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Standing Committee Debates
Criminal Defence Service (Advice and Assistance) Bill [Lords]

Criminal Defence Service (Advice and Assistance) Bill [Lords]

Standing Committee A

Tuesday 6 March 2001

[Mr. Jonathan Sayeed in the Chair]

Criminal Defence Service (Advice and Assistance) Bill [Lords]

10.30 am

The Chairman: I remind hon. Members that adequate notice should be given of amendments. As a general rule, I do not intend to call starred amendments. I should also remind hon. Members that, under the programme motion agreed by the House on 26 February, the Committee's proceedings must end on Thursday 8 March.

This morning, the Programming Sub-Committee agreed a resolution, copies of which Members have. I call the Minister to move it.

Motion made, and Question proposed,


    (1) in addition to the first sitting today at 10.30 a.m., three further sittings shall be allotted to the consideration by the Standing Committee of the Criminal Defence Service (Advice and Assistance Bill) [Lords],

    (2) the second sitting shall be held today between half-past Four o'clock and Seven o'clock,

    (3) the third sitting shall be held on Thursday 8th March at Ten o'clock,

    (4) the fourth sitting shall be held on that day at Two o'clock, and

    (5) proceedings on the Bill shall be brought to a conclusion at half-past Four o'clock at that sitting (unless concluded earlier).—[Mr. Lock.]

Mr. Edward Garnier (Harborough): When the Minister moved the motion in the earlier Programming Sub-Committee, I said nothing. I disapprove of such motions, as a matter of principle.

Mr. John Burnett (Torridge and West Devon): We approved the programming motion earlier, and I am happy to proceed on that basis.

Question put and agreed to.

Clause 1

Extent of duty to fund advice and assistance

Question proposed, That the clause stand part of the Bill.

The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I welcome you, Mr. Sayeed, to our brief deliberations. I look forward to serving under your chairmanship for the first time—with the exception of the Programming Sub-Committee this morning.

The Criminal Defence Service (Advice and Assistance) Bill [Lords] clarifies the extent of the Legal Services Commission's duty to fund legal assistance as part of the new criminal defence service under section 13 of the Access to Justice Act 1999. The criminal defence service will come into being on 2 April 2001.

There is some doubt whether the interaction of sections 13 and 14 of the Access to Justice Act allows for the limited form of representation known as advocacy assistance—more commonly known as ABWOR, or the assistance by way of representation scheme. There is also doubt about whether section 13 allows the funding of advice and assistance for people who are, may be or have been involved in quasi-criminal proceedings. Clause 1 seeks to remedy both of those apparent deficiencies.

First, the amendment that the Bill makes to section 13 of the Access to Justice Act makes it clear that the assistance that the Legal Services Commission is allowed to fund under section 13 includes advocacy. Under current arrangements, the court duty solicitor scheme is provided for by the ABWOR scheme. If an individual is arrested, remanded in custody and brought to a magistrates court before he has an opportunity to apply for a full representation order, formerly known as criminal legal aid, the scheme provides that he may use the services of the court duty solicitor or a solicitor of choice to represent him at the early hearings. Without that vital scheme, vulnerable individuals might not be properly represented, and the criminal justice system as a whole could be subject to delay and possible injustice.

Secondly, section 13 of the Access to Justice Act refers only to investigations. The Bill therefore makes it clear that advice and assistance are available to those involved in criminal proceedings, rather than only to those involved in criminal investigations in prescribed circumstances. That allows advice and assistance to be extended—for example, to cover proceedings for anti-social behaviour orders and civil proceedings in magistrates courts arising from the failure to pay a debt if such failure carries the risk of imprisonment. Those proceedings will be defined as criminal proceedings for the purpose of providing legal help under the criminal defence service.

After the Bill was published, the Government introduced three amendments on Report in the House of Lords. Taken together, they allow the Bill, on enactment, to have retrospective effect. Amendment No. 1 provides that the 1999 Act will be read as though the Bill has always amended it. Amendment No. 2 provides that secondary legislation made under the powers in section 13(1) of the 1999 Act may also have retrospective effect, and amendment No. 3 changes the commencement date of the Bill. There is no longer any need for the Bill to commence on 2 April, so it will commence on the day on which it receives Royal Assent.

I am sure that hon. Members will agree that the Bill, although small, is important, and I hope that it will receive a speedy passage through the Committee. The defects that we seek to remedy through the Bill were not in the Government's original draft of the Bill that became the 1999 Act. During its passage, we listened to amendments and concerns raised on both sides of the House. As a result, amendments were made to what are now sections 13 and 14 of the Act. The Bill corrects an unintended consequence that was a result of our response to genuine concerns. So far as we can determine, the defects were not spotted by the Government or the Opposition during the passage of the Bill that became the 1999 Act.

I am grateful to the hon. and learned Member for Harborough (Mr. Garnier) for his support for the Bill and the principle of maintaining the duty solicitor scheme. I commend the clause to the Committee.

Mr. Garnier: The Minister is right to say that the Bill has the general support of the official Opposition. That is not because we admire what the Government have done, as the Bill could more properly be described as the ``Access to Justice (Cock-up) (No. 1) Bill''. The Minister and his colleague in the House of Lords admitted to the error. I am not sure whether it is the duty of the Opposition to point out the Government's incompetence; none the less, it is there for all to see, hence the Bill. I shall do nothing to inhibit its passage, as its overall intention is to correct a removal of access to justice. I will do all in my power to achieve that correction.

I ask the Minister to answer several questions that arise from the Bill and the Access to Justice Act, which it seeks to correct. How many solicitors or firms of solicitors have so far signed the contracts of the Lord Chancellor's Department for the provision of advice and representation in criminal cases? As the Minister will know, the Law Society is in a state of war with the Department about the contracts, which are required to be signed if the criminal defence service, in its wider sense, is to come into existence effectively. Finally, how many lawyers will the salaried defender service employ and when will they begin work, and what is likely to be the overall annual cost of its establishment?

Mr. Burnett: I, too, welcome you to the chairmanship of the Committee, Mr. Sayeed. I have not had the privilege of serving under your aegis before.

I will be interested to hear the Minister's response to the questions asked by the hon. and learned Member for Harborough.

The principal practitioners who will provide the duty solicitor service at our magistrates courts will, of course, be private practitioners. The hon. and learned Gentleman referred to the state of war between the Lord Chancellor's Department and the Law Society about the contracts being negotiated to provide the service. Will the Minister tell us how those negotiations are proceeding? When does he believe that they will be concluded, and what are the main points of tension and disagreement in relation to the contract? Is there a chance that the Lord Chancellor's Department will take steps to overcome those points of disagreement and tension?

When we debated this little Bill in the House on 26 February 2001 I referred to the Scottish pilot scheme for the salaried defender service. I am told that the operating costs are well in excess of the budget for that scheme. What is the excess? Does the Minister believe that that alternative state, or salaried, defender system is likely to be more cost effective and greater value for money than the existing service, provided by private practitioners?

Mr. Lock: It is interesting that the questions that I have been asked are, with the greatest respect to hon. Members, at best tangential to the Bill. However, I admire the ingenuity that has been employed in asking such questions, and I shall try to answer them.

I am not today in a position to give the exact number of solicitors who are presently signed up for the Legal Services Commission contract. The issue is not how many have signed up to date, but how many will have signed by 2 April. The hon. Member for Torridge and West Devon (Mr. Burnett) asked how negotiations are proceeding, and I can tell him that they have concluded. They have been complex negotiations, based on a comprehensive research programme that was undertaken on the commission's behalf with respect to the contracting pilot that it has been running for two years with 70 criminal defence firms.

The research has been undertaken for the commission by a team led by Professor Lee Bridges of the university of Warwick. The research report was published by the commission in August, alongside the draft contracts for consultation. In addition, of course, the commission has a large, well developed and comprehensive network of contacts with criminal defence lawyers and their national representative organisations. It has been discussing the details of the contracts with them. It is true that we based the draft contract on the research, but it has been amended in various ways through negotiations. The negotiations are finished and the final form of the contract is now available for solicitors to sign.

As to points of tension, remuneration issues are clearly important to solicitors. The contract provides for an increase in remuneration of a global amount of about 7.25 per cent. As money is being paid under contract, rather than under the old system, it is not possible to make an exact comparison of like with like. However, the Government believe that the settlement is a fair and reasonable one for the important work that is being undertaken.

The second issue that the hon. Gentlemen raised—


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