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Lord Borrie: The noble and learned Lord, Lord Ackner, has, as one would have expected, very carefully and comprehensively drafted something which would be suitable as a code of conduct--or, rather, a list of requirements for such a code--for those engaged by the criminal defence service to provide criminal defence services. He has covered all the vital matters concerning obligation to the court, integrity, confidentiality and so on. I have only two perhaps relatively minor queries. The noble and learned Lord has, in my view, been extremely constructive in inserting this amendment as part of the provisions concerned with what is, after all, a controversial set of proposals concerning the criminal defence service.
My first query is this. The code is intended for those who are providing a criminal defence service as part of that service. It would presumably be undesirable if in some way members of the Bar or the solicitors' profession who were providing such services independently were under a different set of rules or there were in any way variations between them. In the longer term, does the noble and learned Lord want all people who represent alleged criminals in our criminal courts to be under the same code, or under the same code with statutory backing, or is he merely pinpointing a problem which could arise if variations occur?
My second query is this. The compendious term for those who are engaged by the criminal defence service is rather inconvenient; hence, I suppose, the noble and learned Lord has seized on the word "defender". I do not want to make too much of a meal of it--certainly not in the presence of a number of Scottish lawyers, such as the noble and learned Lord, Lord Jauncey of Tullichettle, and others--but the term may be slightly inconvenient because in Scottish civil litigation the word "defender" means "defendant" in English terms. The Bill applies mainly to England, but certain parts of it also apply to Scotland. It might be mildly inconvenient or inappropriate if the selfsame word were used for entirely different purposes.
Lord Windlesham: The Law Society also supports the principle of a defenders' code for those employed by the criminal defence service, and therefore its name can be added to those bodies referred to by the noble and learned Lord, Lord Ackner, in moving this amendment.
We can probably all agree that there are four key elements which should be covered in any code of conduct: first, independence for the professional judgment of the lawyer; secondly, sufficient freedom of choice for the individual; thirdly, equal competence between prosecution and defence, which is easy to proclaim but sometimes very difficult to achieve; and, fourthly, respect for the rule of law. Where services are provided by an employee of the state, there should
surely be standards which the lawyers are professionally and legally obliged to put before the interests of the employer.In this connection the Law Society has drawn attention to the situation in the United States where the American Bar Association has set out standards for representation, both by public defenders and by those providing services on a contract basis. As so often is the case in America, the aspiration does not always meet the reality. As those standards do not have the force of law in many states they frequently have not been observed by public defenders' offices. One of the main features--and perhaps I may ask the Lord Chancellor to comment on this, either now or later--that has arisen is that case-loads are often too heavy. The American Bar Association is supporting case-load limits, and is trying to provide in a code a limitation on the weight of work carried by public defenders.
That may be a relatively narrow point. If the Lord Chancellor does not feel able to comment on it now, as may well be the case, perhaps he would write to me and also to the Law Society with his comments on ways of limiting case-loads.
4 p.m.
Lord Thomas of Gresford: If it reassures the noble Lord, Lord Borrie, the term "public defender" is the one customarily used in the United States and in Australia in dealing with people who are employed by the state to defend accused persons.
There is a prosecutors' code. That code, which is published and is well-known, applies both to those who are employed by the Crown Prosecution Service and who conduct prosecutions in the lower courts and to those who are instructed to prosecute as independent counsel. The code applies across the board. In those circumstances, I see no reason why there should not similarly be a defenders' code which would apply across the board. It would apply whether a person was independent or whether he was employed under the terms of these proposals.
Lord Campbell of Alloway: I totally accept that the code should apply right across the board and that there should be a prosecutors' code which also applies right across the board. Surely the terms of the code, which does not have, as such, legal efficacy, ought to be included in the statute or the clause should be included in the statute. I should be very grateful to have the advice of the noble and learned Lord, Lord Simon, on this point, because so often I have heard him say that one should not clutter up a statute.
Lord Mishcon: I rise only with a query because of the contribution usefully made, as usual, by the noble Lord, Lord Windlesham. Would it not be a precedent, and an unfavourable one, if a statute were to impose on solicitors and counsel privately instructed a code of conduct covering matters which are usually left to their professional bodies to cover? One can well understand that when the Government employ a lawyer or a barrister as an employee one would be entitled to look to an Act of Parliament to see the terms upon which that
employment took place and the code of conduct which related to it. I ask my noble and learned friend the Lord Chancellor to consider what precedent would be created not only for this profession but for other professions, which are already adequately covered with regard to their ethical codes by their own bodies.
The Lord Chancellor: I agree in principle that it is most important that the criminal defence service, including any salaried defenders engaged by the legal services commission, should uphold the highest standards of the legal profession. Defendants are entitled to expect no less. It is certainly no part of our plans that any service provided by salaried defenders should be second-rate. On the contrary, we believe that in those cases where salaried defenders may be used--perhaps where there might otherwise be gaps in the provision of defence services--they will provide a bench-mark of quality and cost against which other defence lawyers can be judged.
The noble Lord, Lord Windlesham, asked about a problem on the other side of the Atlantic concerning case loads being too heavy. Any provision in that regard would not be appropriate for a code of ethical standards for defending criminal lawyers. However, I shall certainly respond to his invitation and write to him on this subject. Nor do I think, at first blush at any rate, that what the noble and learned Lord, Lord Ackner, is prescribing in his proposed new clause would entail that a stricter standard was being applied to such salaried defenders than is already applied by the Bar or solicitors in independent practice who engage independently in the courts in this class of work.
The noble Lord, Lord Mishcon, called attention to an important point. It would be curious to put on the face of the Bill, by a side-wind from prescribing a code of conduct for salaried defenders, rules which would statutorily override the existing rules of the professions. I tend to think that the closest analogy is probably with the Crown Prosecution Service, which is already subject to a code issued by the Director of Public Prosecution and laid before Parliament as part of the DPP's annual report to my right honourable and learned friend the Attorney-General.
The sense of what I am saying is that I agree in principle with the noble and learned Lord that the commission should be required to issue a similar code. If the noble and learned Lord is content, I would undertake to move a government amendment at the Report stage. However, that said, if the noble and learned Lord is persuaded that it would be right to withdraw his amendment on that basis, I hope that he will not abstain from saying anything that might be of assistance to us arising out of the specific points made in the course of our discussion on his amendment.
Lord Ackner: I am grateful to my noble and learned friend for his indication of sympathy and willingness to take whatever is the appropriate action in the light of this amendment. I am not sure that either the noble Lord, Lord Borrie, or the noble Lord, Lord Mishcon, has taken the point that the private practitioner is already covered
by his code of conduct. The Bar, acting in its private capacity and not as an employee, has its code of conduct. The content of this clause has been largely modelled on it.Subsection (2)(a) provides what should occur,
- "where the defender is an employee of the Commission or an employee of a body funded by the Commission".
- "or ... in any other case, the defender is bound by other professional rules of conduct which are at least as comprehensive and as stringent as the Defender's Code".
Amendment, by leave, withdrawn.
Clause 13 [Advice and assistance]:
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