Clause 1 - Extent of duty to fund advice and assistance
Criminal Defence Service (Advice and Assistance) Bill [Lords]
10:30 am
Mr David Lock (Parliamentary Secretary, Lord Chancellor's Department; Wyre Forest, Labour)
I welcome you, Mr. Sayeed, to our brief deliberations. I look forward to serving under your chairmanship for the first time—with the exception of the Programming Sub-Committee this morning.
The Criminal Defence Service (Advice and Assistance) Bill [Lords] clarifies the extent of the Legal Services Commission's duty to fund legal assistance as part of the new criminal defence service under section 13 of the Access to Justice Act 1999. The criminal defence service will come into being on 2 April 2001.
There is some doubt whether the interaction of sections 13 and 14 of the Access to Justice Act allows for the limited form of representation known as advocacy assistance—more commonly known as ABWOR, or the assistance by way of representation scheme. There is also doubt about whether section 13 allows the funding of advice and assistance for people who are, may be or have been involved in quasi-criminal proceedings. Clause 1 seeks to remedy both of those apparent deficiencies.
First, the amendment that the Bill makes to section 13 of the Access to Justice Act makes it clear that the assistance that the Legal Services Commission is allowed to fund under section 13 includes advocacy. Under current arrangements, the court duty solicitor scheme is provided for by the ABWOR scheme. If an individual is arrested, remanded in custody and brought to a magistrates court before he has an opportunity to apply for a full representation order, formerly known as criminal legal aid, the scheme provides that he may use the services of the court duty solicitor or a solicitor of choice to represent him at the early hearings. Without that vital scheme, vulnerable individuals might not be properly represented, and the criminal justice system as a whole could be subject to delay and possible injustice.
Secondly, section 13 of the Access to Justice Act refers only to investigations. The Bill therefore makes it clear that advice and assistance are available to those involved in criminal proceedings, rather than only to those involved in criminal investigations in prescribed circumstances. That allows advice and assistance to be extended—for example, to cover proceedings for anti-social behaviour orders and civil proceedings in magistrates courts arising from the failure to pay a debt if such failure carries the risk of imprisonment. Those proceedings will be defined as criminal proceedings for the purpose of providing legal help under the criminal defence service.
After the Bill was published, the Government introduced three amendments on Report in the House of Lords. Taken together, they allow the Bill, on enactment, to have retrospective effect. Amendment No. 1 provides that the 1999 Act will be read as though the Bill has always amended it. Amendment No. 2 provides that secondary legislation made under the powers in section 13(1) of the 1999 Act may also have retrospective effect, and amendment No. 3 changes the commencement date of the Bill. There is no longer any need for the Bill to commence on 2 April, so it will commence on the day on which it receives Royal Assent.
I am sure that hon. Members will agree that the Bill, although small, is important, and I hope that it will receive a speedy passage through the Committee. The defects that we seek to remedy through the Bill were not in the Government's original draft of the Bill that became the 1999 Act. During its passage, we listened to amendments and concerns raised on both sides of the House. As a result, amendments were made to what are now sections 13 and 14 of the Act. The Bill corrects an unintended consequence that was a result of our response to genuine concerns. So far as we can determine, the defects were not spotted by the Government or the Opposition during the passage of the Bill that became the 1999 Act.
I am grateful to the hon. and learned Member for Harborough (Mr. Garnier) for his support for the Bill and the principle of maintaining the duty solicitor scheme. I commend the clause to the Committee.
Mr Edward Garnier (Harborough, Conservative)
The Minister is right to say that the Bill has the general support of the official Opposition. That is not because we admire what the Government have done, as the Bill could more properly be described as the ``Access to Justice (Cock-up) (No. 1) Bill''. The Minister and his colleague in the House of Lords admitted to the error. I am not sure whether it is the duty of the Opposition to point out the Government's incompetence; none the less, it is there for all to see, hence the Bill. I shall do nothing to inhibit its passage, as its overall intention is to correct a removal of access to justice. I will do all in my power to achieve that correction.
I ask the Minister to answer several questions that arise from the Bill and the Access to Justice Act, which it seeks to correct. How many solicitors or firms of solicitors have so far signed the contracts of the Lord Chancellor's Department for the provision of advice and representation in criminal cases? As the Minister will know, the Law Society is in a state of war with the Department about the contracts, which are required to be signed if the criminal defence service, in its wider sense, is to come into existence effectively. Finally, how many lawyers will the salaried defender service employ and when will they begin work, and what is likely to be the overall annual cost of its establishment?
Mr John Burnett (Torridge and West Devon, Liberal Democrat)
I, too, welcome you to the chairmanship of the Committee, Mr. Sayeed. I have not had the privilege of serving under your aegis before.
I will be interested to hear the Minister's response to the questions asked by the hon. and learned Member for Harborough.
The principal practitioners who will provide the duty solicitor service at our magistrates courts will, of course, be private practitioners. The hon. and learned Gentleman referred to the state of war between the Lord Chancellor's Department and the Law Society about the contracts being negotiated to provide the service. Will the Minister tell us how those negotiations are proceeding? When does he believe that they will be concluded, and what are the main points of tension and disagreement in relation to the contract? Is there a chance that the Lord Chancellor's Department will take steps to overcome those points of disagreement and tension?
When we debated this little Bill in the House on 26 February 2001 I referred to the Scottish pilot scheme for the salaried defender service. I am told that the operating costs are well in excess of the budget for that scheme. What is the excess? Does the Minister believe that that alternative state, or salaried, defender system is likely to be more cost effective and greater value for money than the existing service, provided by private practitioners?
Mr David Lock (Parliamentary Secretary, Lord Chancellor's Department; Wyre Forest, Labour)
It is interesting that the questions that I have been asked are, with the greatest respect to hon. Members, at best tangential to the Bill. However, I admire the ingenuity that has been employed in asking such questions, and I shall try to answer them.
I am not today in a position to give the exact number of solicitors who are presently signed up for the Legal Services Commission contract. The issue is not how many have signed up to date, but how many will have signed by 2 April. The hon. Member for Torridge and West Devon (Mr. Burnett) asked how negotiations are proceeding, and I can tell him that they have concluded. They have been complex negotiations, based on a comprehensive research programme that was undertaken on the commission's behalf with respect to the contracting pilot that it has been running for two years with 70 criminal defence firms.
The research has been undertaken for the commission by a team led by Professor Lee Bridges of the university of Warwick. The research report was published by the commission in August, alongside the draft contracts for consultation. In addition, of course, the commission has a large, well developed and comprehensive network of contacts with criminal defence lawyers and their national representative organisations. It has been discussing the details of the contracts with them. It is true that we based the draft contract on the research, but it has been amended in various ways through negotiations. The negotiations are finished and the final form of the contract is now available for solicitors to sign.
As to points of tension, remuneration issues are clearly important to solicitors. The contract provides for an increase in remuneration of a global amount of about 7.25 per cent. As money is being paid under contract, rather than under the old system, it is not possible to make an exact comparison of like with like. However, the Government believe that the settlement is a fair and reasonable one for the important work that is being undertaken.
The second issue that the hon. Gentlemen raised—
Mr David Lock (Parliamentary Secretary, Lord Chancellor's Department; Wyre Forest, Labour)
Well, yes, okay.
Mr Edward Garnier (Harborough, Conservative)
We have until Thursday to deal with the matter.
The Minister said that the important point was not how many solicitors had signed the contract to date, but how many would have signed it by 2 April. It is possible to extrapolate from the number who have signed to date—bearing in mind that the contract has apparently been available to be examined since the autumn, albeit that it has been amended in negotiations—the number that may well have signed by 2 April. How many does the Minister anticipate will have signed by that date? Given that I cannot expect him to provide me with the answer to the question that I put to him earlier, will he please write to me with an up-to-date figure, let us say as at midday on 6 March, for the number of lawyers—or lawyers' firms—who have signed the contract?
Mr David Lock (Parliamentary Secretary, Lord Chancellor's Department; Wyre Forest, Labour)
I am certainly prepared to give the hon. and learned Gentleman an assurance that, on the evidence, our best assessment is that sufficient lawyers will have signed up to the contracts by 2 April to enable us to discharge our duties under the criminal defence contracts. For example, the number of offices operating in Wales a few years ago was about 540. It is now fewer than 300. However, the spend on those 300 offices, which are now quality-marked, represents well over 90 per cent. of the previous total spend across all the offices. We are clearly moving to a quality-assured system, where the number of firms is reducing but we are ensuring that those firms that remain in the system are quality-marked. We are, therefore, confident of the quality of service to clients that is being paid for out of public money.
Mr John Burnett (Torridge and West Devon, Liberal Democrat)
There are two aspects of this on which I should appreciate an assurance from the Minister. First, will enough practitioners have signed up by 2 April, and, secondly, will they span the whole country? Will he supply that assurance either by letter or in Committee now?
Mr David Lock (Parliamentary Secretary, Lord Chancellor's Department; Wyre Forest, Labour)
I can certainly assure the hon. Gentleman that I know of no reason why geographical coverage should not be maintained appropriately after 2 April.
I should like to raise a related matter. The criminal defence service intends to pilot an initial six offices to see how they work in the context of the criminal justice system in England and Wales, with salaried defenders. That is six offices, compared with several thousand firms that undertake criminal defence work. The proportion of work being undertaken in the salaried sector is, therefore, extremely small. I do not have full details of the anticipated costs with me today. Last time hon. Members asked about them, those matters were still being worked out by the commission. I am happy to write to hon. Members to explain the best estimate of costs that we now have.
The hon. Gentleman raised a serious point about the Scottish pilot. My understanding of the position, having been to see the Scottish pilot working, was not that the cost per case was significantly higher, as has been suggested. Indeed, many of the figures bandied about were exaggerations. However, this pilot is not run by my Department; it is run by the Scottish Legal Aid Board, which reports to the Scottish Executive. Nevertheless, I shall attempt to get some costings and will write to the hon. Gentleman and to the hon. and learned Member for Harborough.
Question put and agreed to.
Clause 1 ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Bill to be reported, without amendment.
Committee rose at twelve minutes to Eleven o'clock.