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Lord Thomas of Gresford: My Lords, I do not necessarily oppose contracts with the Bar--if only I could understand how they are to come about. I will look at the leading authority in the industrial tribunal from the 1970s about barristers' clerks to see if I can get any guidance from that.
The Lord Chancellor: My Lords, the noble Lord could look up a basic textbook on contracts.
Lord Thomas of Gresford: My Lords, of course I am a very simple criminal lawyer. That is my problem. The Lord Chancellor will be the head of the organisation which effectively holds the whip hand as the other contracting party--through the criminal defence service, and so on--but when we are looking at it in this embryonic stage we are entitled to look to the Lord Chancellor and ask him how he sees it actually working. What sort of structures can we consider and address to see whether or not they are viable? What should be our attitude? If I were to stand here and put forward some sort of structure, your Lordships would be very quickly bored and say, "Please, do this somewhere else". However, I think that we are entitled to have this kind of information so we know exactly where we are going. The noble Lord, Lord Carlisle of Bucklow, is quite right that there is no aggression in what I am saying. I am not anti-contract or anything else. I just want to know where we are. I do not propose to press the amendment to a vote today but I want to have some answers before we come back to it again. For the moment, I beg leave to withdraw the amendment.
Amendment No. 112, as an amendment to Amendment No. 111, by leave, withdrawn.
On Question, Amendment No. 111 agreed to.
The Lord Chancellor moved Amendment No. 113:
On Question, amendment agreed to.
Schedule 3 [Criminal Defence Service: right to representation]:
The Lord Chancellor moved Amendments Nos. 114 to 121:
On Question, amendments agreed to.
The Lord Chancellor moved Amendment No. 122.
Page 10, line 32, leave out subsection (7).
Page 56, line 9, after second ("of") insert ("any kind of").
Page 56, line 10, leave out from ("to") to end of line 23 and insert ("an individual such as is mentioned in relation to that kind of proceedings in section 12(3).
(2) A right of representation for the purposes of criminal proceedings may also be granted to an individual to enable him to resist an appeal to the Crown Court otherwise than in an official capacity.
(3) In this Schedule "court" includes any body before which criminal proceedings take place.").
Page 57, line 6, leave out from ("of") to ("and") in line 7 and insert ("any one or more of the descriptions of proceedings prescribed under section 12(3)(f),").
Page 57, leave out lines 8 to 12.
Page 57, line 16, leave out from ("make") to ("such") in line 20.
Page 57, line 31, leave out from ("individual") to ("serious") in line 33 and insert ("would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer").
Page 57, line 35, leave out ("the case") and insert ("any matter arising in the proceedings").
Page 57, line 39, leave out from ("whether") to end of line 41 and insert ("the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual,").
Before Clause 15, insert the following new clause--
(".--(1) The Commission shall prepare a code of conduct to be observed by employees of the Commission in the provision of services as part of the Criminal Defence Service.
(2) The code shall include--
(a) duties to avoid discrimination,
(b) duties to protect the interests of the individuals for whom services are provided,
(c) duties to the court,
(d) duties to avoid conflicts of interest, and
(e) duties of confidentiality.
(3) The Commission may from time to time prepare a revised version of the code.
(4) Before preparing or revising the code the Commission shall undertake such consultation as appears to it to be appropriate.
(5) After preparing the code or a revised version of the code the Commission shall send a copy to the Lord Chancellor.
(6) If he approves it he shall lay it before each House of Parliament.
(7) The Commission shall publish--
(a) the code as first approved by the Lord Chancellor, and
(b) where he approves a revised version, either the revisions or the revised code as appropriate.
(8) The code, and any revised version of the code, shall not come into force until it has been approved by a resolution of each House of Parliament.").
The noble and learned Lord said: My Lords, during the Committee stage on 26th January (at cols. 880 to 892 of Hansard) the noble and learned Lord, Lord Ackner, proposed a new clause to set out a defenders' code. I agreed 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. I said then, and still maintain, that defendants are entitled to no less. It is certainly no part of our plans that any service provided by salaried defenders should be second rate. I believe that salaried defenders will provide a bench-mark of quality and cost against which other defence lawyers can be judged.
In Committee I undertook to move a government amendment to introduce a code for salaried defenders. I drew the analogy with the code for Crown prosecutors issued by the Director of Public Prosecutions and laid before Parliament as part of his annual report to my right honourable and learned friend the Attorney-General. This amendment will ensure that salaried defenders employed by the legal services commission are subject to a comprehensive code guaranteeing minimum standards of professional behaviour. Other defenders paid by the commission, such as barristers or solicitors in private practice, would not be bound by the code but will be bound by their own professional rules.
I have set out in an unambiguous way what must be included within the code. The code shall include:
I hope that the amendment demonstrates that I intend the highest ethical standards to apply, and to be seen to apply, to lawyers who may be employed by the commission. I beg to move.
Lord Renton: My Lords, I wonder whether the noble and learned Lord the Lord Chancellor would be so good as to give us some idea of the conflicts of interest which are mentioned in subsection (2)(d). Taking subsections (5) and (6) together, may we be quite sure that the code will not come into operation until it has been approved by the Lord Chancellor and by both Houses of Parliament?
The Lord Chancellor: My Lords, as to the noble Lord's second point, that is certainly my intention. As to his first point, which concerns duties to avoid conflicts of interest, the one that most instantly comes to mind is where two defendants are being tried in the same trial and by reason of the nature of their defences there is a conflict between the two and it would be
Lord Wigoder: My Lords, I am sure the noble and learned Lord the Lord Chancellor will accept that I rise to speak in no adversarial spirit but simply to ask one or two questions as I am not clear as to what the answers might be.
A code is clearly desirable and necessary. I have no particular comments to make about the code as set out in subsection (2) of the amendment. However, drafting a code is not all that difficult. Indeed, many of us in our time have drafted codes of professional conduct for various legal bodies. The problem arises when one comes to enforcing the code. It is about that matter that I want to ask some questions and I have no ulterior motive in doing so.
I take "duties to avoid conflicts of interest" as an example. With a salaried defender, whose task will it be to detect whether a fellow employee is suspected of a conflict of interest? If someone detects it or suspects that there is one, to whom will he report it? When he reports it, it presumably goes through a chain. To whom will it go? Where does the chain finish? Who will then adjudicate upon the issue as to whether the salaried defender has been in breach of his duty to avoid a conflict of interest? What sanctions will be available against a salaried defender who breaches the code in that or any other way? Is it to be a question of an employer-employee relationship and a matter eventually perhaps of an industrial or employment tribunal if someone is wrongfully dismissed; or is it to go a rather different way; and if so, how will it get there? In other words, will a solicitor salaried defender find that in some way or other the matter will reach the Law Society and it will be for its disciplinary body to deal with the issue? If he is a barrister salaried defender, will it in some way be a matter that will reach the Bar Council or his Inn of Court?
I should be grateful for assistance on these matters. As I say, drafting a code is one thing but making sure that it works is absolutely crucial.
"(a) duties to avoid discrimination,
(b) duties to protect the interests of the individuals for whom
services are provided,
(c) duties to the court,
(d) duties to avoid conflicts of interest, and
(e) duties of confidentiality".
The commission will prepare the code under this guidance. The code will be published and approved by a resolution of each House of Parliament.
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