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Now that these regrettable defects have been disclosed to us, it is right to correct them as quickly as possible. I take on board the concerns of my hon. Friend the Member for Buckingham about the retrospective nature of the Bill, but now that my hon. Friend has heard the Minister's explanation, I hope that he will be reassured. Had I thought for a moment that an error would have been made or an injustice done to the integrity of the legislation by introducing retrospectivity, I would have been the first to complain.
My right hon. Friend the Member for Bromley and Chislehurst may have something to say on the matter, but it is probably right that the Bill will have received Royal Assent by 2 April. An error of this magnitude serves to amplify the Opposition's frequently expressed concerns about the quality of representation that the public will receive from the criminal defence service. Those are directed in particular at the proposals to establish a salaried criminal defence service.
During the passage of the Access to Justice Bill, the Lord Chancellor envisaged a salaried service playing a role only where there was clear evidence that the private sector was unable to provide in a particular location services of an acceptable quality and quantity. I want to be assured, as did other speakers on the subject in the other place, that before establishing salaried defence lawyers in a particular location, a proper cost-benefit analysis will be undertaken so as to compare the merits of such an initiative with the alternatives available through the private practising profession.
The Minister, more than anybody else in Government, must be aware that there is practically a state of war between the Law Society and the Government and his Department over the funding of the fee structure behind the legal aid system for solicitors practising in criminal law. As I understand it, the Law Society has advised its members to boycott any agreements with the Government in respect of criminal representation work.
I hope that the Minister will be able to tell us that, for once, he is taking a rather less aggressive and more sensible attitude towards the complaints of lawyers who find that the Government's activities are wholly unconducive to the provision of justice. I trust that he will be able to assure me that he has every intention of respecting the guarantee in section 15(4) of the 1999 Act that no one can be compelled to be represented by a salaried lawyer employed by the criminal defence service.
We had a great deal of hot air, if I may say so, from the Home Secretary earlier this afternoon, when he was thumping on about what the Government have done and intend to do about the criminal justice system. More to the point, the Bill demonstrates how easy it is for a high-handed, careless and thoughtless Government to get
Mr. John Burnett (Torridge and West Devon): It is uncontroversial to say that the old advice by way of representation scheme was useful. It was a cheap and relatively informal method of providing a limited degree of assistance in certain circumstances. It would be unfortunate if it turned out that similar assistance by way of advocacy was not available under the Access to Justice Act 1999, and for that reason, in the other place and here, we shall support the Bill.
It would be wrong if the category of those entitled under section 13 of the 1999 Act were not widened to include those subject to criminal proceedings. We welcome that change--individuals subject to criminal proceedings will be covered by this assistance, as well as those under investigation or subject to investigation.
The Government intend that in future at least some of this work will be done by their salaried defender service. Along with the Conservative party, we strongly opposed, as a matter of principle, the introduction of salaried defenders. There were many good reasons of principle for doing so, not least conflict of interest. That the state should be prosecutor, defender and judge in its own cause is alien to us and to anyone in the House. [Interruption.] It is anathema, as the hon. Member for Buckingham (Mr. Bercow) says.
Will the Minister confirm that if the Government introduce a salaried defender service, defendants will always be able to choose either a lawyer from private practice or a state defender? We had long debates during the passage of the Access to Justice Bill, as it then was, about such a choice. It was the contention of the then Minister--now Secretary of State for Defence--that choices made by individuals should be irrevocable. There was a lot of debate at the time about the unfairness of that attitude. If an individual who was under arrest at 4 o'clock in the morning made a choice, and then, having sobered up 12 hours later, wanted to choose another defender--perhaps a private practice defender--should he or she be bound by that first choice? I hope that the Minister will be able to give us some comfort tonight on that point.
Mr. Lock: Is the hon. Gentleman asking for a wider guarantee on choice of lawyer than that contained in section 15(4) of the Access to Justice Act 1999, which guarantees that no person shall be required to accept a salaried defender? If so, will he formulate precisely what he seeks?
Mr. Burnett: I am asking the Minister whether, if a defendant chooses at 2 or 3 o'clock in the morning to be assisted by a salaried defender, that individual--in the space of one or two days or up to a week--will be able to change that choice, removing instructions from the salaried defender in due course and placing them with a private practitioner, or, for that matter, vice versa?
Another point that caused some discussion at that stage and to which an adequate answer was never really given concerned which Department of State would operate the state defender system. Will the Minister confirm that if a state defender system is set up it will never come under the aegis of the same Department as the Crown Prosecution Service?
I understand that there is a Scottish pilot scheme for the state defender system. I believe--it has been reported to me, in any event--that its operating costs are well in excess of budget. Will the Minister confirm that, and will he confirm the extent of the excess over budget? Will he also confirm that the alternative state defender system is likely to be more cost-effective and provide more value for money than the system already provided by private practice?
Mr. David Heath (Somerton and Frome): I rise with some trepidation, but I wish to speak for two reasons. First, I think that matters of justice and the law are too important to be left to lawyers exclusively. Secondly, I spent an extremely instructive day last week at my local magistrates court in Frome talking to the practitioners who are engaged in such work about the situation that they see developing. I must say that one reason for my visit was my hope that we will still have a local magistrates court in the foreseeable future. I have grave doubts about the policies being pursued by the Lord Chancellor's Department on the smaller courts.
I was struck by salient points made by solicitors with whom I talked about the consequences for their profession of the Bill and the Access to Justice Act 1999. I do not dissent from the views expressed by either my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) or the hon. and learned Member for Harborough (Mr. Garnier). Like them, I welcome this correction to the 1999 Act, even if it is extraordinary that the House should be asked to correct that legislation. A little humility from Ministers would be entirely appropriate, although we can, perhaps, expect nothing of the sort from the Lord Chancellor: we seem to have developed the new maxim that being Lord Chancellor means never having to say sorry.
There is an extraordinary lacuna in the Bill on the critical point of representation of people in legal proceedings. It is extraordinary that the Government should have certified that the 1999 Act conformed with the Human Rights Act 1998 and then found such an omission.
My first point echoes what my hon. Friend the Member for Torridge and West Devon had to say about salaried defence lawyers. It would be entirely inappropriate for the state to sponsor investigation through the police, prosecution through the Crown Prosecution Service and defence through a salaried defence lawyer. It would be inappropriate for all those people to be principally responsible to a Minister. That would not transparently represent justice done, and we should be careful about proceeding towards overall nationalisation of the processes of justice.
As the hon. and learned Member for Harborough said, the clear advice that solicitors are receiving from the Law Society is that they should not sign the new contracts being offered by the criminal defence service. That call is clearly being heeded by a great many--if not the majority--of the solicitors in private practice who are providing the services that the Bill addresses.
Unless something changes, on 2 April not a single solicitor in my constituency will be providing the service. There will be but one in Bath, where every other solicitor has signed a declaration saying that he or she will not sign the contracts. There will be no solicitors in Bristol to provide services under this franchise. The position is grave.
It would not be appropriate for me to go into the details of the contract while we are on Second Reading, but solicitors have made good points about the bureaucracy involved--I accept that it is less than it was originally, but it remains significant--about liability, and about unilateral changes that may be made by the criminal defence service but not by solicitors' practices. The level of remuneration has also been mentioned, although I do not believe that it is a prime consideration for many solicitors who are essentially vocational in their attachment to a rather unenviable area of legal work.
Not a single solicitor who has written or spoken to me has questioned the need for some regulation, for audit or for a contract. They simply say that what is on the table at present is not acceptable. Ministers have previously hidden their intentions behind the impression that they are dealing with fat-cat lawyers, those whom we naturally revile and who are making themselves rich at the expense of the defendant or the taxpayer through the legal aid system. That is transparently not the case, however, for those solicitors in small magistrates courts who, in situations in which not many of us would wish to be, act as duty solicitors who are carried by the other members of their partnerships who do much more lucrative work elsewhere in the legal system.
I have been given a clear understanding that unless matters change, people will flee criminal work, telling their partners that they were wrong to cross-subsidise criminal work with civil or other work.