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Lord Goodhart: My Lords, I am disappointed but hardly surprised at the reaction of the noble and learned Lord the Lord Chancellor to Amendment No. 85. I have more comfort from his reaction to Amendment No. 144.
I had felt that Clause 10(2)(c) created a rather slender basis for the possible introduction of a privately funded CLAF scheme and that, in particular, it did not get over the problem that, under the common law, such a scheme might well face problems of unenforceability through champerty and maintenance whatever Clause 10(2)(c) authorised because it does not, I believe, authorise a change in the common law.
That being so, as the noble and learned Lord the Lord Chancellor knows, both the Bar Council and the Law
Society are giving serious consideration to the development of CLAF. If it looks to be financially viable and might be attractive to a financial organisation, Amendment No. 144 would at least make it possible to go ahead with it. I am therefore grateful to the noble and learned Lord the Lord Chancellor for what he said on this amendment. With regret, I shall wave farewell to the idea of a publicly-funded CLAF by begging the leave of the House to withdraw Amendment No. 85.Amendment, by leave, withdrawn.
Clause 12 [The Criminal Defence Service]:
The Lord Chancellor moved Amendment No. 86:
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 87:
The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments No. 87 and speak to Amendments Nos. 88 to 94, Amendment No. 100, Amendments Nos. 114 to 121, and Amendments Nos. 139 and 140.
These amendments deal with the range and scope and the procedure for grant of representation. In particular, the amendments clarify the procedure for grant of representation in additional categories of case that the Lord Chancellor may prescribe under Clause 12(3)(f), and limit the power of the Lord Chancellor to transfer responsibility for grant to the legal services commission to those cases.
We have already discussed Amendment No. 86 which sets out the purpose of the criminal defence service as securing that individuals involved in criminal investigations or criminal proceedings have access to such advice assistance or representation as the interests of justice require. That duty arises in the circumstances set out in Clause 13(1)(a), or circumstances prescribed by the Lord Chancellor under (1)(b) for advice and assistance, and Clause 14 for representation.
Paragraph 1 of Schedule 3 sets out the individuals to whom the right of representation may be granted and Amendment No. 115 extends the right to all individuals who would come within Clause 12(3).
Amendment No. 115 also extends criminal defence services to private individuals who successfully bring private prosecutions before the magistrates' court, in circumstances where the conviction is appealed to the Crown Court, for the purpose of resisting that appeal. Specific courts are no longer named so that criminal proceedings before any body, such as the Parole Board, would be covered by the word "court" under Schedule 3. Amendment No. 100 brings Schedule 3 into effect
In deciding whether it is in the interests of justice for a right of representation to be granted, the criteria in paragraph 6(2) of Schedule 3 must be taken into account. As presently drafted, the factors are expressed in terms which are applicable to courts. Amendments Nos. 119 to 121 generalise the wording of the criteria in paragraph 6(2) so that they are not confined to court based proceedings. For example, paragraph 6(2)(a), as amended, refers to whether the person concerned is in danger of losing his liberty as a result of the proceedings, without specific references such as "accused" and "sentence". This will enable the factors to be equally applicable to other criminal proceedings such as Parole Board reviews of discretionary life sentences, or sentences of young offenders detained at Her Majesty's pleasure.
Amendments Nos. 116 to 118 amend paragraph 4 of Schedule 3 to reflect the Lord Chancellor's undertaking, in response to Amendment No. 180 of the noble and learned Lord, Lord Ackner, in Committee, reported in Hansard for 26th January 1999, [cols. 926-7] to clarify our intentions for the procedure for grant of representation.
In substance the effect of paragraph 4 of Schedule 3 as it stands at present is to carry into the present Bill powers similar to those contained in Section 20(9) of the Legal Aid Act 1988, which allows the Lord Chancellor to transfer to the Legal Aid Board the power to grant legal aid for representation in criminal cases by providing that,
The other amendments in this group are minor drafting amendments. Amendments Nos. 88 to 90 and 92 to 94 are intended to clarify that the criminal defence service is for individuals subject to criminal investigations and proceedings, and not, as was feared by the noble Lords, Lord Wigoder and Lord Renton, judges, Home Office pathologists, and others.
Amendment No. 91 deals with the rare situation where a convicted person has died and approval is given to someone else to proceed with an appeal on behalf of the deceased person. This situation is expressly retained within the scope of the clause.
Amendment No. 90 simply corrects the Bill to show the relevant section of the Extradition Act. Amendment No. 140 removes "criminal investigations" from the interpretation Clause 24. Amendment No. 87 is a consequential drafting amendment.
Finally, the giving spirit of Committee is continued in Report. The Lord Chancellor is of the view that regulations made under paragraph 5 of Schedule 3 should be subject to affirmative resolution, as this paragraph provides for rights and avenues of appeal against a decision to refuse or withdraw a right to representation. I invite noble Lords to approve Amendment No. 139, which achieves this. Accordingly I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 88 to 94:
The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 88 to 94 en bloc.
On Question, amendments agreed to.
Lord Falconer of Thoroton moved Amendment No. 95:
The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Page 8, line 30, leave out from ("of") to end of line 32 and insert ("securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require.").
Page 8, line 33, leave out ("this Part") and insert ("subsection (1)").
"In the event of the Lord Chancellor making an order under section 3(4) as respects the function of granting representation under this Part for the purposes of proceedings before any court, the Board shall be competent as respects those proceedings, on an application made for the purpose".
In the event the power has never been used. Decisions about granting representation in criminal proceedings will, in future, turn solely on the interests of justice. I cannot envisage circumstances in which it would be necessary to take that decision away from the courts and Amendments Nos. 117 and 118 reflect that by removing the Lord Chancellor's power to make regulations to provide for the legal services commission to have power to grant or withdraw rights of representation and for the commission to delegate those powers. However, Clause 12(3)(f) gives the Lord Chancellor power to extend the scope of "criminal proceedings" to other circumstances not covered in subsection (3)(a) to (e). The Lord Chancellor gave examples in Committee of the use of this power to extend "criminal proceedings" to hearings which might not be before a court, such as Parole Board hearings. Amendment No. 116 limits the power of the Lord Chancellor to transfer responsibility for grant to the legal services commission to criminal proceedings prescribed under this paragraph.
Page 8, line 37, after ("proceedings") insert ("before any court").
Page 8, line 38, leave out ("for dealing with an offender for an offence or") and insert ("before any court for dealing with an individual convicted of an offence, for dealing with an individual").
Page 8, line 39, leave out ("offender under section 6") and insert ("individual under section 9").
Page 8, line 44, at end insert--
("( ) proceedings on an appeal brought by an individual under section 44A of the Criminal Appeal Act 1968,").
Page 8, line 45, leave out ("supervision orders") and insert ("a supervision order in respect of an individual").
Page 9, line 1, after ("contempt") insert ("committed, or alleged to have been committed, by an individual").
Page 9, line 2, after ("proceedings") insert ("concerning an individual, before any such court or other body,").
Page 9, line 8, at end insert ("; and any system of accreditation shall include provision for the monitoring of the services provided by accredited persons and bodies and for the withdrawal of accreditation from any providing services of unsatisfactory quality.").
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