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I understand that the Bar Council responded to the noble Lord's department on 22nd February and that it was given no more than three days' notice of having to do so. I have what I understand to be a copy of the comments of the Bar Council before me. I shall quote from the second half of the first paragraph of that document. It states:
I should like to add two comments to what the noble Lord, Lord Thomas of Gresford, has said. May I draw the Minister's attention to paragraph 1 of the code of conduct entitled "The Relationship with other Professional Codes of Conduct"? In paragraph 1.1 we find the following expression:
Perhaps I may ask the Minister what he thinks should happen if it were not possible to make the code of conduct compatible with the professional code of either the Bar or the Law Society. In those circumstances which set of rules would prevail? Would it be the professional rules or the rules laid down in the code of conduct?
My other observations concern remarks made by the noble Lord, Lord Thomas of Gresford, about the definition of professional employee. As the noble Lord rightly pointed out, part of the code applies to employees and part only to professional employees. For example, paragraph 2.1, which concerns the primary duty to the client, applies only to professional employees. In the definition section of the code, a professional employee is,
The noble Lord, Lord Thomas of Gresford, pointed out that on the face of it the interpretation of this definition is ambiguous because the expression "or otherwise" might apply either to other professionally qualified individuals or to non-professionally qualified individuals.
In either case, that expression will not apply to individuals who come within the code of conduct of the Bar or the code of conduct of the Law Society. In those circumstances, individuals who are neither barristers nor solicitors but who are employed by the Criminal Defence Service will be giving advice to clients on the basis of a different code from the advice given to clients by professionals in the private sector. I regard that as a serious matter because, in my judgment, the code of conduct that your Lordships have before you tonight is neither as precisely drafted as the professional codes of the respective professions to which I have referred nor does it set standards as high as two codes.
I hear the Minister saying, off stage, "Yes, it does". The Minister has listened to what the noble Lord, Lord Thomas of Gresford, has said. I do not intend to repeat his speech; it would be impertinent of me to do so. I feel that if the Minister thinks the code meets the Bar Council code he ought to go away, having withdrawn the code from the House, and have something drafted in a great deal more detail.
Lord Bach: My Lords, I am grateful to the two noble Lords for commenting on the code. But I can hardly accuse either of them of showing great generosity towards it. It may be that their distaste for the principle of the public defender slightly clouds their judgment about this code--though they will probably deny that.
Lord Kingsland: My Lords, I am grateful to the Minister for giving way. There have been a number of occasions on which your Lordships' House has had to consider matters connected with the Criminal Defence Service since the passage of the Access to Justice Act. It would be fair to say, were the Minister to look back at the speeches made on those occasions, that noble Lords from both these Benches and the Liberal Democrat Benches always stated, first, that they were opposed to the principle, but then went on to deal with the measure before them on its merits.
That is the basis upon which I approached this measure tonight. I made no peroration at the beginning of my intervention about being opposed to the Criminal Defence Service. I approached the regulations as they arrived in front of me. I hope the Minister will accept that and withdraw his opening comments.
Lord Bach: My Lords, I certainly accept what the noble Lord said. I do not withdraw anything that I said at the start of my reply and I do not feel that I should. No doubt some criticisms of this code can be well made. But to hear the noble Lord, Lord Thomas of Gresford, effectively point out dots and commas does not do him much credit.
Let me deal with some of the issues raised. First, in relation to the question on high cost cases, which seems on the face of it to be a fairly uncontroversial order, it is not some sort of hidden band wagon to suggest that all ability to change representation has disappeared. Regulations are being prepared on that subject and there will continue to be a choice in various circumstances; for example, where there is substantial compelling reason or a breakdown in professional relationships. It will always be up to the court to decide whether or not to grant a change. I hope that gives the noble Lord some comfort.
As to the criticism made by the noble Lord, Lord Kingsland, that the code sets a lower standard, I emphasise that this code does not displace the professional codes; they still apply. This code supplements them. There are no lower standards. Some of the criticisms made have been because we included some matters in this code to deal with some of the criticisms levelled against the whole idea of a public defender service. That is exactly why they were included in this measure.
The noble Lord, Lord Kingsland, asked what would happen if it were not possible to maintain some compatability with the professional codes in a specific instance. The professional head of service is required to adjudicate and interpret the code in a way which is compatible with other professional codes. He can also consult the relevant professional bodies in accordance
The code is criticised for including "employee" as well as "professional employee". We believe that we were right to change the code to include both. Criticism has been made of the fact that a public defender service may be in cahoots with the Crown Prosecution Service and that any information coming to a public defender service office would somehow find its way to the Crown Prosecution Service. Those criticisms have been made in this House and elsewhere at other times. In order to meet those criticisms, we have made it abundantly clear in this code that employees of the criminal defence service shall be subject to various duties, one of which is the important duty of confidentiality. Let us briefly consider the clauses that cover all employees. All employees are covered in Clause 3.1, which states:
Clause 5.1 deals with the duty of confidentiality--a matter of great importance, in the light of the criticisms that have been made of this proposed service. I believe that we were absolutely right to make it clear, both from the employees' point of view and from their clients' point of view, that the operation of a public defender service would be no different from that provided by private solicitors' offices around the country. I therefore reject that criticism out of hand.
It may be that no confidential information will be available to a public defender, who may have picked up his clients at the police station on the night of the alleged offence, as private solicitors do, and will therefore have two clients for the time being. But his duty is clear. At the point at which he realises that there is a conflict between the two, it is his duty to give up the case if he has any relevant confidential information. I therefore believe that the noble Lord's criticism of Clause 7.4 is misplaced.
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