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Lord Hutchinson of Lullington: As regards consultation, the noble and learned Lord said that examples of it are legion. But was there any consultation with the profession concerning the revolutionary proposal of a salaried non-independent public defender before that appeared in the Bill?
The Lord Chancellor: We shall debate that in specific amendments appropriate to that matter. But, yes, I have had discussions in my office with representatives of the Bar and the Law Society on that subject.
3.30 p.m.
Lord Renton: While listening carefully to the noble and learned Lord, it seemed to me that he was making out a very strong case for the amendment. He said three times that he was going to have consultation of the kind envisaged in the amendment. Therefore, why should that not be written into the Bill?
Lord Thomas of Gresford: In rising to support the amendment of the noble Lord, Lord Windlesham, I noted what the noble and learned Lord the Lord Chancellor said regarding there being no "big bang" about the proposals. Nevertheless, major changes are proposed to the way in which people are supported by the state in defending themselves against criminal charges. It is surprising that there has not been a greater degree of consultation than that to which the noble and learned Lord referred.
It is important that there be independence between the defence and prosecution in a criminal case. We have maintained that principle up until now. Criminal legal aid has always been organised and supervised by the courts, which were responsible, first, to the Home Secretary, but from the 1980s, in the case of the higher courts, it became the responsibility of the Lord Chancellor's Department. But independence of the legal aid system for people charged with criminal offences was guaranteed by the interposition of the courts and accountability was secured by the powers of the taxing officer who ensured that expenditure was reasonable and justified. Indeed, at one time it was the clerk who actually heard the case who determined what was
appropriate in the way of defence costs. But today, in more serious cases, he has been replaced by the central taxing unit and by graduated fees.However, the criminal defence service which is now proposed in the Bill is a step nearer to government control. It will affect the independence of the defender in a number of ways. For example, the "right to representation", as it is called, is not an inherent right of an individual accused of crime. According to Schedule 3, a person accused of crime has a right to representation only after the court or the commission has, in its discretion, granted that right. Then the grant of that right depends on the criteria set out in paragraph 6 of the schedule, which, as it appears to me, will limit the eligibility of a person charged with a criminal offence very considerably, as compared with the position today.
The right to representation is being limited by the proposals and is being limited on the face of the Bill. There has been no consultation about it. Further, the Lord Chancellor has the controlling power to alter the criteria himself and to determine what is in the interests of justice in the granting of what is effectively legal aid, or the right to representation, to an individual defendant. Then the power of the commission to provide advice and assistance and itself to provide representation, as my noble friend Lord Hutchinson pointed out, introduces the concept of the state prosecutor versus the state defender. It really is only one short step to the removal of the principle that a defendant is entitled to independent counsel of his own choosing. That principle has been part of the law of this country for centuries.
So these are major changes which do appear on the face of the Bill. The sort of consultation to which the noble and learned Lord referred in his initial reply to the noble Lord, Lord Windlesham, related to matters of detail and matters of practicality, which have nothing to do with the broad principles with which this Bill is concerned. As the noble and learned Lord the Lord Chancellor rightly observed, we shall consider the detail at a later stage of these proceedings. However, we are faced with the policy set down by the Government without full and adequate consultation upon it having taken place.
Lord Windlesham: I am grateful to the noble and learned Lord for his full reply to my amendment. I do not doubt for a moment that he spent a great deal of time in well-intentioned negotiation with the professional bodies. However, the noble Lord, Lord Thomas, put very clearly in his final remarks what is in my mind; namely, that the discussion and negotiations have been very much on operational matters--that is to say, the working of the contracting system and the pilot scheme which is in progress. They did not, however, deal with the central issues.
For those who are not familiar with these matters, I should point out that there are six chapters in the White Paper. One of them is 10 pages long and is exclusively devoted to the criminal defence service. Indeed, a clear scheme is set out there. It contains the heart of the proposals and outlines matters that call for
scrutiny and review. I do not question the interpretation of the noble and learned Lord the Lord Chancellor. That must be how he saw it. Nevertheless, he said that the establishment of the criminal defence service is no big deal.
The Lord Chancellor: I said that it was, "no big bang".
Lord Windlesham: I stand corrected. Let us use more formal language. We are talking about a matter of considerable significance for the future. I am sure that we can all agree in that respect. Nevertheless, I believe that this debate has served its purpose; indeed, we have had a full discussion. If my noble friend Lord Kingsland decides to withdraw the amendment, I shall not object.
Lord Kingsland: The noble and learned Lord the Lord Chancellor was quite right to say that he has consulted extensively on many matters contained in this Bill; and if I may say so, he has, in most cases, done so in an extremely professional way. He has issued well-prepared and well-thought-out documents. He has listened to what has been said in response and has taken into account many of the observations made. That is why the appearance of the criminal defence service in the Bill is so strange. I say that because the rights of the criminal accused are absolutely central to the successful operation of a free society. Therefore, any attempt to change those rights or the framework in which they are exercised, will always be a matter of profound parliamentary concern.
The criminal defence service initiative in the Bill is the odd man out, because no prior consultation of the type which has taken place in all the civil initiatives has taken place in relation to it. I shall read carefully the reply of the noble and learned Lord the Lord Chancellor to the points made by my noble friend Lord Windlesham; and think about either reintroducing this amendment, or tabling a modified one, on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner: moved Amendment No. 146:
The noble and learned Lord said: In moving this amendment, I shall also speak to Amendments Nos. 147, 148 and 149. This group of amendments was due to be dealt with shortly before 10 o'clock on the evening of last Tuesday. I had marked it down as containing four modest "post-prandial" amendments. However, the timing now makes that a rather superfluous description.
The amendments speak for themselves to a large extent. Amendment No. 146 relates to the word "involved", which I believe is intended to cover "suspected or accused". If that is right, then the latter should be inserted in the wording of the subsection. Amendment No. 147 relates to subsection (2) of Clause 12. I do not know what is intended by the clause and, therefore, I have tabled this probing amendment in an effort to discover why the subsection has been
The Lord Chancellor: I appreciate that the noble and learned Lord has tabled this amendment as a probing amendment. Of course because we gave way on the previous Committee day to the suggestion that we should rise earlier the noble and learned Lord is able to move this probing amendment conveniently before afternoon tea!
I think that the noble and learned Lord has failed to appreciate that the provisions he wishes to exclude are, and are intended to be, of exclusively beneficial effect. However, as I say, I appreciate that this is a probing amendment. The wider circumstances encompassed within the word "involved" are deliberate. Clause 12(1) defines the circumstances in which criminal defence services are to be available as those where an individual is involved in criminal investigations or criminal proceedings.
Subsections (2) and (3) respectively define what is meant by criminal investigation and proceedings and give the Lord Chancellor power by order in effect to extend the categories of investigations and proceedings for which defence services are available. The noble and learned Lord's amendments would remove the definition of criminal investigations and the power to extend the definitions of criminal investigations and proceedings. The loss of a power to extend the definition of criminal investigations and proceedings for which defence services are available would be regrettable.
For example, I would not be able to extend criminal defence services to post-conviction investigations such as those by the Criminal Cases Review Commission into alleged miscarriages of justice. Or again, I would not be able to extend the meaning of criminal proceedings for which defence services are available to representation in Parole Board reviews of discretionary life sentences or sentences of young offenders detained at Her Majesty's pleasure.
For those reasons and because the significance of the language is to enable me to give rather than to take away, I invite the noble and learned Lord to withdraw his amendments.
Page 8, line 19, leave out ("involved") and insert ("suspected or accused").
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