Legal Aid, Sentencing and Punishment of Offenders Bill

The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace ““may”” wherever ““must”” appears is not always entirely helpful to good government, but we will see. Amendments 9 and 10 seek to convert into duties the Lord Chancellor’s powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards—here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service. The Legal Service Commission’s existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory. This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework. Amendment 11 concerns the Lord Chancellor’s power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission—namely the LSC’s specialist quality mark and the Law Society’s own Lexcel standard. In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy, and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one. However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others—for example, the Institute of Advanced Legal Studies—to ensure that such a scheme was fit for purpose and had the support of the professions. Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced. Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act. The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position. Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board. Although Clause 14 and Section 13 of the Access to Justice Act are framed differently, their overall effect is essentially the same. Clause 14 is intended to replace Section 13(1)(b) of the Access to Justice Act. We have conferred a power to make regulation under Clause 14 for consistency with Section 13(1)(b) of the Access to Justice Act, which provides that the Legal Services Commission's duty to provide advice and assistance to the individuals mentioned there arises only ““in prescribed circumstances”” and ““prescribed”” means prescribed in regulations made by the Lord Chancellor. When making regulations under Clause 14(3), the Lord Chancellor is required to have regard in particular to the interests of justice. The Lord Chancellor will take account of any legal obligation, including the requirements of Article 6 of the European Convention on Human Rights. The amendment would require the Lord Chancellor to consult and have regard to the views of the Lord Chief Justice, the Director of Public Prosecutions, the Bar Council, the Law Society and the Institute of Legal Executives. As I explained, under subsection (3) the Lord Chancellor must have regard in particular to the interests of justice. It is unnecessary to impose an additional duty on the Lord Chancellor to consult particular individuals and bodies before making a regulation. As a matter of good practice, the Lord Chancellor will, if appropriate, engage with other interested bodies before making regulations under Clause 14. The absence of a statutory duty does not preclude that. I think that that brings us to the end of that group. I have a note intended to give the noble Lord, Lord Carlile, a clarification of our intentions, but I think that that might only provoke him. I will go away and think about it.