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Mr. Garnier: Does my right hon. and learned Friend accept that this is what happens when Parliament, forced by a huge and thoughtless Government majority, allows Ministers to create legislation by secondary powers? He kindly referred to me and was very perceptive about what I said this evening--I did use the expression "Christmas tree". Such legislation is exactly what happens when Governments try to give themselves powers to make legislation off the field. Ministers run back to their Departments to draw up legislation, and they let through provisions that they might have decided against if they had thought about them and had they been debated on the Floor of the House.
Sir Nicholas Lyell: My hon. and learned Friend is absolutely right; that is exactly what happens. The country should sit up and take notice of the way in which it is being misgoverned. Another example of that misgovernment occurred this afternoon, and it is highly relevant to this aspect of criminal justice, which concerns the way in which people can be brought before the courts.
The criminal defence service is designed to reduce the standard of defence that is available to the citizen when he is charged with a crime. I see the Minister frowning at that suggestion, but if he is seriously saying that a salaried service will be the equivalent of the current service, he
needs to make his case. If the Government receive another term of office, as I hope they will not, and if what is being spun in the newspapers today becomes law--curiously, it did not find reflection in the Home Secretary's statement earlier--the citizen who has a right to receive representation under the criminal defence service will lose the right to be brought before a jury and will simply have a right to come before a legally qualified chairman and three lay magistrates, which is not the same.It is wrong that the House is being asked to rush through legislation that fundamentally truncates both the rights of citizens who find themselves in the dock and the democratic rights of UK citizens to control our criminal justice system by their efforts as jurors, as they do in their hundreds of thousands every month,
Mr. Nick Hawkins (Surrey Heath): My right hon. and learned Friend is talking about rushing legislation through the House. Does he agree that on the first day back after a short recess, it may be relevant to recall that during that recess we had the revelation of the scandalous way in which the Lord Chancellor is using his time--
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. The hon. Gentleman is going far outside the scope of the Bill. The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell), too, is concentrating rather more on the Act that is being amended than on the Bill itself.
Sir Nicholas Lyell: If I have concentrated too much on the Act rather than on the Bill that amends it, and if that is out of order, Mr. Deputy Speaker, I will attempt to step back into order.
I centre my remarks on the criminal defence service, which is the subject of the Bill. Its inadequacies have been shown up by the very need to introduce the Bill. The standard of representation that is available to someone who needs defence is an important matter of civil liberty. I am grateful to have caught your eye, Mr. Deputy Speaker, and to have had the opportunity to take part in the debate and make that point. I hope that the Government will take to heart the point that rushing legislation through the House is not in our parliamentary tradition, and that if they receive another term of office, they will not do so again.
7.54 pm
Mr. Lock: This has been an interesting debate--
Mr. Deputy Speaker: Order. The Minister requires the leave of the House to speak again.
Mr. Lock: I apologise, Mr. Deputy Speaker. With the leave of the House I will respond to the debate. As I am speaking for a second time, I shall be brief.
I am grateful to the hon. and learned Member for Harborough (Mr. Garnier) for his support for the Bill. He referred to the negotiations on the criminal contract and the criminal defence service which are taking place between the Legal Services Commission and the Law Society. Those negotiations are at an advanced stage. As a lawyer, the hon. and learned Gentleman knows that
lawyers are skilled negotiators not only on behalf of their clients but on their own behalf, and one would expect them to exploit the position to their utmost advantage. I am confident that the contract that is available at present is fair. I am grateful to the firms of solicitors that have signed the contract to date, and we look forward to more firms signing in due course.The hon. and learned Gentleman trotted out his usual attacks on the Access to Justice Act 1999. Of course, we do not know what his party proposes for criminal contracts, so we have no idea what the alternative is. In civil law, the alternative offered by the Opposition is to give £500 million back to the Treasury and entirely abolish civil legal aid, which would hardly create access to justice.
Mr. Garnier: If the Minister wishes to respond to the points that I made in the debate, I will be happy to listen to him. If he wishes to raise erroneous Aunt Sallies about another debate, he should confine his remarks to another place.
Mr. Lock: I appreciate that the hon. and learned Gentleman is embarrassed about his civil justice proposals, so I will not pursue the matter.
The hon. Member for Torridge and West Devon (Mr. Burnett) raised a serious issue, unlike those hon. Members who spoke before him, when he referred to the independence of salaried lawyers. I am sure that he has read the remarks of the Canadian Bar Association which are set out in the Government's consultation paper on the establishment of the criminal defence service. The association said that it should be obvious that it is the fact of third-party payment, not the nature or form of that payment, that creates the potential conflict when the paymaster is the public purse. The hon. Gentleman rightly referred to concerns that a salaried lawyer employed by the state may lack independence compared with someone who receives money from the state but is in private practice.
The evidence from well-structured and well-funded salaried services around the world is extremely positive and shows that a mixed system provides not only value for money for the taxpayer but independent representation for the defendant. I refer the hon. Gentleman to the remarks of Judge Helen Halpert of the King county superior court, formerly of the Seattle municipal court. That experienced judge said:
- "Most judges, if they were offered the choice between an agency lawyer or a private lawyer, would choose the agency lawyer."
I accept, of course, that there are examples of underfunded agency lawyers and staff lawyers in many Commonwealth countries who do not provide a good service. Comparing like with like, however, the evidence in favour of such a service is very strong. It is the fact of third-party payment, not whether that payment is made to someone who is employed or to someone who is self-employed, that makes the difference.
The hon. Member for Torridge and West Devon made an important point about the choice of the defendant. I am sure that he saw our consultation paper on the issue, which raised a number of questions about the appropriate
cooling-off period. No decisions have been made on that. I hope that the hon. Gentleman took the opportunity to respond to the consultation and that we have therefore had the opportunity to hear his views, in addition to those voiced by others.The hon. Member for Somerton and Frome (Mr. Heath) made--
Mr. Burnett: I made another point. I hope that the Minister can reassure the House that the Crown Prosecution Service and the state defender service will never come under the aegis of the same Department of state.
Mr. Lock: The hon. Gentleman did raise that point, on which I cannot reassure him other than by saying that the Government have no plans to do that. The proposals set out by my right hon. Friend the Home Secretary earlier this afternoon plot a course for the future of the criminal justice system. They plainly envisage the separation of the departmental responsibilities of the CPS and defence services. I hope that that will remain the case. I believe that it is only right and proper that it should. However, one can never say never. A Government, possibly in the far distant future and of a different party, could form another view.
Sir Nicholas Lyell: In those circumstances, how can it be an objective of Government policy to ensure that an extra 100,000 prosecutions take place each year when that is matter not for the Home Secretary but for the Attorney-General?
Mr. Lock: If the right hon. and learned Gentleman looks at the document that was presented this afternoon, he will see that it is a result of the three Departments that are responsible for criminal justice working together. The document had to be presented to the House by one Department--in this case, the Home Office--but it covers the role played within the overall criminal justice system by departments that are responsible to the Home Office, and the role of my Department and that of the Attorney-General.
The right hon. Member for Bromley and Chislehurst (Mr. Forth) was entertaining as always. Retrospection will be needed only if Royal Assent is granted after 2 April. The Bill's provisions on retrospection will not be required if Royal Assent is granted before 2 April. The right hon. Gentleman is perfectly right to say that no provisions will come into force if there is no Bill and that, therefore, there will be no provisions to which retrospection will apply. As the CDS comes into force on 2 April, it will have the financial consequences that I outlined. In those cases for which representation is required, a representation order will be needed under section 14. That is instead of utilising the duty solicitor provisions in section 13.
I hope that the right hon. Gentleman will agree that it is in the interests of the operation of the criminal justice system that retrospection should not happen. He was right to say that the Bill arises out of a lacuna. This is not the first time that the matter has been brought before the House. I could not describe the Bill better than the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell), who eloquently spoke of taking forth legislation in similar circumstances as a junior Minister. It is in the interests of the criminal justice system to allow the matter to proceed smoothly.
The right hon. Member for Bromley and Chislehurst also asked about the meaning of clause 1(1). I assure him that it substitutes section 13(1)(b) with a new paragraph (b) and contains the words that will follow it. That is why the words
- "and the assistance which the Commission may consider appropriate"
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