Draft Proscribed Organisations Appeal Commission and the Draft Legal Aid and Assistance

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4.46 pm

Jane Kennedy: Members of the Committee have asked some interesting questions, and I value the opportunity to explore the order a little further.

In my haste to respond to the intervention by the hon. Member for Surrey Heath (Mr. Hawkins), I may have slightly misled the Committee. There are already a number of proscribed organisations in relation to Northern Ireland regulations. What I meant to say was that no new organisations need, at present, to be added to that list. Any such organisations have yet to be determined.

Mr. Hawkins: I am grateful and relieved to hear the Minister clarify that point. If she is unable to give a comprehensive list of those proscribed organisations this afternoon, will she write to all members of Committee with that information?

Jane Kennedy: The proscribed organisations are listed in schedule 2 of the Terrorism Act 2000. Having drawn that to the attention of Committee members, it may be unnecessary for me to write to them.

The hon. Gentleman chided the Government about our alleged tardiness in dealing with proscriptions. Action is in hand; my right hon. Friend the Home Secretary is responsible for determining the organisations that should be on the list, and it would not be appropriate to speculate about them in this debate, which concerns procedural rules for the commission.

The hon. Gentleman asked about the costs of the commission. He also asked whether it would be able to hear human rights arguments, and the answer is yes, in certain cases. We have made a tentative estimate of the costs of running the commission, which will depend on several factors, such as the composition of a certain tribunal hearing or the level of security required for a certain case. We estimate that the costs will be about £3,000 a day.

The hon. Member for Torridge and West Devon (Mr. Burnett) asked about composition of the commission. As I have said, that will be determined by the Lord Chancellor, who will appoint not only the chair, but the members of the commission.

Mr. Burnett: I also wanted to know a little about the qualifications of the individuals who will be appointed by the Lord Chancellor to sit on the commission. I am grateful to the Minister for telling me that the Lord Chancellor will appoint not only the chairman, but the members of the commission, but their qualifications are important, as individuals will have an important task.

Jane Kennedy: The special advocates' qualifications are dealt with in paragraph 7(3) of schedule 3 to the 2000 Act. The commission will be composed of members who hold or have held high judicial office, and appointments are under way. Ten other members of the commission will be appointed by open competition, and they will not necessarily be legally qualified. As I said, in each tribunal of three, one member will have held high judicial office, so that every tribunal panel will have at least one such member. It is our intention that there will also be one legally qualified member and one specialist member in each hearing. I hope that that clarifies the point about composition.

I was asked how the appointment of a special advocate could be challenged, but it is difficult to see how such a challenge would take place, since the only way to challenge an appointment would surely be by judicial review. I am not entirely certain of that, but it is difficult to see grounds for judicial review, or who could object. Those who object might better do so through, for example, their Member of Parliament or the Parliamentary Commissioner for Administration.

To the best of my ability, I have sought to answer the points raised. I hope that the Committee is satisfied with our deliberations.

Question put and agreed to.

Draft Legal Advice and Assistance (Scope) (Amendment) Regulations 2001

4.52 pm

The Parliamentary Secretary of State, Lord Chancellor's Department (Mr. David Lock): I beg to move,

    That the Committee has considered the draft Legal Advice and Assistance (Scope) (Amendment) Regulations 2001.

I hope that the draft regulations, laid before the House on 11 December 2000, will be approved. They will extend the scheme for assistance by way of representation to cover applications to a judicial authority for an extension of detention under the Terrorism Act 2000. The Government are making the change to ensure that appropriate representation is available to detained individuals when applications are heard.

Before explaining the brief changes in more detail, it may help the Committee if I give some background on the procedure to which they relate. A person suspected of being a terrorist may be arrested and held for up to 48 hours by the police under powers contained in the 2000 Act. During that period, the detained person is entitled to consult a solicitor for advice at any time, unless a senior police officer authorises a delay in such a consultation. The grounds on which a senior police officer may authorise delay are contained in the Act. When permission is given to consult a solicitor, help will be available under the existing police station duty solicitor scheme. That scheme allows for the detained person to consult either a quality-assured solicitor of his or her choice or the solicitor on duty at the time, who will be quality assured or would not be in the scheme in the first place. Such help is available without reference to the means of the detained person. I should make it clear that free legal advice in those circumstances is provided under the arrangements as they exist, without the need for any amendment to the scheme.

When the police wish to extend the period of detention of a terrorist suspect, an application must be made to a judicial authority for a warrant of further detention.

Mr. Dale Campbell-Savours (Workington): Why should anyone with means receive free legal advice?

Mr. Lock: Perhaps I should answer that by qualifying ``free''. Legal advice provided under the criminal defence scheme is free at the point of issue. The previous practice of conducting a means test and then giving legal advice only to those who passed that it resulted in far greater costs to the administration than it did contributions to those denied legal advice. At the end of the case, where a conviction has been proved and it is clear that a defendant has means, the prosecution can and will apply for a defendant's cost order, and it will be for the judge to determine what proportion of the costs incurred in defending that individual will be paid for by the individual.

Mr. Campbell-Savours: Will apply?

Mr. Lock: Yes, will.

Mr. Campbell-Savours: I am sorry to press my h F, but I attended an interesting dinner recently at which the matter was discussed at great length. My hon. Friend says that at the end of the proceedings, a judge would decide, but, if it is clear that a person has assets, why should the judge have even that discretion? Why, if an application is made to recover the costs, should repayment by the defendant not be automatic? In addition, what is the cost of giving the advice? Could it, on occasion, be expensive?

Mr. Lock: I shall deal with the second point first. The cost varies from case to case. The Government spend approximately £800 million a year on criminal defence services, the vast majority of which goes to people without means.

On my hon. Friend's first point, the matter is not entirely straightforward. For example, if a defendant comes before the court charged with six different offences, and the jury convicts him of one, it is right that the judge should have some discretion over the extent to which the defence costs are to be born by the defendant, just as the judge has discretion over the extent to which a defendant with means shall pay the costs of the prosecution. The usual rule is that if the defendant is acquitted, he receives his own costs from central funds. However, if the defendant has brought the case upon himself, or acted imprudently, the judge has some discretion to disallow the reimbursement of those costs. The judge can force the defendant to meet them himself, despite the fact that he has been acquitted. Even in the event of a conviction, the judge may take the view that, because of the way in which the prosecution has been conducted, certain issues that have involved considerable cost have, nonetheless, been resolved in the defendant's favour.

I am afraid that the matter is as complicated and varied as the cases that come before the court. However, I assure my hon. Friend the Member for Workington (Mr. Campbell-Savours) that the general principle is that where free legal advice is provided to a defendant with means and that defendant is convicted, he or she will be expected to pay not only his or her costs, but those of the prosecution. I hope that that satisfies my hon. Friend.

I return to the matter under discussion, which has a much more limited scope. Where the police wish to extend the period of detention of a terrorist suspect, an application must be made to a judicial authority for a warrant of further detention. In England and Wales the application will be made to the senior district judge or chief magistrate, or her deputy or any other district judge from the magistrates courts as designated for the purpose by the Lord Chancellor.

The grounds on which a judicial authority may issue a warrant are set out in the Terrorism Act 2000. Briefly, the authority must be satisfied that further detention is necessary in order to obtain or preserve relevant evidence and that the investigation is being conducted diligently and expeditiously. At that stage the defendant will not have been charged. Such a warrant, or an extension of it, will authorise further detention for a specified period not exceeding seven days.

That is a new procedure, so we have looked carefully at the form of legal help that should be provided. It is important that representation should be available to the arrested person at the hearings to ensure that he or she can exercise the right to challenge continued detention.

Under the assistance by way of representation scheme, a person may ask a solicitor to prepare his case and represent him in court. Applications are made through the solicitor, who will complete the appropriate forms and send them to the local office of the Legal Services Commission. Any assistance provided is subject to a means test and an assessment of whether it is appropriate for representation to be provided in the circumstances of the case. The scheme is used mainly for proceedings in the magistrates courts.

However, hearings for an extension of detention under the Terrorism Act 2000 may take place at short notice, and it will be essential that legal help is available without any avoidable delay. For those cases, we propose that a solicitor should be able to give assistance by way of representation without the need for approval by the Legal Services Commission, or anyone else, and without the need to assess the detained person's means. In those circumstances, a solicitor acting for the detained person will be able to provide advice and representation straight away.

That form of help is already available to a person in connection with an application to a magistrates court for a warrant of further detention under the Police and Criminal Evidence Act 1984. The new regulations effectively extend the current arrangements so that they will also cover applications to a judicial authority under the Terrorism Act 2000. The regulations are compatible with the rights conferred by the European convention on human rights.

If the Committee approves the regulations, a further instrument, not requiring affirmative resolution, will be laid before the House to amend the Legal Advice and Assistance (Scope) Regulations 1989. The second instrument will incorporate the amendments before us into those regulations—a technical measure needed to give effect to the amendments.

With that brief explanation, and given that the compass of the amendments is solely focused on the intermediate hearings to extend the detention of a person before he or she is charged, I hope that the Committee will feel able to give its approval.

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