|
Mr. Garnier: I should like to ask the Solicitor-General or the Minister a brief question about the clause. Will the same strict rules of legal professional privilege and client confidentiality apply to the commission, the Community Legal Service and the Criminal Defence Service as currently apply to lawyers in private practice? Clause 22(1)(a) states that
``the relationship between that individual and the person by whom they are provided or any privilege arising out of that relationship''
will not be affected. How will clause 20 be construed in the light of that? I take it that that deals with my anxiety, and may, to some extent, answer my question, but I should be grateful if the Minister or the Solicitor-General would reassure me.
The Solicitor-General: I can give that assurance. Under subsection (4), disclosure requires the individual's consent. That is the normal rule of confidentiality, which can be waived by the person in whose interest the confidentiality operates. In addition, subsection (7) exempts lawyers from the clause.
The clause largely repeats the provisions in section 38 of the Legal Aid Act 1988, but with several differences. First, subsection 2(d) goes further in allowing the disclosure of information when the information may be of use in the investigation or prosecution of a criminal offence, whether under the law of England and Wales or of any other jurisdiction. The provision in the Legal Aid Act 1988 limits disclosure to investigation or institution of proceedings for offences made under the 1988 Act only. That gives rise to a rather absurd situation. If the information furnished to the board in furtherance of an application for legal aid clearly shows evidence of a criminal offence that is not covered by the 1988 Act, the board may not divulge that information on pain of a fine. For example, evidence provided on an applicant's means may suggest that a fraud is being perpetrated on the Department of Social Security or on a local authority in relation to, for example, housing benefit. It seems only right that, in such circumstances, the commission or any person or body with that information as a result of functions conferred on them under the Bill should be allowed to divulge that information. However, the paragraph contains an important qualification. Information may be disclosed only if regulations do not otherwise proscribe disclosure. In some circumstances, there may be genuine anxieties about disclosing information. For example, it may not be appropriate for information in an application for support to be disclosed to the prosecuting authority to assist in developing the charge for which defence services are being provided. Other circumstances may become clear over time. It seems right that, although the general presumption should favour disclosure, there must be a power to limit it in the light of circumstance and experience.
Secondly, subsection 3(b) puts it beyond doubt that information about how public money has been spent, whether by grant, loan or other payment, may be disclosed. I do not believe that the present provisions in section 38 of the 1988 Act prevent that, but the subsection puts it beyond doubt.
Thirdly, the new provisions require the consent of the Director or Public Prosecutions to prosecution for an offence under the clause. The Director is a more appropriate person to give consent in such circumstances.
Finally, subsection (7) makes it clear that information given by a client to his lawyer will not be subject to the provisions of clause 20, as I pointed out in reply to the honourable and learned Member for Harborough. Therefore, any disclosure could not render the lawyer liable to prosecution under subsection (5). That information remains subject to privilege, and clause 22(1), to which the honourable and learned Gentleman referred, will ensure that the privilege is not affected by a client's being in receipt of funded services.
Question put and agreed to.
Clause 20 ordered to stand part of the Bill.
Clause 21
Misrepresentation etc
Question proposed, That the clause stand part of the Bill.
Mr. Garnier: Does clause 21 mean that a lay client who tells a lie to his state-funded lawyer commits an offence under subsection (1) or is liable in damages under subsection (5)? I hope that Minister or the Solicitor-General will be able to answer that simple question.
The Solicitor-General: The clause carries over provisions from the Legal Aid Act 1988, and creates no new powers compared with the existing provisions. In the situation that the honourable and learned Gentleman has posited, I would have thought that such people would be guilty of an offence, in the sense that they are intentionally bound to comply with any requirement imposed by virtue of the legislation.
10.45 am
Mr. Garnier: I am interested in the Solicitor-General's answer. I am not an expert in legal aid matters as my practice is entirely privately funded. However, as he and I know from our days in practice, from time to time clients do not tell their lawyers the complete and unvarnished truth.
Mr. John M. Taylor (Solihull): Good heavens!
Mr. Garnier: That comes as a surprise to my hon. Friend, an experienced solicitor.
We need to be a little clearer on the subject. An instructed lawyer, funded by the commission or the Criminal Defence Service, may have to give evidence against his lay client in civil proceedings under clause 21(5) or criminal proceedings under clause 21(1). That is not necessarily wrong in principle, but we need clarification of what the clause is intended to do so that lawyers in private practice instructed by the CDS may know in advance what they may have to contend with if one of their clients tells them a lie.
The Solicitor-General: Let me reflect on the subject and write to the honourable and learned Gentleman. At first blush, I would have thought that the provision will catch a client who makes a false representation relevant to the provision of legal services, but will not catch a client who tells a lawyer a false story about a specific incident.
In other words, the provision will be confined to the likes of means and merits tests, which are matters required, as subsection 1(b) says,
``by virtue of this Part''.
Mr. Garnier: I am grateful to the Solicitor-General for his offer to write to me. My question, asked out of a sense of genuine inquiry, has revealed a problem to which he and the Minister may not have given the attention that it deserves. I should be grateful if the Solicitor-General would respond in a letter in reasonably quick time, as we expect the Bill to be on Report within the next fortnight, and it would be a pity if we were unsighted at that stage.
The Solicitor-General: I have responded to several members of the Committee fairly quickly, and I shall do so in this case as well.
Question put and agreed to.
Clause 21 ordered to stand part of the Bill.
Clause 22
Position of Service Providers and Other Parties
Mr. Hoon: I beg to move amendment No. 15, in page 16, line 6, at end insert
`and any authorised by the Commission to be taken.'.
The Chairman: With this it will be convenient to take amendment No. 144, in page 16, line 6, at end insert
`save such expenses or fees incurred in
(a) preparing, obtaining or considering any report, opinion or further evidence, whether provided by an expert witness or otherwise; or
(b) obtaining transcript of shorthand notes or audio or video tape recordings of any proceedings, including police questioning of suspects;
where an application for such funding has been refused by the Legal Services Commission.'.
Mr. Hoon: Amendment No. 15 corrects an omission in the Bill as drafted. Clause 22(2) states that people providing services funded by the commission cannot take any payment for them, other than that made by the commission. That carries over from section 31(3) of the Legal Aid Act 1988 the existing prohibition on topping up that is, seeking to supplement legal aid rates by charging the client an additional sum. The Legal Aid Act 1988 allows for exceptions to be made by regulation. Amendment No. 15 will enable the commission to authorise exceptions to the general prohibition, which it will do as a term in a contract. The different approach reflects the different natures of the old and new schemes.
The commission will be actively responsible for deciding how best to purchase services in different circumstances, whereas the board's role is to administer a scheme fixed by regulation. The power to make exceptions is necessary, for example, to allow for limited litigation support funding for a case that is otherwise being funded privately. The Legal Aid Board proposed that option in the draft funding code that it published in January.
Under amendment No. 144, the rule against topping up would be disapplied in relation to the costs of reports, transcripts and so on, if the commission decided not to fund those costs itself. In some circumstances, contract prices are likely to be set to cover such costs; in others, they will be outside the main contract price, and funded separately after the commission has authorised the expenditure. In amendment No. 144, it is assumed that the latter circumstances only will apply.
The effect of the amendment would be that, if the commission refused to authorise that expenditure no doubt, because it considered it unnecessary or inappropriate the lawyer could charge the cost to the assisted client. That seems to be an extraordinary proposition, and it is wholly unacceptable.
Mr. Garnier: When the Minister uses terms such as ``wholly unacceptable'', I am reminded of the Lord Chancellor's response to a question asked by the former Master of the Rolls, Lord Donaldson of Lymington ``It is not a good way to enter a debate, let alone to leave it.''
I invite the Minister to reflect on amendment No. 144, because there are many perfectly acceptable reasons why a client may be advised that he requires additional evidence or expert attention to progress his case. There may be a perfectly genuine difference of opinion about the worth or otherwise, or the use or otherwise, of obtaining such additional advice between the instructed solicitor and the Community Legal Service or the Criminal Defence Service. However, if the CDS says, ``We don't think it is necessary'', that will be the end of the matter, and the lay client will go without the opinion, other evidence, transcript or other recordings.
| 
