Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Thomas of Gresford moved Amendment No. 104:

Page 10, line 11, at end insert ("except itself providing representation").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 105:

Page 10, line 11, at end insert--
("(3A) The Lord Chancellor--
(a) shall by order make provision about the payments which may be made by the Commission in respect of any representation provided by non-contracted private practitioners, and
(b) may by order make any other provision requiring the Commission to discharge the function in subsection (3) in accordance with the order.
(3B) For the purposes of subsection (3A)(a) representation is provided by a non-contracted private practitioner if it is provided, otherwise than pursuant to a contract entered into by the Commission, by a person or body which is neither--
(a) a person or body in receipt of grants or loans made by the Commission as part of the Criminal Defence Service, nor
(b) the Commission itself or a body established or maintained by the Commission.
(3C) The provision which the Lord Chancellor is required to make by order under subsection (3A)(a) includes provision for reviews of, or appeals against, determinations required for the purposes of the order.").

[Amendment No. 106, as an amendment to Amendment No. 105, not moved.]

On Question, Amendment No. 105 agreed to.

The Lord Chancellor moved Amendment No. 106A:

Page 10, line 18, leave out ("(2)") and insert ("(1)").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 107:

Page 10, line 18, leave out ("making payments to") and insert ("funding representation by").

On Question, amendment agreed to.

16 Feb 1999 : Column 583

The Lord Chancellor moved Amendment No. 108:

Page 10, line 27, leave out ("only one representative or").

The noble and learned Lord said: My Lords, Amendment No. 108 is grouped with Amendments Nos. 109 to 113. They relate to Clause 14(6) of the Bill, which gives power to make regulations restricting a defendant's free choice of representative in prescribed circumstances.

The issue of choice was debated at some length in Committee on 26th January. Concern centred upon salaried defenders and whether the provisions of Clause 14(6) would be used to restrict choice to salaried defenders only. That is not my intention, and I have tabled Amendment No. 111 to make that clear on the face of the Bill.

I also undertook to consider whether the drafting of subsection (6) could be clarified, and Amendments Nos. 108 to 110 and Amendment No. 113 are the result. It may be helpful to your Lordships if I first set out the intentions behind subsection (6), dealing with these drafting amendments as I go. I will take the five subsections in order of significance, rather than alphabetical order.

The White Paper, Modernising Justice, at paragraphs 6.12 to 6.24 and 6.28 to 6.30, set out the Government's plans for developing and implementing contracts for criminal defence services; the way we expect those contracts to be structured; and the relationship between contracts and the defendant's choice of representative. Our firm view is that contracting, plus a salaried element, offers the best means of providing high quality services for suspects and defendants while securing the best possible value for money.

As I explained in Committee, Clause 14(6)(c) is fundamental to those plans. It will allow the defendant's choice to be limited to any lawyer with a current contract with the legal services commission, plus a salaried defender. The scope of regulations under this subsection will be extended gradually as contracts for various types of work are piloted and rolled out generally. The first contracts will cover advice and assistance at the police station, including a share of the duty solicitor work at the local police stations and magistrates' courts. These will be extended to cover first representation in magistrates' court cases; then the work of litigators in most Crown Court cases; and then perhaps advocacy in those cases. Once contracts provide adequate coverage at each level, regulations under Clause 14(6)(c) will provide that the suspect or defendant may no longer choose a non-contracted representative.

Our intention is to ensure that suspects and defendants generally have a choice between several contracted firms, possibly plus a salaried defender. In the first round of contracting, we intend to guarantee a contract to all firms which meet quality standards. I would expect most to continue to win contracts thereafter if they continue to meet the quality standards and are prepared to participate in the duty solicitor scheme. This is important both to sustain the quality of this important service by ensuring that it does not become the preserve of firms which cannot win more lucrative contracts and

16 Feb 1999 : Column 584

as a key part of our plans for providing continuity of representation from the police station to and through the courts.

Separate regulations under Clause 14(6)(c) will provide for a more limited choice in categories of case--for example, fraud trials--which are typically very expensive cases and require special skills, experience and sometimes technology. In these cases, the defendant's choice will be restricted to members of a specialist panel; but this would be a choice between quality-assured lawyers who had demonstrated both the necessary competence and administrative systems to deal with these specialised and weighty cases.

I have already mentioned continuity of representation. Regulations under Clause 14(6)(e) will establish a presumption that, having once chosen a representative, a defendant may not choose to replace that representative with some other, except for good reason. The intention is to reduce delay and the cost involved in instructing a new representative. Regulations under this subsection will define what constitutes an acceptable reason for a change; for example a conflict of interest or a clear breakdown in the lawyer-client relationship. Amendment No. 110 clarifies the drafting of the subsection.

Clause 14(6)(d) deals with the number of representatives that may be chosen in a given case. Again, Amendments Nos. 108 and 109 seek to clarify the drafting. Most cases start at the police station, where the suspect will either choose a named, contracted solicitor, or offer no preference and be advised by the duty solicitor, who on any given day might be a contracted solicitor or a salaried defender. If the case proceeds to trial in the Crown Court, there will be an opportunity to exercise a second choice to select an advocate. The defendant might choose a barrister in private practice, a salaried defender or, if the solicitor-representative was qualified and willing to act in the Crown Court, that solicitor-advocate who might also be a salaried defender. As now, it would be the solicitor's duty to advise the client about the options and instruct the advocate. Initially, the choice of advocate would encompass any barrister willing to act in the case. In due course, if contracts with barristers can be developed successfully, choice may be limited under Clause 14(6)(c) to a barrister subject to such a contract.

Regulations under Clause 14(6)(d) will also prescribe the rare situations in which two advocates would be permitted, for example serious fraud trials. Closely linked to this will be regulations under subsection (6)(b) which will prescribe the limited circumstances in which the defendant will be entitled to select a Queen's Counsel.

Finally, there is Clause 14(6)(a) which provides for regulations, subject to the affirmative approval procedure, which remove the defendant's right to a choice altogether. The example I gave in Committee of the exceptional circumstances in which subsection (6)(a) might be used related to cross-examination of a rape victim on behalf of a defendant who was otherwise representing himself. In this and possibly a few other exceptional circumstances, it may be appropriate to

16 Feb 1999 : Column 585

assign an advocate on something like a "dock brief" basis so that a trial can proceed without delay. It will be a random matter whether the advocate who happens to be available at court is a salaried defender, a solicitor advocate or independent barrister. If more than one advocate is available, then the defendant will be able to choose his representative from among those available advocates. The circumstances prescribed under Clause 14(6)(a) will be rare indeed.

Amendment No. 113 which removes Clause 14(7) is consequential upon Amendment No. 107, which was debated earlier. I now turn to Amendment No. 111. This establishes on the face of the Bill that regulations under Clause 14(6) may not provide that a defendant may choose only a salaried defender. That was never my intention under the key Clause 14(6)(c) or under Clause 14(6)(b). The amendment precludes regulations under any part of Clause 14(6) which specifically restrict choice to salaried defenders.

I turn now to Amendment No. 112 proposed by the noble Lords, Lord Thomas of Gresford and Lord Goodhart. If both my Amendment No. 111 and this amendment stand, the new subsection in Clause 14 would read as follows:

    "( ) Regulations under subsection (6) may not provide that an individual may select only a person employed by the Commission or may not select a non-contracted private practitioner who is accredited to provide services of the kind required".
I cannot accept that amendment because it would undermine the approach I have just explained. We are giving people a generous choice but not an absolutely unrestricted choice. The amendment would prevent regulations under Clause 14(6)(c) which gradually limited choice to contracted and salaried providers. Contracting, in the longer term for most or all criminal defence services, is central to the reforms envisaged by this part of the Bill. I firmly believe that contracting represents the most cost-effective mechanism for imposing quality requirements and monitoring standards. Accreditation is just one part of this.

Accreditation relates to personal competence in limited circumstances, but does not address other aspects of quality standards which we would want to see in a contract, such as managerial supervision and internal peer review. But there is more to it than that. Contracting also offers the prospect of sustained and improving value for money, through reduced case-by-case bureaucracy, earlier and more predictable payment and, in time, a limited element of competition. More specifically, it is essential to our plans for ensuring that all firms participate in the duty solicitor scheme; and for providing, wherever possible, continuity of representation throughout the case.

I apologise for the length with which I have dealt with each part of Clause 14(6) but the ability to limit the choice of those needing representation in the ways described is essential to secure quality representation at a reasonable cost. I therefore ask the noble Lords, Lord Thomas of Gresford and Lord Goodhart, to withdraw their amendment. I beg to move.

On Question, amendment agreed to.

16 Feb 1999 : Column 586

5.30 p.m.

The Lord Chancellor moved Amendments Nos. 109 and 110:

Next Section Back to Table of Contents Lords Hansard Home Page