Standing Committee E
Tuesday 11 May 1999
(Morning)
[Mr. Peter Atkinson in the Chair]
Clause 16
CODE OF CONDUCT
10.30 am
The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon): I beg to move amendment No. 31, in page 12, line 37, after ``Commission'', insert
`, and employees, of any body established and maintained by the Commission,'.
The amendment demonstrates the Government's commitment to ensuring that the highest ethical standards will apply to any lawyer employed in whatever circumstances as a salaried defender. Clause 16, which provides for a code of conduct for salaried defenders, was introduced by a Government amendment in the House of Lords. There will be consultation with professional regulatory bodies about how salaried defenders will operate, and it is likely that the pilot schemes following that consultation will consider not only what services are to be provided and by whom, but how they will be organised and established.
The Legal Services Commission may wish to consider the provision of services by directly employed lawyers and by not-for-profit bodies established and maintained for the purpose of employing salaried defenders. Under the clause as drafted, the code will not apply to salaried defenders in the second situation. Amendment No. 31 will ensure that the ethical code will apply in both situations.
Amendment agreed to.
Mr. Edward Garnier (Harborough): I beg to move amendment No. 141, in page 13, line 1, at end insert
`(2A) The code shall include also a duty to observe the rules, principles and professional standards of the employee's professional body.'
The Chairman: With this it will be convenient to take amendment No. 142, in page 13, line 4, leave out from `shall' to end of line 5 and insert
`consult the Law Society and the General Council of the Bar and such other bodies or persons as it considers appropriate.'.
Mr. Garnier: The amendments are probing amendments and, in the light of the Minister's explanation of Government amendment No. 31, I hope that he will be able to reassure us that our concerns revealed in amendments Nos. 141 and 142 have already been taken into account. I look forward to the hon. Gentleman's reassurance, after which I shall withdraw our amendment at the appropriate time.
Mr. Hoon: I hope that I can do more for the hon. and learned Member for Harborough (Mr. Garnier) than he requests. Not all employees will be solicitors or barristers. Some will be legal executives employed, for example, to give advice and assistance at a police station as private solicitor firms use them now, subject of course to training, quality assurance and professional safeguards.
Members of professional bodies, whether solicitors, barristers or legal executives, will be expected to observe the rules and professional standards of their appropriate professional bodies. Amendment No. 141 would require that to be stated as the employee's duty in the salaried defenders code. Although that is strictly unnecessary, as the hon. and learned Member for Harborough conceded, I am sympathetic to the amendment's underlying intention. Some employees, however, may not belong to a relevant professional body so, as drafted, amendment No. 141, is too wide. I am prepared, however, to introduce an alternative proposal on Report if that would satisfy Opposition Members.
Amendment No. 142 would require the commission to consult the Law Society, and General Council of the Bar and other bodies before preparing or revising the code. It is inconceivable that the commission would not include the Law Society and the General Council of the Bar in its consultations. Given that the amendment states the intended position, I am willing to accept it although, again, it is strictly unnecessary.
Mr. Garnier: In the light of the Minister's remarks that he will introduce a Government amendment on Report, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman: Order. Let us be clear. The Minister is happy to accept amendment No. 142.
Mr. Hoon indicated assent.
Amendment made: No. 142, in page 13, line 4, leave out from `shall' to end of line 5 and insert
`consult the Law Society and the General Council of the Bar and such other bodies or persons as it considers appropriate.'. [Mr. Garnier.]
Clause 16, as amended, ordered to stand part of the Bill.
Clause 17
Terms of Provision of Funded Services
Mr. Hoon: I beg to move amendment No. 32, in page 13, line 19, leave out `the Crown Court' and insert
`any court other than a magistrate's court'.
The Chairman: With this it will be convenient to consider Government amendments Nos. 33 and 34.
Mr. Hoon: The amendments make technical changes to ensure that clause 17 delivers the Government's intended policy. The clause provides that a judge may order a defendant to pay some or all of the costs of representation funded for him as part of the Criminal Defence Service. That power will replace the existing system, which means-tests every applicant for criminal legal aid at the start of a case.
Means testing is a complex and costly business. Under the present criminal legal aid system, many cases are substantially delayed while defendants provide documentary proof of income and expenses or receipt of certain benefits. Fewer than 1 per cent. of applicants are refused criminal legal aid because they have sufficient means to pay for their own defence. Another 5 per cent. are required to pay a contribution either a lump sum are a weekly amount paid for the duration of the case which is often reimbursed if the individual is subsequently acquitted. The total value of contributions collected is barely enough to pay for the direct costs of running the system, let alone the indirect costs of the delay caused to the progress of cases.
The new scheme will not delay proceedings and will be better targeted. It is absurd to waste taxpayers' money on a system in which the sums recovered are less than the costs of recovering them. For that reason, orders will be made only if the costs of the representation to be recovered are high enough to justify the cost of the scrutiny of defendants' assets by a special investigation unit. That is why orders will not be available for cases that do not proceed beyond the magistrates courts.
The Government intend that all courts other than magistrates courts should have a duty to consider, at the end of a case, whether a defendant should pay his defence costs. That will be done by a recovery of defence costs order. Someone who has been acquitted and who funded his representation by private means will generally be entitled to recover his costs from the public purse. A publicly funded wealthy defendant would be put in the same position on acquittal; he would therefore not generally be ordered to pay for his defence. As a result of evidence given during a trial, it may be apparent to the judge that the defendant has substantial assets. In those circumstances, and after hearing representations from the defence, the court could make a recovery of defence costs order. In other cases, it may be appropriate for an investigation to be conducted into a defendants' means by a special investigation unit.
As drafted, the Bill restricts to the Crown court the power to make a recovery of defence costs order, and the scope of an order to representation in the Crown court. Amendments Nos. 32 and 33 ensure that the Court of Appeal can also make such orders. Amendment No. 34 will allow the order to cover the costs of all representation, including representation in magistrates courts.
Amendment agreed to.
Amendments made: No. 33, in page 13, line 20, leave out `trial judge' and insert `court'.
No. 34, in page 13, leave out line 22 and insert
`any representation so funded for him (in proceedings in that or any other court).' [Mr. Hoon.]
Mr. Hoon: I beg to move amendment No. 35, in page 13, line 31, leave out from `furnishing' to second `to' in line 32 and insert
`of information and evidence to the court or the Commission for the purpose of enabling the court'.
The Chairman: With this it will be convenient to discuss Government amendment No. 36.
Mr. Hoon: The amendments are about the information necessary to allow the court to make a recovery of defence costs order under clause 17. As I said a few moments ago, the evidence given during the trial may lead a judge to believe that the defendant has substantial assets. In other cases, however, it will be appropriate for an investigation to be conducted into a defendant's means by a special investigation unit. In exceptional circumstances, it may be appropriate to prevent a defendant from disposing of substantial assets during an investigation, perhaps to avoid an order being made. Amendment No. 36 would give judges that power.
Amendment agreed to.
Amendment made: No. 36, in page 13, line 34, at end insert
`( ) prohibiting individuals who are required to furnish information or evidence from dealing with property until they have furnished the information or evidence or until a decision whether to make an order, or the amount to be paid, has been made,'. [Mr. Hoon.]
Clause 17, as amended, ordered to stand part of the Bill.
Clause 18
Funding
Question proposed, That the clause stand part of the Bill.
The Solicitor-General (Mr. Ross Cranston): The clause provides for the funding arrangements of the Criminal Defence Service.
Question put and agreed to.
Clause 18 ordered to stand part of the Bill.
Clause 19
Foreign Law
Question proposed, That the clause stand part of the Bill.
The Solicitor-General: Clause 19 carries over provisions from the Legal Aid Act 1988. It restricts the Legal Services Commission to funding under the Community Legal Service or Criminal Defence Service only those services relating to matters of domestic law. However, the Lord Chancellor may order the commission to fund services when it is necessary to do so in order to fulfil the United Kingdom's international obligations. For example, the reciprocal enforcement of maintenance orders agreement obliges us to provide legal aid for the enforcement in this country of child maintenance orders made in foreign courts under foreign law.
Question put and agreed to.
Clause 19 ordered to stand part of the Bill.
Clause 20
Restriction of Disclosure of Information
Question proposed, That the clause stand part of the Bill.
| 
