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Lord Thomas of Gresford: My Lords, I am interested in the Minister's reply. Since I am presently involved in a 12-handed case, let us assume that one person is represented by the Criminal Defence Service. Does the Minister's reply mean that the other 11 cannot be, or does it mean that one can be represented by one office of the Criminal Defence Service and that another can be represented by somebody from a different office?
Lord Bach: My Lords, as I read paragraph 7(4), the office in question is relevant. However, I shall have to consider the matter and write to the noble Lord about it. I heard what the noble Baroness, Lady Blatch, said from her seated position and I am surprised that with her experience she speaks like that in the House. But that is a matter for her.
The answer is that, as with a private solicitor's firm, it will be the duty of the salaried defence office to get rid of one of the clients if there is a conflict of interest, but to get rid of both of them if he has confidential information, in exactly the same way as a private solicitor would have to. As there is likely to be one public defender's office in a particular town, it would appear that if he had 12 he would have to give up all but one, but if he had confidential information on any of them he would have to give them all up.
The point I seek to make is that that is exactly in line with what has happened in private practice for years and years. It is because we want to follow that system that we have adopted it in this way.
I referred to Clause 12, the whistle-blowing clause, which was criticised from a lawyer's point of view. I want to make it absolutely clear that although there are in the code phrases which should not appear--phrases which the printers have not taken out--they will not appear when the code is given to the employees of the Criminal Defence Service. However, the law says that once the code is laid it must stay as it is. I take the minor drafting points that have been made.
However, I reject whole-heartedly the suggestion that the code is unfit for the emergence of the Criminal Defence Service. The code has been consulted on widely and I understand that both the Law Society and the Bar Council, although no doubt like noble Lords opposite they have reservations about the principle of a public defence service--
Lord Bach: My Lords, in my view, it is a very unfair and misplaced criticism. The code is for all employees of the Criminal Defence Service. We have sent out final drafts and we have had no response. I do not want to put it higher than that. We have had no response, so my understanding is that there is no severe criticism of the code from either of those two bodies. If I am wrong about that, I shall immediately make that clear.
Therefore, I was surprised to hear such criticism levelled at the code by noble Lords on the Opposition Benches. I was surprised in one sense but not in another. I repeat what I said at the beginning: it is the Government's view that the code is being criticised mainly because there is disapproval of the idea behind it.
Lord Thomas of Gresford: My Lords, before the Minister completes his comments, perhaps I may assure him that if we are to have a Criminal Defence Service, and we have been through all that, it must reach the highest professional standards. In the 12-handed case to which I referred, it would be wrong for different standards to apply to the first defendant as apply to the other 11. My criticisms are directed to suggesting to the Minister that he produces a professional code for the Criminal Defence Service which is worthy of that service.
I assure the Minister that I do not come from the standpoint of being totally opposed to the Criminal Defence Service in any way. If we have to have the service--and I made my criticisms about it--for heaven's sake, make it work.
Lord Bach: My Lords, we believe that we can make it work, and that is what the professional code does. This professional code will deal with situations that those who work for public defenders will meet. Criticism that it does not do so is unfair and misplaced.
The noble Lord said: My Lords, in moving this Motion perhaps I may first draw to your Lordships' attention a typographical error in the draft order. Under the heading "Transitional provisions", "paragraph 6(3)" should read "8(3)". This does not affect the meaning of the draft order. A corrigendum was placed in the Printed Paper Office on Monday. I apologise for that error.
The proposals before the House seek to amend Schedule 18 to the School Standards and Framework Act 1998. Section 67 of, and Schedule 18 to, the Act govern appeals against exclusion of pupils. Paragraph 18 of the schedule empowers my right honourable friend the Secretary of State to amend the schedule if necessary. Your Lordships will be aware that schools can permanently exclude pupils when serious indiscipline occurs. The 1998 Act contains safeguards for schools, children and parents. Under the Act, the process of exclusion begins with the head teacher's decision, which must then be reviewed by the school governors. Where the governors uphold the exclusion but the parent remains unhappy, the final safeguard is an independent appeal. All these steps are governed by a statutory timetable that is designed to ensure rapid decisions.
This amendment concerns exceptional cases where there is good reason to delay the decision process. The circumstance we most want to provide for is where the excluded pupil is also subject to criminal proceedings. The amendment itself is quite straightforward. Paragraph 8(3) of Schedule 18 currently provides that parents of permanently excluded pupils, or excluded pupils themselves if they are aged 18 or over, may ask the local education authority to set a date for the hearing of their appeal that is later than the statutory latest date, which is 15 school days after the appeal is lodged. We propose to repeal this narrow provision and replace it with a broader one through new paragraph 10(3), which will give the panel itself a
One example of a possible adjournment is where a parent requests a delay in exceptional circumstances--a situation for which paragraph 8(3) currently provides. At present, the local education authority can agree to give the parent more time. Under the new provision, the panel could agree to allow the parent more time by adjourning. The effect here will be essentially exactly the same as now: parents will still be able to ask for more time if there is good reason. They may need more time to prepare a more effective case; they may be waiting for new evidence, such as a medical report; there may be domestic reasons, such as illness or bereavement; or perhaps a witness cannot attend the hearing.
However, the principal reason for the proposed change is the situation, which unfortunately occurs from time to time, where the excluded pupil is also facing criminal proceedings arising from the same incident as led to the exclusion. I am talking about an incident in school where the head teacher has good reason to exclude but where at the same time or later the police are called in to investigate the incident. In some cases the police investigation may be inconclusive or may lead to the pupil being cautioned. But in other cases the police may decide that there is enough evidence to prosecute.
In these cases a difficulty can arise--as happened in a case last year--that the statutory timetable for the review of the exclusion by the discipline committee and then by the appeal panel moves faster than the timescale in which the police, the Crown Prosecution Service and the courts resolve the matter.
A permanent exclusion case takes about 45 school days to reach the appeal stage, but the time needed for the police to investigate, for charges to be brought and for the courts to rule is sometimes longer than that. In that situation, which is exceptional, we want panels to have the option of adjourning to await the outcome of the criminal proceedings. It will depend on the circumstances of each case whether an adjournment is appropriate and for how long. But panels will want to reduce the risk, not only of prejudice to the criminal proceedings but of their decision turning out to be inconsistent with the outcome of those proceedings.
We shall need to give schools and local education authorities guidance on the circumstances in which the panel might appropriately use the power to adjourn. Where panels adjourn, local authorities continue to have a duty to provide suitable education outside school--which must be full-time by 2002--for any child excluded for 15 days or more. Within 15 days of the head teacher excluding a child, the governors' discipline committee must meet to decide whether to uphold the exclusion. If it decides to confirm the exclusion, the local authority must immediately arrange to assess the pupil's needs and how to meet
If the House does not approve the order, we shall be left in the present unsatisfactory situation that the only means whereby an appeal panel can adjourn is by inviting the parent to ask for an adjournment. That may work in some cases, but the panel is put in a difficult position if the parent insists on the appeal going ahead whatever the circumstances, including those circumstances where court proceedings are known to be pending. The draft order before the House is a positive measure which will improve the legislation governing school exclusion. I commend the order to the House.
Moved, That the draft order laid before the House on 26th February be approved [8th Report from the Joint Committee].--(Lord Davies of Oldham.)
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