Clause 28 - Code of conduct
Legal Aid, Sentencing and Punishment of Offenders bill
4:00 pm

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I beg to move amendment 112, in clause 28, page 22, line 8, after ‘body’, insert

‘exercising functions of the Lord Chancellor or the Director pursuant to section 5 or regulations made under that section, including a body’.

While clause 5 enables the Lord Chancellor or the director to transfer services to a person or employees of that person authorised by the Lord Chancellor or the director for that purpose, the code of conduct provisions in clause 28 only extend the code to civil servants and employees of a body established and maintained by the Lord Chancellor. The effect would be that employees of a body or person to whom functions of the Lord Chancellor or the director have been transferred, but who are not civil servants or employees of a body established and maintained by the Lord Chancellor, will not be subject to the Lord Chancellor’s code of conduct. That code will include duties of confidentiality and the avoidance of discrimination and conflicts of interest.

The Bar Council has assisted me in proposing the amendment. It believes that the amendment would extend the code of conduct to cover all individuals exercising functions of the Lord Chancellor or the director. It is an important amendment and deserves careful consideration, and I look forward to hearing what the Minister has to say.

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

Amendment 112 would subject a body exercising a function of the Lord Chancellor or the director under the delegation provisions in clause 5 to the code of conduct in clause 28 when providing services to an individual. The code of conduct under clause 28 must be observed in relation to the provision of legal services to an individual by civil servants and by those employed by a body established by the Lord Chancellor under clause 2. Clause 2 enables the Lord Chancellor to establish a body to provide services under part 1 of the Bill.

At the moment, the body established by the LSC to provide legal aid is the public defender service. Public defenders are employees of the LSC. The Bill will transfer responsibility for the public defender service to the Lord Chancellor under clause 2 of the Bill. Those employed in the PDS must currently comply with a statutory code of conduct. The code is important to public defenders and provides them with some distinct protections relating to their unique status as public servants and legal professionals. The safeguards include a number of duties around their conduct, including most importantly an overriding duty to protect the interests of the client, and other matters, including how to handle and report an excessive caseload.

The Government believe that the code is an important safeguard for public defenders, and that is why we have replicated it in clause 28, which adds to those existing  safeguards and ensures that civil servants and the employees of a body established and maintained by the Lord Chancellor shall, when providing legal aid services to an individual, not be subject to the direction of the Lord Chancellor. Amendment 112 would make the code not apply to the public defender service. The Government do not support that position.

The right hon. Gentleman may wish the code at clause 28 to apply only to civil servants and to a person, or employees of a person, to whom functions have been delegated by the Lord Chancellor. The rationale behind the delegation provisions is primarily practical. In practice, neither the Lord Chancellor nor the director is going to be in a position to personally carry out all the functions laid out in part 1. The amendment is therefore not necessary. The code is specifically designed to safeguard the professional status of public defenders and was developed to complement existing professional codes of conduct rather than to override them. We do not believe that the code needs to extend beyond civil servants and the employees of this unique service. In the light of what I have said I invite the right hon. Gentleman to withdraw his amendment.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I am encouraged by what the Minister said. I beg to ask leave to withdraw the amendment.