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Mr. Vaz: I beg to move, That this House does not insist on Commons amendment No. 31, to which the Lords have disagreed.
Lords Reason:
Because an individual who has been provided with advice or assistance funded by the Commission under section 14 should not be taken to have selected as his representative pursuant to that right the person who provided the advice or assistance.
Mr. Deputy Speaker:
With this, we may take Government amendments (a) and (b) in lieu thereof.
Mr. Vaz: The amendments relate to clause 15,which establishes the duty of the commission to fund
representation, sets out the means by which it may do so, and provides powers to limit the extent to which the defendant may choose his or her representative.
It is highly desirable that defendants should be able to choose their representative, not least to promote their confidence in the criminal justice system. Clause 15(7) enshrines that principle. However, a completely unrestricted choice would undermine the commission's ability to achieve value for money, so subsection (8) contains powers to limit that right of choice by regulations.
One of the fundamental weaknesses of the present criminal legal aid system is its fragmentation. That can lead to help being given under several different parts of the scheme in a single case--green form advice, advice and assistance at the police station, assistance from the duty solicitor at the magistrates court, and a full legal aid order for representation in court. That produces duplication, delay and unnecessary cost.
Amendment No. 31, now further clarified by the amendments proposed today, is central to our plans to eliminate these deficiencies in future by ensuring, wherever possible, continuity of representation throughout the case. It is a power to make regulations prescribing circumstances in which individuals who receive advice and assistance are deemed to have selected their adviser to represent them in the subsequent proceedings.
Once an individual has chosen an adviser, typically when being questioned by the police, the taxpayer should only have to pay for another lawyer to take over the case, necessarily repeating some work that has already been done, if there is a good reason for a change. An example would be a conflict of interest between clients.
Let me explain how we envisage the system working in practice. A person being questioned by the police will be able to select his or her adviser from any firm holding a contract with the Legal Services Commission, or he or she might select a salaried defender. Suspects would be shown a list of all firms based in the area, and informed of the implication of their choice. If the chosen adviser were not available, the individual would use the duty solicitor for the time being. But the duty solicitor will not be considered to have been selected, as a preference had been expressed for someone else. If an individual declines to express a preference, he or she will be advised by the duty solicitor and deemed to have selected the duty solicitor as their representative.
The power provided by amendment No. 31 applied to any provider of advice and assistance; it did not distinguish between those who had been chosen by the suspect and those providing advice only because the chosen adviser was not available. The intention was for the regulations to make it clear that a person advised by the duty solicitor would not be deemed to have chosen the duty solicitor as a representative if a different choice had been expressed.
Alternative amendment (a) in my name is a more limited power which applies to only chosen advisers. Amendment (b) provides power to define what constitutes a choice. That is necessary to deal with the situation of an individual who declines to express any preference. The regulations would provide that someone who remained silent, having been informed of their right to make a choice and the implications of not doing so, would be
deemed to have chosen the duty solicitor who actually advised them. That is necessary to prevent people from playing the system by refusing to express a preference, accepting the advice of the duty solicitor, and then seeking to exercise their right to choose a different representative when the case reached court, probably causing the case to be adjourned.
We intend to consult on the details of all the regulations under clause 15, including regulations about continuity between advice and representation under these amendments, and regulations under clause 15(8)(e) about the circumstances when it is justified to change the originally chosen representative.
The Government have explained repeatedly during the Bill's passage that it will provide powers to ensure that the public receive quality-assured services. People requiring criminal defence services will benefit from the performance standards that will be incorporated in all contracts, and applied to salaried defenders. Those will include targets for the proportion of requests to attend at a police station, once a suspect has made a choice, which are met by the solicitors' firm or salaried defenders' office. All firms with criminal defence service contracts, and any salaried defenders, will take part in the duty solicitor rota. There is, therefore, no reason to suppose that advice and assistance from the duty solicitor in any sense constitutes a second-class service.
Mr. Garnier:
My brevity should not be taken to reflect our opposition to the way in which the Government intend to amend the Bill. I have listened with care to the Minister. What he said broadly reflects what the Lord Chancellor said about Lord Gresford's amendment on 14 July:
Mr. Humfrey Malins (Woking):
Will my hon. and learned Friend accept from someone who has practised
Mr. Garnier:
My hon. Friend speaks a truth evident to all--except the Government--who are prepared to apply their minds to it. I regret that a Government containing distinguished lawyers including the Lord Chancellor, Lord Falconer of Thoroton and even the Minister, who is muttering across the Table, should be so befuddled by their own arguments, but parliamentary arithmetic means that my argument may win the day and lose the vote. That is life in the House these days.
I wish to draw to the House's attention the gross unfairness and lack of justice of the Government's proposals. They will leave an absence of choice for the defendant. Imagine a defendant who enters a police station at 2 am, perhaps after being beaten up, perhaps drunk. That man will be required to submit himself to the choice provided by the Lord Chancellor, and to no other choice. The Government's proposal is appalling, and I urge my right hon. and hon. Friends to throw it out.
Mr. Burnett:
For the record, in spite of the Minister's comments during the previous debate, my opposition to the state or salaried defender system is genuine. For the reasons I have often given, it is also absolute.
"It will allow the defendant's choice to be limited to any lawyer with a current contract with the Legal Services Commission (or, had that provision prevailed, a salaried defender). Our intention is to ensure that suspects and defendants generally have a choice between several contracted firms and, were salaried defenders to be permitted, with them too."--[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 424.]
I am reminded of Mr. Henry Ford, the car manufacturer, who said that people might have any colour, so long as it was black. In Committee, on 4 May, I described the Minister's predecessor's arguments in favour of the Government's proposal as follows:
"When I say that you have a choice, you have the choice that I decree you should have. It's not a free choice between any number of options--it's take it or leave it."--[Official Report, Standing Committee E, 4 May 1999; c. 227.]
The Government have been responsible for a huge number of remarkable utterances.
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