Standing Committee E
Tuesday 27 April 1999
[Mr. Peter Atkinson in the Chair]
10.30 am
The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon): I beg to move,
That, during proceedings on the Access to Justice Bill [Lords], the Committee do meet on Tuesdays at half-past Ten o'clock and at half-past Four o'clock and on Thursdays at half-past Ten o'clock and at half-past Four o'clock, except on Thursday 6th May when the Committee shall not meet.
May I welcome you, Mr. Atkinson and, in due course, your colleague, Mr. O'Brien, to the Chair. The Bill is important; it sets out the Government's proposals for the wide-ranging reform of our legal system and deals with many issues in considerable detail. I know that members of the Committee look forward to our sittings under your chairmanship. Given that the Bill is wide ranging, rather than spend undue time debating the sittings motion, I hope that we can soon proceed with its detail.
Mr. Edward Garnier (Harborough): May I join the Minister and the Solicitor-General, who will no doubt be addressing the Committee during our deliberations, in welcoming you to the Chair, Mr. Atkinson. I trust that we will have some interesting and fruitful discussions as we progress through the Bill.
Although the Bill will not be in Committee for long, we shall have enough time draw out some of the big issues of principle that underlie our concern a matter in which I am joined by the Liberal Democrat party and which have not been dealt with properly by the Government, and perhaps not even thought about by many Labour Back Benchers. I do not particularly blame them for that, although one or two notable exceptions have given much thought to the matter. The hon. Member for Hendon (Mr. Dismore) is already beginning to bridle at the fact that he may have to sit in Committee and not say very much for some time. I hope that we shall encourage him and his Back-Bench colleagues, some of whom are lawyers and some who, I am happy to say, are not, to join our discussions. Only two non-lawyers who are members of the Committee are visible from where I am standing, although, unfortunately, the hon. Member for Streatham (Mr. Hill), the Government Whip, who is a fine man with a good voice, will not be addressing us much during our proceedings. That is a pity because many of his constituents would like him to speak on their behalf and to hear his comments on the Government's proposals for access to justice.
This is called the "Access to Justice Bill" and, were I a frivolous person, I would have thought that that was quite a good joke. However, I am not such a person and I am genuinely concerned about the effects of the Bill and the Government's wider proposals for the reform of access to justice. I am not accusing the Minister or his colleagues of malicious intent, but I fear that the law of the unintended consequence is about to be visited on the wider public and on those who in the past have had reasonable and fair access to the law.
Several issues in the Bill are not controversial and I trust that they will be accepted in Committee with all due speed. However, many highly important matters need to be discussed in detail before the Bill returns to the Floor of the House and the other place. Several amendments were made to the Bill in the other place and I understand that, even when the first group of amendments was discussed, the Government were already marshalling their forces to do away with clause 1.
If I am lucky, I shall hear every Labour member of the Committee justify the removal of that clause. I am sure that local newspapers, local radio stations, local branches of the Law Society, local consumer groups and local welfare groups will be interested to hear why they are in favour of the deletion of clause 1, and why they think that the Government amendment to clause 5 is an adequate replacement. Clause 1 is the result of an amendment made to the Bill in another place. That amendment was moved by Lord Lloyd of Berwick, who is a retired Law Lord, a noted jurist and, if I may say so, a most humane and civilised person.
As I say, we look forward to hearing why Labour Back Benchers want to do away with clause 1. We look forward also to hearing their justification for the amendment to be made to clause 5, which the Government claim removes the description of gimmick from clause 1 and replaces it with something rather better.
There will, I fear, be votes from time to time; I trust that that will not inconvenience Labour Members, who are no doubt getting on with other matters. We shall sometimes test the opinion of the Committee, and we expect the opinion of Labour Members to be justified by argument and by evidence.
The time that we have available to us will allow the public at large, represented here by Members of Parliament and those able to listen to our debates, to judge for themselves whether the Government and their supporters will be doing right by the public with their approach to the question of access to justice for the least well-off.
Mr. John M. Taylor (Solihull): I join my hon. and learned Friend the Member for Harborough (Mr. Garnier) and the Minister of State in their welcome to you, Mr. Atkinson, as Chairman of the Committee.
Even as we discuss when to meet to scrutinise the Bill, I am anxious about some of the features in its provenance that have possibly still to identify themselves. In answer to a written question, the Minister of State, Lord Chancellor's Department, mentioned rights of audience for members of the Crown Prosecution Service, the proposed Community Legal Service and the proposed Criminal Defence Service.
I had the honour to serve as a junior Minister in the Lord Chancellor's Department during the previous Parliament. That experience gave me an insight into the difficulties of rights of audience in the higher courts, where there are still privileged monopolies. I do not say that pejoratively, because I realise the historic reasons that lie behind those exclusive rights. Indeed, exclusive rights of audience is probably a better and more felicitous expression for my purpose.
While I was at the Lord Chancellor's Department, various moves were made and initiatives undertaken to try to widen the categories of people who might have rights of audience in the higher courts. In those days, reference was necessary to a body known by the acronym ACLEC the Lord Chancellor's Advisory Committee on Legal Education and Conduct. That body held the ultimate and decisive hand on whether rights of audience should be widened. It was, to some extent, a frustrating experience; not a lot of headway was made. Indeed, there was a degree of organised resistance from some of those who held those superior rights of audience.
We now have the prospect not merely of reconsidering the rights of the CPS, an issue that has been around for some time, but of two new entities that could emerge if the Bill is enacted the Community Legal Service and the proposed Criminal Defence Service.
The Minister said in his answer:
"The Government will seek to amend the Access to Justice Bill to ensure that full rights of audience in the higher courts are exercisable by lawyers employed by the Crown Prosecution Service, the Community Legal Service and the Criminal Defence Service, subject to individual lawyers satisfying the qualification requirements and rules of conduct of the appropriate authorised body." [Official Report, 22 April 1999; Vol. 329, c. 676.] ,
That is all still a little unclear. On balance, I would welcome progress being made on the subject and I hope that the Minister and the Solicitor-General can tell us more.
I have an historic interest to declare, inasmuch as I practised as a high street solicitor for 22 years. My address was 2 High street, Solihull I was the original high street solicitor. In those days, I helped start a duty solicitor scheme to operate in Solihull magistrates court when such schemes were not backed by statute and supported by public opinion and the powers that be. Instead, they required the permission of the Law Society. They were a certain anathema, as they were seen to strike against the principle that a defendant is absolutely entitled to choose his or her own lawyer. In their infancy, duty solicitor schemes looked as though they prescribed as a lawyer the person who was on duty and available. That was not a matter of choice, but more to say, "Well, he's here if you want him." There was inertia about that, but people often said, "Yes, we will take him."
We had to get sanction from the Law Society to set up the scheme, and I was helped in that by a gentleman by the name of Dr. Denis Grey. At that time, Dr. Grey was chairman of the Bench of Solihull magistrates and president of the Solihull Labour party, so it was a cross-party initiative seen to be in the public good.
I believe that duty solicitor schemes have been an outstanding success. There may be some Government members of the Committee who would like to identify themselves as also having been involved in such schemes. I would welcome that it is slightly scary to think that I am the only person in Committee who has had first-hand experience of them.
Furthermore, in all the controversies that have surrounded the legal aid budget, one is bound to remark that duty solicitor schemes provided the best value for money of any function of that budget. I think that I know why that is the case. When it was one's turn to be duty solicitor, one identified the unrepresented defendants, made sure that they were all right and knew what was in prospect for them, and whether they needed some advice and representation. Once they had been toured all round the court, human nature being what it was, there was then a vested interest in dealing with the situation, getting it over with and returning to the office.
There is a downward pressure on time in that specific area of legal aid expenditure that is probably almost unique. In every other area of legal aid activity, there is either no downward pressure on time or a perverse pressure to lengthen affairs. Duty solicitor schemes, having come into being in a slightly intuitive and experimental way, have turned into something utterly worth while for all concerned, not least for magistrates and their clerks. Such people are frequently ill at ease when they have unrepresented defendants before them. The temptation for a magistrates clerk is sometimes to try to help them, which gives him or her professional problems. If he or she is tending to the assistance of a party, is he or she maintaining the impartiality also needed to advise the Bench?
The emergence of the duty solicitor scheme has suited solicitors, other court services and the probation service. It has probably suited the police and the custodial services. As far as I can see, it has suited everyone at no great cost.
Even as we are preparing our work, I want to take the opportunity to say that if the proposals in the Bill, some of which are rather unspecific and not very sharp of focus, are intended to supplant, replace and do away with duty solicitor schemes, they are profoundly bad. They will do something perverse, contribute nothing and negate the concept that seems to be, or should be, embodied in the title of the Bill, Access to Justice.
10.45 am
Duty solicitor schemes have contributed handsomely to the concept of access to justice. If the Government intend to strike them down, I shall resist them with all my strength, based on what I think is right and my experience.
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