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Lord Windlesham: Before the noble and learned Lord replies, I accept that those arguments are intended to be helpful. Nevertheless "involved in" is surely a loose and conversational term. I am rather surprised to find it in the vocabulary of the government draftsman at all.
The noble and learned Lord pointed out that the suggested wording of "suspected or accused" would leave out quite important categories of activity; for
example post-conviction review. I believe another category might comprise those who go to a police station voluntarily but are not accused or suspected. The Law Society has mentioned that as possibly an additional category of person who would not be covered by the proposals of the noble and learned Lord, Lord Ackner. I have been closely involved with the question of discretionary life sentences and the representation of those who present their case to panels of the Parole Board. It is clearly important that legally aided qualified people should be available. I suspect that the amendment will be withdrawn. However, will the noble and learned Lord ask the draftsman to reconsider his phrase book to see whether there is a better phrase than "involved in"? It may be possible to make that term somewhat more precise.
Lord Wigoder: I can see nothing in subsections (2) or (3) that would prevent the criminal defence service under subsection (1) having the duty to protect the interests of the prosecuting solicitor, the Home Office pathologist, the witnesses, the jury and the judge. Surely the wording as it stands is too loose. If the noble and learned Lord is not happy with the phrase "suspected or accused", he might consider something along the lines of,
- "subject to criminal investigations or criminal proceedings"--
Lord Renton: I wish to pursue further the meaning of the word "involved". It seems to me that it could include victims of a crime, complainants, witnesses, and indeed people professionally involved. But I find it hard to believe that that is what is really intended.
3.45 p.m.
The Lord Chancellor: I am not persuaded by the arguments I have heard which suggest that "involved" is the wrong word. Although it is not our practice when in Committee to draft on our feet, I observe that no alternative has been put forward. However, I am well content to take back our discussions on these provisions to the parliamentary draftsman and invite him to consider whether any other expressions are more apt to fulfil the purpose.
I should perhaps have said when I was on my feet earlier that I did not speak to Amendment No. 149 because it is grouped separately. It may be more appropriate for the noble and learned Lord, after he has indicated his intentions in relation to this amendment, to speak separately to Amendment No. 149.
Lord Ackner: On the basis of my noble and learned friend's willingness to look again at that which has been criticised, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 147 and 148 not moved.]
Lord Ackner moved Amendment No. 149:
The noble and learned Lord said: I have already outlined my basis for justifying this amendment. Accordingly I beg to move.
Lord Windlesham: As my name is also attached to this amendment I shall say a few words about it. The amendment bears directly on the quality of service provided for defendants and others who are advised, assisted or represented by the criminal defence service. The three words, "advised, assisted, or represented", describe the functions of the new service. Importance should be attached to that because, despite the very frequent references in the debate so far, in the White Paper and in other published documents to a quality service--"this will be a service of high quality", "quality assurance" and so on--these are in most instances aspirations, and we should accept them as such. Of course it is intended that any new service set up by statute should function properly, and should be of good quality. However, the idea of assuring quality goes somewhat further. We need to look at the enforcement machinery which is devised to maintain standards of delivery.
Amendment No. 149 places a specific obligation on the legal services commission--under whose umbrella the CDS is to come initially--to keep under review the quality of the service provided by those who will have the responsibility for managing it and by its accredited contractors. Furthermore, the amendment provides sanctions by virtue of the power to withdraw accreditation should those standards not be met. The amendment goes further than the power to accredit, which we find elsewhere in the Bill; there is a sanction in the event of a falling short of the standard. It seems to me a reasonable enough provision. I hope that the Government will tell us whether they can accept it.
Lord Campbell of Alloway: Is there any other specific provision in the Bill in which it is expressed or implied that there should be some monitoring of the quality of the service? On the assumption that there is not, how will monitoring be carried out in practice by the Lord Chancellor's Department?
The Lord Chancellor: The amendment sets out what really is implicit in an accreditation scheme--that quality standards shall be kept under review and appropriate action taken if they are not met. One of the main objectives of the Bill is to ensure that the legal services provided by the commission are of high quality. This amendment provides me with the first opportunity this afternoon--I hope not the last in our discussions--to demonstrate to the noble and learned Lord, Lord Ackner, that this is a listening Government. I am grateful to him for suggesting the amendment and I am happy to accept it
In answer to the noble Lord, Lord Campbell of Alloway, when the Government bring forward amendments to this effect, in line with the undertaking that I have given, I shall indicate how we would anticipate that monitoring will operate in practice. Meanwhile, on that basis, I invite the noble and learned Lord to withdraw his amendment.
Lord Ackner: I am most grateful to my noble and learned friend the Lord Chancellor. This shows that the shorter an amendment the more effective it is. Accordingly, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Ackner moved Amendment No. 150.
Page 8, line 43, at end insert--
("( ) The Commission shall keep under review, or secure that others keep under review, the quality of service provided by all persons or bodies accredited under subsection (5); and the Commission shall withdraw accreditation, or secure that others withdraw accreditation, from any person or body who fails to provide a satisfactory quality of service.").
After Clause 12, insert the following new clause--
(" .--(1) The Commission shall issue a code of conduct ("the Defender's Code") for persons or bodies providing services as part of the Criminal Defence Service ("defenders").
(2) No defender shall be accredited under section 12(5) unless--
(a) where the defender is an employee of the Commission or an employee of a body funded by the Commission, the defender's contract of employment includes the Defender's Code; or
(b) in any other case, the defender is bound by other professional rules of conduct which are as least as comprehensive and as stringent as the Defender's Code.
(3) The Defender's Code shall include rules about--
(a) the defender's duty to the court;
(b) the defender's duty to protect the interest of the individual concerned, including the defender's duty to decline or cease to act because the defender has insufficient skill, experience, competence or available time;
(c) the defender's duty to avoid conflicts of interest and to act with independence, integrity and freedom from external pressures;
(d) the defender's duty not to discriminate because of race, sex or other unjust reason; and
(e) the defender's duty of confidentiality.
(4) Before the Commission issues a Defender's Code, it shall prepare and publish a draft of that Code and consider any representations about the draft; and it may modify the draft accordingly.
(5) Subject to subsection (4), the Commission shall submit the draft Defender's Code to the Lord Chancellor who shall lay it before both Houses of Parliament; and if the draft is approved by resolution of each House of Parliament, the Commission shall issue the Defender's Code in the form of the approved draft which shall come into force on such day as the Lord Chancellor shall by order appoint.
(6) The Commission may from time to time revise the whole or any part of the Defender's Code and subsections (4) and (5) shall apply to any revised Code as they apply to the first draft.").
The noble and learned Lord said: I shall do my best to continue to be brief because the harmony in regard to the last amendment should spread swiftly to this one.
The amendment is designed to provide a code for the defence provider. It is based on the Bar's code of conduct in general terms and has been drafted by the Criminal Bar Association. It is intended to ensure that
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