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Lord Thomas of Gresford had given notice of his intention to move Amendment No. 156:
The noble Lord said: I do not propose to move this amendment. I have not as yet cited America and I consider that there are many matters which will have to be looked at again. Therefore, I shall be coming back to this series of amendments at the Report stage.
[Amendment No. 156 not moved.]
[Amendments Nos. 157 to 161 not moved.]
Clause 13, as amended, agreed to.
[Amendments Nos. 162 to 169 not moved.]
Lord Ackner moved Amendment No. 170:
The noble and learned Lord said: This matter was referred to during the debates that we have just had as being the right point at which to consider the extent to which a member of the public who requires to be assisted in a defence can be compelled to have a public defender, so that his choice which presently exists, as to how he is defended is taken away from him.
There has been sufficient discussion on this subject for me merely to say at this stage that I wish to move the amendment.
The Deputy Chairman of Committees (Baroness Lockwood): I must point out that if this amendment is agreed to, I cannot call Amendments Nos. 171 to 176 inclusive under the pre-emption rule.
Viscount Bledisloe: In his extremely helpful reply on the previous amendment, the noble and learned Lord indicated his intention to prescribe use of the public defender service only in a very limited number of cases. However, in his reply to the noble Lord, Lord Hutchinson of Lullington, he accepted that as matters presently stand, a future Lord Chancellor could say that the defender service was to be the only recourse available to the accused over the whole spectrum of cases. That is the right answer in the light of subsection (6)(c). Under that provision a future Lord Chancellor could say that in all cases except murder an accused may select only a member of the group of salaried lawyers. It is that mischief that rightly concerns a large number of Members of the Committee. I hope that the noble and learned Lord will be able to tell the Committee that he will in due course at least amend subsection (6) so that it could not have that wide and highly undesirable effect.
Baroness Scotland of Asthal: I did not think that I should be moved to contribute to the debate, either in relation to the previous amendment or this one. However, for the past few moments I have found myself somewhat troubled. That is because I am in sympathy with many of
Choice is at the core of this legislation. The Bill deals with access to justice and the improvement of people's ability to receive appropriate representation. Part of our debate has related to those who are currently at the independent Bar and solicitors not being subject to the pressures involved in accepting state-funded cases.
That is not entirely correct. Independent prosecutors already feel pressure from the CPS and those who instruct them to behave in a certain way. There are approved lists. If people do not comply with the standards that are set for them, they may be dropped from the list. One of the reasons for being dropped is not complying with the way in which those who prosecute see the management of the case. Therefore, independence is already under threat, and we do not yet have a defence system.
If we do not strengthen this provision, I very much fear that choice, which is so important and is at the centre of the Bill, will evaporate.
Lord Thomas of Gresford: Amendment No. 173, grouped with this amendment, stands in my name. The amendment purports to exclude from the Bill sub-paragraphs (a), (b) and (c) of subsection (6). The reason has already emerged in my remarks on the previous amendment.
The right to representation is set out in Schedule 3. As I indicated earlier, it is not a right of representation which exists as the right of an individual. It arises only when, in the discretion of the court or the commission, that right of representation is granted. So it requires a decision by the court or the commission to grant the right. Paragraph 6 of Schedule 3 sets out the criteria for the grant of that right. The paragraph states:
I now turn to the matters that are the subject of my amendment. Clause 14(6) again includes a power, in sub-paragraphs (a), (b) and (c), for the Lord Chancellor to make regulations in prescribed circumstances that,
Baroness Kennedy of The Shaws: I wish to put a question to the Lord Chancellor about choice. A pilot scheme is currently taking place in Scotland in relation to salaried public service lawyers. Locally in Edinburgh, where the scheme is operating, it is known as "trial by astrology", because those who were born in January and February are required to have a lawyer from the public service and are not allowed a lawyer under legal aid from any other source. The aim is to see how the pilot scheme operates. My question to the noble and learned Lord is this. Will the pilot schemes under his jurisdiction operate in the same way? Will they prevent the operation of choice, which is the subject of our concern; or will they, too, require persons arrested who were born under a certain star sign to enter into the public defender system?
Lord Goodhart: My silence on the previous group of amendments was not intended to indicate any lack of support for them but was a recognition of the fact that they were already receiving more than adequate support from these Benches. In this case, although I strongly believe that there should not be a salaried defender service, if there is to be one, when it comes to representation it is essential that the right to choose to be defended by someone who is not a member of that service should not be excluded.
Clause 14(5) seems to me to include a principle of the highest importance. It is that:
The amendment in the names of my noble friend Lord Thomas of Gresford and myself substitutes for paragraphs (a), (b) and (c) a right to prescribe by regulations that the defendant may not seek services from someone who is not accredited or someone who is not prepared to accept fees on a basis of reasonable comparability. That is acceptable, as are paragraphs (d) and (e). However, I regard paragraphs (a), (b) and (c) of subsection (6) in their present form as being entirely unacceptable.
Lord Renton: Several Members of the Committee have referred to subsection (6)(a), (b) and (c). However, we should invite the attention of the noble and learned Lord the Lord Chancellor to paragraph (e). It seriously
Page 9, line 15, leave out from beginning to second ("or").
Page 10, line 7, leave out subsection (6).
"Any question as to whether a right of representation should be granted shall be determined according to the interests of justice".
But in deciding what are the interests of justice, a restrictive series of "factors" are set out in sub-paragraph (2) under headings (a) to (e), which, under sub-paragraph (3),
"The Lord Chancellor may by order amend ... by adding new factors or varying any factor".
So the right of representation is considerably prescribed by the provisions in Schedule 3.
"the right ... is not to apply in cases of prescribed descriptions",
and that the,
"right is not to include a right to select a representative of a prescribed description".
So the regulations may prevent the choice of a lawyer whom the accused person wishes to act for him. And under those regulations the right may be,
"to select only a representative of a prescribed description".
So the limitations upon this so-called right of representation are great. In my submission, the Lord Chancellor ought to be satisfied with the
limitations imposed in the schedule and not seek to cut the representation down even further by means of sub-paragraphs (a), (b) and (c) of subsection (6).
"An individual who has been granted a right to representation ... may select any representative or representatives willing to act for him";
that is, the right to a lawyer of one's own choice, which features clearly in Article 6 of the European Convention on Human Rights. In those circumstances, paragraphs (a), (b) and (c) of Clause 14(6) go far beyond anything that is legitimate to be provided for by regulations. Under those paragraphs it would be possible to exclude the right to employ anyone other than a salaried defender. It seems to me that that would be extremely dangerous and would represent a serious risk of infringing the European convention.
6.30 p.m.
"that right is not to include a right for an individual to select a representative if another representative has been previously selected by him".
It is just possible that the person who has already been chosen may turn out to be unsatisfactory in one way or another. I need not elaborate on the various possibilities. Surely there must be the right to change one's representative if one feels strongly about it. Therefore I suggest that Clause 14(6)(e) bears that criticism.
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