c), taken with the provisions of Clause 19(1), appeared to suggest that information which was otherwise subject to client/lawyer privilege could be disclosed or be required to be disclosed. As I explained in response to the noble Lord, that was certainly not the intention of the provision. Its purpose was simply to ensure that information given by the client to his lawyer was not subject to the provisions of Clause 19 at all and, therefore, that disclosure could not render the lawyer liable to prosecution under Clause 19(5). It was not intended in any way to breach the privilege from disclosure of information given to a lawyer by his client. I agreed to ask the draftsman to consider the provisions further in order to make their intent clearer.

The group of amendments standing in my name seeks to set out more plainly the intent of the provisions contained in subsection (3). The opening words of

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subsection (3) of Clause 19 are amended to make clear that the provisions of Clause 19(1) do not limit disclosure of information of the kind described in the subsection. Sub-paragraph (c) is removed from subsection (3). A new section is added at the end of the clause which more plainly sets out that information provided to a lawyer by a client receiving funded services as part of either the community legal service or the Criminal Defence Service is not subject to the provisions of Clause 19. This information, of course, remains subject to privilege and the provisions of Clause 21(1) already ensure that the privilege is not affected by reason of the client being in receipt of funded services.

I hope that with these amendments I have met the concerns of the noble Lord, Lord Goodhart. I beg to move.

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