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Criminal Defence Service (Choice in Very High Cost Cases) Regulations 2001

8.47 p.m.

The Parliamentary Secretary, Lord Chancellor's Department (Lord Bach) rose to move, That the draft regulations laid before the House on 26th February be approved [9th Report from the Joint Committee].

The noble Lord said: My Lords, I intend to speak to the three regulations in my name in one debate. I shall move the final two regulations formally.

The first of these regulations, the Criminal Defence Service (Choice in Very High Cost Cases) Regulations, is made under Section 15(5) of the Access to Justice Act 1999. These regulations apply to those criminal cases where a trial is likely to last 25 days or longer, or the defence costs are likely to amount to £150,000 or more. They provide for the selection of a new representative where a right to representation has been granted in a very high cost case and the Legal Services Commission or the current solicitors' firm do not propose to contract with one another.

Your Lordships will note that in Regulation 3(2)(b) the new representation order is to be made in accordance with the Criminal Defence Service (General) Regulations. These regulations have not yet been made because they are reliant, for that part of their vires in relation to advocacy assistance, on the amendments to the Access to Justice Act 1999, being brought in by the Criminal Defence Service (Advice and Assistance) Bill. We expect this Bill to receive Royal Assent before 2nd April. I repeat that the Government are grateful for the attitude taken by all sides of the House when that Bill was before it. The

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general regulations can therefore be made so that they will also come into force at the same time as the regulations currently being debated.

Noble Lords may recall that in June last year the Lord Chancellor's Department issued a consultation paper on choice of representative. Following consultation, the proposals were refined. However, those revised proposals do not come under the scope of these regulations, so I do not intend to go into them now. The regulations that I am speaking to provide that if a representation order has been granted for a high cost case and the Legal Services Commission or the current solicitors' firm do not propose to enter into a contract with one another, the Legal Services Commission is no longer required to fund the current solicitors.

There will be two main types of case in which the Legal Services Commission or the solicitors' firm will not want to contract with each other. The first is if the solicitors' firm is not willing to accept the remuneration terms or any other terms on offer from the commission. The second is if the commission does not consider that the firm in question has the skills, experience or organisation to handle the case because of its size or complexity. In those circumstances, the individual who has been granted a representation order can choose another firm from among those who are particularly qualified to undertake the work.

I need say little about the Criminal Defence Service (Representation Order Appeals) Regulations--the second of the regulations before your Lordships' House--save that they safeguard an individual's rights by providing for an appeal process against refusal to grant representation orders. The regulations make provision for appeals against all refusals of applications for and withdrawals of representation orders. Those appeals, which are made by way of a renewed application, are to be made to the body that refused the application or withdrew the order, but will generally go to the next tier up. In a magistrates' court, a refusal by the justice's clerk will be dealt with by the district judge on appeal. There is no limit on the number of times that an individual can renew his application.

The last of the three orders required for the Criminal Defence Service is the code of conduct. Section 16 of the Access to Justice Act 1999 requires the Legal Services Commission to prepare a code of conduct to be observed by public defenders employed by the Legal Services Commission. The Act sets out clearly what must be included in the code. It covers duties to avoid discrimination and to protect the interests of the individual for whom services are provided, duties to the court, duties to avoid conflicts of interest and duties of confidentiality. There are also duties on employees who are members of a professional body to comply with the rules of that body.

In June last year the commission prepared a code, which was sent out for consultation. It included all the duties to which I have referred. Fourteen responses were received. In the light of those responses, the commission redrafted the code. The Bar Council and

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Law Society were further consulted and subsequent revisions were made. On 12th March, the Government's conclusions following consultations were published.

The code of conduct demonstrates our intention that the highest ethical standards should apply and be seen to apply to lawyers employed by the commission. It is most important that the 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 for the public defender service to provide a second-rate service. On the contrary, we believe that public defenders will provide a benchmark of quality and cost against which other defence lawyers can be judged.

The Government are grateful to those who responded to the consultation paper before we prepared the final version of the code. We are particularly grateful to the Bar Council and the Law Society for their valuable contributions. They have been consulted twice. The Law Society wanted one minor amendment included. The Bar Council made no further submissions after receiving the final draft. Both bodies would have liked more time to consider the code, but as far as we know they are both satisfied with the content.

I shall not deal with every clause in the code, but I shall refer to the more important ones and some of the amendments that we have made following consultation. The introduction and definitions describe who should observe the code. The definitions have been expanded to clarify that the code covers not just public defenders, but all employees of the commission or of any other body established by the commission who are employed at an office that provides services as part of the Criminal Defence Service--in other words, at a public defender office. Those who have read the code will see that "employee" and "professional employee" are defined in the introduction, because it is a code for all those employed in public defender offices, whether lawyers or not. Parts of the code apply to them in turn.

Several respondents to the consultation raised the applicability of the code to people who are not members of the Bar or the Law Society but are employed by the commission and may have to give advice. The suggestion has been accepted and the definition of "professional employee" has been extended to include any person employed by the commission who may give legal advice directly to clients. That is important, because, for example, a clerk may on occasions attend a police station and have to give immediate advice to clients. Of course people will be under the supervision of qualified employers, but we intend to make it clear that the duties set out in the code apply to them.

Paragraph 1, on the relationship with other professional codes of conduct, has been added specifically to deal with the concerns raised about the code's relationship with other professional codes. It requires the commission to appoint a head of the professional service whose task is to interpret and

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provide guidance on the code. We envisage that in the longer term the head of the professional service will be a full-time appointment, though for the period of the pilots the commission member who will undertake that role will be a part-time appointment.

The new paragraph makes it clear that the code does not override existing professional codes of practice, but expressly requires that, where applicable, they are followed. The code also requires that it is interpreted compatibly with other professional codes as far as possible. When an issue of interpretation between two codes arises, the code provides that the professional head of service should resolve it.

Paragraph 2 deals with the duty to protect the interests of the client as far as that is consistent with any duties to the court and any other rules of professional conduct. Paragraph 2.2 says:

    "A professional employee shall not put a client under pressure to plead guilty".

That should be taken as meaning that undue or inappropriate pressure should not be used. Public defenders may well have a duty in individual cases to give strong and robust advice to their client, just as anyone who has practised in the criminal courts as a solicitor or barrister has given robust and strong advice to their clients from time to time. The code takes effect when that becomes undue or inappropriate pressure. That is the experience of those in private practice.

Paragraph 5 deals expressly with the duty of confidentiality between the employee and the client and the circumstances in which that duty can be overridden, such as when any statutory provision or court order so provides. In response to a concern, this section has been amended so that a duty of confidentiality now expressly applies throughout the public defender service. All employees are caught by the clause.

Paragraph 12 is headed, "Public interest disclosure". A criminal lawyer might say that it was not what he or she would understand by public interest disclosure, but this is a code for employees of the public defender service. Public interest disclosure is exactly what the clause is about. It could be called the whistleblowing clause. It sets out the employee's duty to report if he believes that he is being required to act in a way which is, for example, illegal or unethical or is otherwise inconsistent with this code or the commission's staff code of conduct.

Paragraph 12.1 has been amended to make clear that the trigger for these provisions is an act by the commission rather than by the client. The reporting mechanism has been amended in response to concerns raised on consultation. The professional head of service is now required to carry out an investigation and make a report to the commission.

I deal finally with paragraph 13. Excessive caseload has featured in many of our debates in relation to a salaried defender service and it is covered by this clause. I can repeat that, for our part, we have no interest in underfunding this service. However, it is right that the issue should be addressed in the code.

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The new paragraph reflects concerns about excessive caseloads and includes a positive duty not to accept additional cases beyond reasonable capacity to deal with them. The reporting requirements have been strengthened.

That is all that I want to say in speaking about these three instruments. I commend the first set of regulations to the House and hope that they will be accepted. I beg to move.

Moved, That the draft regulations laid before the House on 26th February be approved [9th Report from the Joint Committee].--(Lord Bach.)

9 p.m.

Lord Thomas of Gresford: My Lords, with regard to the first set of regulations--the Criminal Defence Service (Choice in Very High Cost Cases) Regulations--a word of explanation would be helpful. Whereas there does not appear to be anything that causes difficulty in the regulations in themselves, do they conceal the fact that there is a problem in changing representation where the Criminal Defence Service is employed, save in very high cost cases? In other words, is there no choice unless a case comes within the definition of a very high cost case? I should be grateful for the assistance of the Minister on that point.

So far as concerns the second set of regulations, the provision of appeals is, of course, to be welcomed, and I have no further comment to make.

On the other hand, the code of conduct seems to be fundamentally flawed. It does no service whatever to the concept of the Criminal Defence Service--something against which I have spoken on many occasions. However, I do not want to weary your Lordships further with my objections in principle to the Criminal Defence Service.

In introducing the code, the noble Lord said that it was necessary for the Legal Services Commission to prepare a code of conduct,

    "to be observed by public defenders".

He said that the purpose was for the defence service to ensure the highest ethical standards by lawyers employed by the commission. That I understand and fully appreciate.

He then went on to tell us that, following consultation, the code had been expanded to cover all employees. Once that is done, the drafting of the code contains many nonsensical parts. The definition of "employee" has been expanded to include anyone who is employed at an office from which advice, assistance and representation is provided to clients as part of the Criminal Defence Service. That includes, of course, the receptionist, the man who guards the door, the typist, and so on.

It seems to be quite wrong in principle that a code which is intended to uphold the highest standards for lawyers in the Criminal Defence Service should be mixed up with a series of rules which are designed for every employee, however lowly, within that service. It

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causes problems. When one considers the definition of "professional employee", which means any person, whether or not qualified as a solicitor or barrister or otherwise, one must ask what on earth is meant by the words "or otherwise". Why use the words "professional employee" if that means a person who is not qualified professionally, as is a solicitor or barrister? It strikes me that that confuses the issue seriously.

Drafting errors appear throughout. The second sentence of paragraph 2.1, for example, states:

    "Subject to this, a professional employee shall do his or her utmost to promote and work for the best interests of the client".

What is meant by "this"? Does it mean the primary duty of a professional employee or should it read "these", referring to the,

    "duties owed to the court and any other rules of professional conduct"?

Paragraph 3.2 simply states that:

    "A professional has a duty to maintain his or her professional independence".

Presumably that refers to a professional employee. Why should paragraph 3.1 refer to an "employee" and paragraph 3.2 to a "professional employee"? That is an example of the way in which those duties are mixed up as a result of the expansion of the code.

So far as concerns Clause 4, a fundamental error of principle appears in paragraph 4.1. I do not propose to expand upon it because I know that the noble Lord, Lord Bach, is aware of the criticisms that have been made from these Benches in relation to that. I am sure that steps will be taken to deal with it.

The duty of confidentiality, referred to in Clause 5, applies to an employee. It applies to the typist and the receptionist, and so on. In the whole history of the legal profession, there has never been a need to include the typist and the receptionist, and so on, within the professional codes which pertain to qualified lawyers.

Paragraph 6.1 states that:

    "An employee shall never deceive or recklessly or knowingly mislead the court".

One wonders how on earth a person who is employed at the lower end of the Criminal Defence Service can be in a position to mislead the court, because there will, in any event, be no rights of representation by that person in the court.

I shall take one or two further points--paragraphs 7.3 and 7.4--together. Paragraph 7.3 is subject to paragraph 7.4 and provides that a professional employee must not have a conflict of interest between the interests of a particular client and any other client of the salaried service. However, paragraph 7.4 states:

    "If the conflict arises between two or more clients the professional employee may continue to act for one client provided the salaried service is not in possession of relevant confidential information obtained whilst acting for the other client or clients".

One can envisage a very common situation of two or more people charged within a single indictment and both being represented, at least initially, by the Criminal Defence Service. There may be a cut-throat defence between them. The CDS will clearly have confidential information for both clients, who are in

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conflict. The proposal will permit the CDS to act for one of those clients, and the other would be cast into what the noble and learned Lord the Lord Chancellor would regard as the outer darkness of the profession, which normally supplies services for such people.

Paragraph 7.5 states:

    "If a professional employee ceases to act for a client due to a conflict of interest, then he or she has a duty to refer the client to another representative".

Does that mean a parliamentary or a legal representative? What is meant by that word? It is simply bad drafting.

Paragraph 10.1 refers to a client wishing to change "legal representative". Surely the last word should be, "representation".

Paragraph 11.1 states:

    "A professional employee shall cease to act for a client where ... continuing to act would cause him or her to be professionally embarrassed within the meaning of the applicable professional code of conduct".

What does that mean? If "a professional employee" includes somebody who is not professionally qualified, what professional code of conduct would apply to him? It is a nonsense.

Paragraph 12 is entitled, "Public Interest Disclosure". I heard the Minister's explanation of that heading. The code of conduct has clearly not been drafted by a lawyer. Perhaps the first thing that the CDS should do is to employ a lawyer in order to draft it properly. We all know what "public interest disclosure" is in the criminal law; it has a very clear meaning. But it is used entirely wrongly in this context. "Disclosure in the public interest", if a whistle-blowing operation is involved, might be a way of curing the problem.

Paragraph 12.3 states:

    "This provision does not override the rules of professional privilege".

The correct expression should be, "legal professional privilege".

I have many other criticisms of the code's drafting. For example, paragraph 15.2, refers to:

    "A complaint against a professional employee may be dealt with under the procedure laid down by his or her professional body, as well as under the procedure in paragraph 15.1".

What does that mean? It suggests that a professional lawyer employed by the defence service will be disciplined by his own profession and by the defence service itself. Is that really the intention behind that provision?

I respectfully suggest to the Minister that if the CDS is to have any credibility whatsoever, this dreadfully badly drafted document, which would not pass muster in the first six months of a pupillage, should be taken back and done properly.

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