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Mr. John Burnett (Torridge and West Devon): I join the Minister and the hon. and learned Member for Harborough in welcoming you, Mr. Atkinson, and, in due course, Mr. O'Brien, to the Committee. I too must declare an interest, in that I am still a partner of a firm of solicitors, but, as I have said before, I shall shortly retire from that position.
I summarised my views on Second Reading on 14 April. There is a worrying paradox in the Lord Chancellor's words in the foreword and in the aims and objectives section of the White Paper, "Modernising Justice" , the precursor to the Bill. Unfortunately, the Bill falls significantly short of the objectives that he has set. The Government fail to live up to those objectives. Where the Government fall short of the principles that they themselves have set out for the Bill, we shall vigorously challenge them in order to ensure genuine access to justice.
Question put and agreed to.
Resolved,
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.
The Chairman: I shall deal first with one or two housekeeping matters. I remind the Committee that there is a financial resolution in connection with the Bill, copies of which are available in the Room. I also remind hon. Members that adequate notice of amendments should be given. As a general rule, Mr. O'Brien and I do not intend to call any starred amendments that may be reached during an afternoon sitting. The Bank holiday next Monday affects notice required for next Tuesday's sitting. In order to be unstarred and therefore selectable next Tuesday, amendments should be submitted not later than the rise of the House this Thursday, 29 April.
Resolved,
That the Bill be considered in the following order, namely, Clauses 1 and 2; Schedule 1; Clauses 3 to 7; Schedule 2; Clauses 8 to 15; Schedule 3; Clauses 16 to 24; Schedule 4; Clauses 25 to 36; Schedule 5; Clauses 37 and 38; Schedule 6; Clauses 39 to 57; Schedule 7; Clause 58; Schedule 8; Clauses 59 and 60; Schedule 9; Clauses 61 to 69; Schedule 10; Clauses 70 to 83; Schedule 11; Clause 84; Schedule 12; Clauses 85 to 88; new Clauses; new Schedules. [Mr. Hoon.]
Clause 1
Principles applicable to Part I
Mr. Garnier: I beg to move amendment No. 17, in page 1, line 15, after `of', insert
`racial grounds, gender, sexual orientation, or'.
The Chairman: With this it will be convenient to take the following: Amendment No. 18, in page 2, line 4, at end insert
`(d) that persons obtaining access to legal services under this Part shall have the widest possible choice of provider or services'.
Clause 1 stand part.
Government amendments Nos. 3 to 6.
Mr. Garnier: We now begin the rather more detailed analysis of the Bill for which I must move my chair. (Laughter.) Sadly, that is probably not the final laughter that we shall hear from the Government Benches, probably because labour Members' minds are not fully on the matters under consideration. I dare say that over the next few days they will become rather more acquainted with the Bill's content.
The clause was added to the Bill in the other place following a debate on 11 February. It was proposed by Lord Lloyd of Berwick, a retired Law Lord. The Government were defeated in the House of Lords and clause 1 was added because the Bill as previously drafted and, no doubt, as it will stand when the Government have their way in this Committee was remarkably empty of detail. As I have said, I look forward to hearing from Ministers why the Government want to re-amend the Bill by deleting clause 1.
This is a coathanger Bill. It will allow the Lord Chancellor by regulation, some of which will be constrained by the need for affirmative resolution in both Houses to do many things to the way in which the courts are run and to the way in which we ensure that our constituents gain access to legal services and the courts. However, the Bill does not provide much detail; it is an enabling Bill, following which the Lord Chancellor will be able to introduce secondary legislation to give effect to the powers that he will be given under the Bill.
The principles that should apply to the use of part I were not made clear. Therefore, the Lords added clause 1(1), which states:
"Every person exercising functions in connection with this Part must act, so far as possible, in a way which is compatible with the objectives set out in subsection (2)."
Part I deals with the creation of the Legal Services Commission and its two subsidiary bodies the Community Legal Service, which is intended to replace the current civil legal aid system, and the criminal Defence Service. The CDS is a wholly new concept to the law of England and Wales and is the mirror image of the Crown Prosecution Service, or the nearest equivalent to that. It will constitute a state-funded form of representation for those accused of criminal offences.
Mr. John M. Taylor: I wonder whether my hon. and learned Friend would care to comment on the fact that a criminal defendant at the Crown court faced with being prosecuted by a lawyer on the state payroll may find that he can turn for advice only to another lawyer on the state payroll. How does my hon. and learned Friend feel about that?
Mr. Garnier: I feel uncomfortable about it, and we shall have an interesting debate when we come to clause 13 and the subsequent clauses under the subheading, "The Criminal Defence Service" . While we are discussing part I, to which the provisions on the CDS are relevant. I echo what my hon. Friend has said. What he suggests is likely to happen in many criminal cases, but not in all. To be fair to the Government, criminal representation will be provided by not only state employees but by members of the private profession.
None the less, the Bill constitutes the beginnings of a state system of prosecution and defence. Those whose liberty and reputation is at risk will be assisted by employees of the state, whose intentions and motives may, whether wittingly or unwittingly, be somewhat diffuse and not concentrated on the aims of the private practitioner, defendant's counsel or solicitor that is, fearlessly to represent his client irrespective of his promotion prospects or other matters.
Mr. Hoon: The hon. and learned Gentleman is criticising proposals that will, perhaps initially, allow relatively few lawyers to be directly employed by the Criminal Defence Service. Is he saying that the Conservative party opposes that in principle?
Mr. Garnier: The Minister will find that we are a party or principle and that we are discontent with many of the Bill's provisions.
When we come to clause 13 stand part, the hon. Gentleman and his ministerial colleagues will find that, although they may win the vote, they will not be able to guarantee the whole-hearted support of the wider public. I do not deny that the hon. Member for Streatham will be able to sleep easy most nights, knowing that on Tuesday and Thursdays he can deliver to the Chief Whip what is required by the Lord Chancellor and the Government's business managers.
The Minister lives a dangerous life shuttling between the Government Whip's Office and the Lord Chancellor's Department, occasionally popping in for tea or something of a similar nature with his boss, the Lord Chancellor, to be given further advice on how to make progress with this Treasury-driven Bill. It will not necessarily be an altogether comfortable journey because the Committee will bring him face to face with some of the consequences of what he and his Government colleagues propose.
Mr. Hoon: The answer that I want to be brought face to face with is whether the hon. and learned Gentleman opposes the provisions that allow for the direct employment of defence solicitors by the Criminal Defence Service.
Mr. Garnier: I am not in favour of the setting up of the Criminal Defence Service. However, because I can add up as well as the Minister can, I know that there will be a CDS. I know also that the Minister will have to live with the consequences of it. I am concerned that, under the CDS, those accused of criminal offences will not be given a choice of representation in court or of an adviser prior to a case coming to court.
If the Minister thinks that that is fine and that he can sign the declaration that the Bill complies with the Human Rights Act 1998 and the convention, that is a matter for him. I suggest, however, that he may have to argue his way out of that problem. I am disappointed that a Government who used to represent the poor and those unable to fend for themselves should now provide an Access to Justice Bill that will inhibit access to justice. The Bill will inhibit the freedom to choose a representative who can fearlessly appear in the courts, irrespective of the career and promotional needs and the office politics that will apply in a state defence service.
I had not intended to divert to an essay on the ills of the CDS, but one has only to go to the United States to see what happens in jurisdictions there to understand that a state defence service is not ideal. Indeed, it is not supported by the Chief Justice of the Supreme Court of the United States, who has made clear his support for the way in which the independent advocate in this country, whether a solicitor or a barrister, can appear for a defendant unhindered by concerns about whether his promotion or career prospects in the CDS depend on how he performs.
Before I gave way to the Minister, I was seeking to explain, as best I could it may not be apparent to some members of the Government team how clause 1 came into being. It was introduced by Lord Lloyd of Berwick. It was the opinion of the majority of their Lordships that the Bill was deficient because it did not set out clearly the objectives that should be applied by those operating the Legal Services Commission, the Community Legal Service and the Criminal Defence Service.
In moving the amendments, my hon. Friends and I and the hon. Member for Torridge and West Devon (Mr. Burnett) seek further to improve the objectives listed in clause 1. The objectives are
"that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means; ... that such access is not to be impaired on account of disability (within the meaning of the Disability Discrimination Act 1995) or the place in England and Wales where any legal services are sought"
and
"that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing."
11 am
Amendment No. 17 would insert in line 15 of the clause after "of" the words
"racial grounds, gender, sexual orientation" .
Amendment No. 18 would add a subsection (d), which states
"that persons obtaining access to legal services under this Part shall have the widest possible choice of provider or services."
Lord Lloyd's proposal was eminently civilised and sensible because, despite what the Lord Chancellor said in the other place on 11 February, the remainder of the Bill is deficient. The clause is necessary because what is proposed under Government amendment No. 5 to clause 5 does not meet the glaring need that is apparent in the Bill. Why are the Government shying away from making it a clear objective, which can be tested and taken by judicial review to the courts, that a functionary under the Legal Services Commission, the Community Legal Service or the Criminal Defence Service ensures that people have access to legal services and the machinery of justice that they would otherwise be unable to obtain on account of their means?
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