House again in Committee.
Clause 105 [Extension of powers of non-legal staff]:
moved Amendment No. 116A:
116A: Clause 105, page 71, line 4, leave out “(2)(a)” and insert “(2)”
The noble and learned Baroness said: I wish to speak to government Amendments Nos. 116A, 116B, 116C, 116D and 180C and all the other amendments in this group.
The government amendments respond to concerns voiced by the legal profession and Members of both Houses that the current Clause 105 would enable Crown Prosecution Service non-lawyers to appear in trials of potentially serious either-way offences that may be heard before the magistrates’ court.
Accordingly, the proposed amendments to Clause 105 will limit the trial element of the clause by restricting the statutory powers of Crown Prosecution Service non-lawyers, referred to as designated caseworkers, to undertaking trials of summary-only offences in the magistrates’ court. This we believe will do much to address the concerns that have been raised in both Houses.
A consequential amendment to the clause provides clarity as to the purpose and intention of Section 7A (2)(b) of the Prosecution of Offences Act 1985. This subsection relates to the subsidiary powers of a designated caseworker. The amendment widens the scope of the current subsection of the Act to include civil proceedings.
We hope that, in the phrasing of these amendments, Members of the Committee will feel that we have gone a long way to address the anxiety, which is really predicated on everyone’s desire to maintain a high quality of advocacy in the courts. I have written a letter setting out some of the history of designated caseworkers, a copy of which has been put in the Library of the House, but I hope that Members of the Committee have had a copy of it. Therefore, with the Committee’s permission, I will not refer to all those matters of historical relevance. I will, however, address some of the concerns that have been raised; we have listened to their broad nature and believe that we can respond.
Restricting the trial element of the clause to summary-only offences will remove the possibility, albeit remote, that the Crown Prosecution Service may have deployed a designated caseworker to prosecute a trial involving a serious either-way offence before the magistrates’ court. This concern was voiced at Second Reading and the Government have now moved to address it. We have not sought to place such a further limitation in the Bill, as it is sensible to allow for the possibility that at some point in the future designated caseworkers may have obtained the trial skills and experience that make it desirable for them to expand into other trial work. To limit unduly the scope of the clause now, requiring further amendment in due course, would not, I respectfully suggest, be an effective use of parliamentary time. In addition, there is an effective statutory mechanism already in place in Section 7A(3) and (4) of the Prosecution of Offences Act 1985 that can be deployed to provide the required safeguard.
The current Section 7A(3) and (4) of that Act places a statutory obligation on the Director of Public Prosecutions to issue general instructions that govern the nature and type of hearing in which a designated caseworker may be deployed. The Director of Public Prosecutions has assured me, and I can in turn assure the Committee, that the instructions would be amended to limit the deployment of designated caseworkers to trials involving summary-only offences that are non-imprisonable.
The instructions will also provide guidance that will exclude certain categories of trials, such as those where there is a known technical defence involving complex legal issues and those cases that may be considered sensitive; for example, where there is a vulnerable child witness, an elderly person, a victim or matters of that sort that would require evidence to be taken by video link. Further, I have agreed with the Director of Public Prosecutions that should the Crown Prosecution Service wish in later years to extend the nature of trials that a designated caseworker may undertake, the Attorney-General, as their superintending Minister, must be consulted and satisfied that any extension is justified.
I shall also address another concern voiced at Second Reading: that designated caseworkers are not subject to any external regulation. The Crown Prosecution Service acknowledges that concern and accepts that at a time of greater regulation of the legal profession it is important to introduce external regulation for designated caseworkers. Accordingly, I am pleased to confirm that the Crown Prosecution Service has reached agreement, in principle, that later this year designated caseworkers will be granted special membership of the Institute of Legal Executives. The institute will also work with the Crown Prosecution Service to accredit its current and future designated caseworker training programme. Membership will mean that designated caseworkers come within the institute’s regulatory framework.
On admission to the Institute of Legal Executives, designated caseworkers will be governed by its professional codes and in essence they will be in the same regulatory position as solicitors and barristers. To that end I can confirm that the Crown Prosecution Service and the institute are in discussion with a view to harmonising the current Crown Prosecution Service Statement of Ethical Principles, which is, in effect, the Crown Prosecution Service’s comprehensive code of conduct and advocacy code. The institute will look also at how its regulatory and conduct regime can incorporate the CPS standards.
One of the issues about which people were concerned was that designated caseworkers may be young slips of a thing. Doubtless, they are, when compared to this august House; but I understand that a majority, about 70 per cent, tend to be between 30 and 50—so they are young—and some 68 per cent are women. This has been an excellent way of trying to broaden diversity and we are much encouraged that many aspire to and achieve professional status as solicitors or barristers. One designated caseworker has reached the dizzy heights of Chief Crown Prosecutor. So these caseworkers are a real advantage to the legal profession as a whole.
I hope that I have been able to reassure the Committee that this is a material advantage and we will keep the closest eye upon it. I should say that on taking over this issue, I scrutinised these provisions very carefully to assure myself that I could put them before the Committee without hesitation, and this I do. I beg to move.
In making some observations on the government amendments put forward by the noble and learned Baroness the Attorney-General, I shall oppose the Question that Clause 105 stand part of the Bill, in which I am supported by other noble Lords. Listening to the noble and learned Baroness, I was to some extent relieved by the steps that have been taken. A lot of work has been done in a short time, but I retain some concerns and it is important that I express them.
The use of non-legal advocates to prosecute in contested cases is an extension of the current rights of non-legal Crown Prosecution Service staff. It is helpful, and I am extremely grateful to the Minister and the Attorney-General, to have been kept in touch with the nature of all these proposals and, in particular, that it is not intended that non-legal Crown Prosecution Service staff would prosecute in cases that could lead to imprisonment. That takes the position a long way. But it is important to remember that even in cases in which someone will not go to prison, there is a stigma in a conviction and it is extremely important that those who prosecute should do that to a standard equivalent to those who are legally trained either as barristers or solicitors.
There are criticisms, I have to say, and I have been told about them—some of them very recently—in relation to the way in which some non-legally qualified Crown Prosecution Service staff carry out their work. I understand that although the National Audit Office expressed the view that the Magistrates’ Association was satisfied with the way in which the non-legal Crown Prosecution staff conducted the cases, that is not the view of many members of the Magistrates’ Association. They are not, as I understand it, very satisfied: I am told that the Magistrates’ Association shares the Bar Council’s assessment that the proposal to extend the DCWs’ powers is all about cost-cutting. They are concerned that poorly prosecuted cases lead to longer and more expensive trials—and, of course, more expensive appeals and increased court and knock-on costs. I understand that the Magistrates’ Association gave a briefing paper to Peers in January, in which it said that it was opposed to this clause.
It is also perhaps of some interest that the Bar Standards Board, a new organisation, has a consumer panel that has been in touch with the Bar Council. It comments:
“The panel recognised the value of an independent “second look” at prosecutions by a lawyer before they proceed, rather than cases remaining wholly with a case officer who has undertaken the preparatory work. There is felt to be always the danger that, if a case worker has sole “end to end” involvement, they could develop a personal stake in the outcome and would also miss out on that independent review, provided by a lawyer, to assess the strength of the evidence. … The panel would not want to see speed of outcome outweighing the quality of outcome.
Given the importance we give to the fairness of the processes, and the quality of the work, the Panel did support the public interest concerns raised by the Bar Council”.
I felt it only appropriate to make those points on behalf of that board’s consumer panel. Therefore the Magistrates’ Association, the Bar Council and the Bar Standards Board’s consumer panel are concerned.
It seems to me to be, among other things, a matter of training and three sorts of training may be required: training in how to be an advocate as a prosecutor; training in important issues of conduct such as the pre-eminence of the duty to the court, and other matters of great importance; and the importance of the line manager. I express my concern that a Crown Prosecution Service employee who says that a prosecution should not proceed because it is inadequate, or that something is wrong with it will have to face the line manager to explain why that prosecution did not continue. So line managers will have to be trained—they may not be lawyers, but it will have to be explained to them that there is a duty on the prosecution not to proceed if the case should not go forward.
I am comforted by the noble and learned Baroness the Attorney-General in that the ILEX code of conduct and that of advocates in the Crown Prosecution Service are now being seriously considered with a view to harmonising them, as I think the noble and learned Baroness said, with the rules and practice of conduct of the Bar and of solicitors. If we are to have non-legal Crown Prosecution staff conducting contested trials, it is clearly important that they should be subject to the identical rules that apply to anyone else who is prosecuting. That, again, becomes a question of training.
I remain concerned. Many of my concerns have been relieved to some extent, but I should like to see one particular thing in the Bill. I have had discussions with the noble and learned Baroness the Attorney-General, who tells me that it is unlikely to be included, but I am concerned that the Bill does not provide that Crown Prosecution Service staff who are not legally qualified would not be engaged in prosecutions which potentially lead to imprisonment. I should very much like to see that in the Bill. However, I am comforted by the fact that I was given the current codes of conduct for both ILEX advocates and Crown Prosecution Service advocates, and I am extremely grateful to the noble and learned Baroness for these. They are infinitely better than I thought they would be but they could be improved.
Perhaps I may contribute to this debate by saying something with which I am sure everyone will agree at once: it is most important that there are appropriate restrictions on those who are entitled to engage in advocacy in our courts so that they are suitably qualified and conform to necessary ethical rules when they are so engaged. It is also important that those restrictions are no more than are necessary and that they are proportionate to the needs of the particular situation or case.
In my view, the government amendments to Clause 105—I stress, government amendments—are designed to ensure that the restrictions on who can appear are proportionate, and they are meant to enable designated caseworkers of the Crown Prosecution Service to act as advocates both in non-contested cases, in which they have been so engaged since 1998, and also, from now, in cases involving summary-only offences.
In the light of discussions and in the light of the Second Reading debate, the Government have pulled back from the position that they originally put in the Bill—hence, the government amendments today. To deal with the concern of many, including the Bar Council, that designated caseworkers should not act as advocates if the trial may result in imprisonment, then it is intended, as my noble and learned friend the Attorney-General indicated, that the DPP will issue instructions under the Prosecution of Offences Act 1985 to limit for the time being the use of designated caseworkers to cases where imprisonment cannot result from the trial.
That, of course, would enable some change at some future time so that, if designated caseworkers qualified and became fellows of the Institute of Legal Executives, they could act as advocates in more serious trials. However, Members of the Committee will have noticed that my noble and learned friend indicated that that should be subject to the qualification of the Attorney-General agreeing to the circumstances and the occasion of that extension.
Using instructions would certainly be more flexible than if the Act, by virtue of amendments made at this or some later stage of the Bill, unduly restricted designated caseworker rights of advocacy. I noticed that the noble and learned Baroness, Lady Butler-Sloss, welcomed the fact that adherence to the Institute of Legal Executives code of conduct would be fine, particularly if it was harmonised upwards—that was not her word—to ensure that it complied with and conformed to the Bar and the Law Society codes of conduct.
In summary, it seems to me that the advantages of the Government’s carefully crafted amendments are threefold. First, fully-qualified lawyer resources can be concentrated on complex and serious crime. Secondly, the method of approach and the possible extension in the future of the trial advocacy rights of designated caseworkers will enhance the diversity of pathways into the legal profession. Of course, it is in the public interest to ensure wider access to the legal profession over a period of time. Thirdly, we should not, if the Government amendments are accepted, put too much in the Bill unduly to inhibit the development of advocacy rights of DCWs in the future because of the method chosen in the government amendments which would not put restrictions fully in the Bill.
I totally disagree with the noble Lord, Lord Borrie, about not putting restrictions in the Bill. At Second Reading, I suggested that an ILEX qualification was the minimum that one would expect for DCWs who appeared in contested cases of any sort. I still think that that is the case. I also think it is very important that there be agreement on the standards to be employed by ILEX in looking at the way in which DCWs approach their job.
I am unhappy that we have a letter of today’s date setting out these proposals. This Bill has been around for some eight or nine months and only today we have proposals thrust on us with no chance at all to consult on or discuss them with interested parties. As a result, I shall reserve the position of these Benches on whether it will be necessary to table further amendments to this clause on Report. I shall consider very carefully, with colleagues and interested parties, whether that will be appropriate. The Government have come some way towards what is necessary, but there has to be a point where non-qualified lawyers do not have rights of audience and I am not sure that the line is being properly drawn in the terms of the letter that we have now received.
I want to record my complete agreement with everything that has been said by the noble Baroness, Lady Butler-Sloss. I am grateful for the manifest signs of revision and of hard work the noble and learned Baroness the Attorney-General has plainly put in since she took over. Like the noble Lord, Lord Thomas of Gresford, we need more time to consider the letter. I received a copy during the afternoon, for which I am grateful. It is very important that we do not rush this provision for reasons that are quite often missed. A prosecuting advocate in a magistrates’ court is quite often the only lawyer present, apart from the court clerk. A very heavy responsibility rests on him or her to ensure that the prosecution is at all times fair and that the court is never misled. As the noble and learned Baroness, Lady Butler-Sloss, said, the primary and overriding duty of the advocate is not to the prosecuting authority, but to the court itself.
I am grateful to see that the ambit of the designated caseworker’s abilities will be restricted in the way in which we have been told this evening. None the less these cases will often be brought against people who are unrepresented. Their livelihood and reputation may well be at stake even though these are not now imprisonable offences. We should take account of the grave misgivings of the Magistrates’ Association. As we were reminded yesterday, magistrates take 95 per cent of the cases tried in England and Wales. I think that it is in the order of 2 million cases every year. It is not just a question of being opposed, as it states in its briefing, which the noble Baroness, Lady Butler-Sloss, mentioned. It states:
“We are strongly opposed to this provision”.
That is an extremely important point. I should like to hear from the Attorney-General whether there has been any consultation with the magistrates with a view to assuaging their concerns, which were unusually strongly expressed—that was the association’s exact language. There has been some reassuring progress, which has not gone far enough to make me happy, but I am hoping that reassurance will be reinforced.
I gather that noble Lords received this letter this afternoon but have not had an opportunity to read it until an hour or two ago. I pay tribute to the amount of work that the noble and learned Baroness has put into this matter, with the obvious degree of thought that she has consecrated to it.
The position of the Opposition, like that of the noble Lord, Lord Thomas of Gresford, is to welcome the fact that the Government have moved considerably on this issue, but to reserve our position at this stage so that we can reflect further on the contents of the letter and consult with the parties with whom we have initially been talking.
I welcome government Amendment No. 116B, which will restrict the trial element to summary offences only. As the noble and learned Baroness says in her letter:
“This will remove the possibility … that the CPS might deploy a DCW to prosecute a trial involving a serious either-way offence before the magistrates’ court”.
As the noble and learned Baroness knows, many of us feel that DCWs should not undertake trials when imprisonment may result. She is reluctant to go one step further than Amendment No. 116B and put that in the Bill. However, she has found an ingenious alternative approach by means of Section 7A(3) and (4) of the Prosecution of Offences Act 1985. She explains that this section of the Act places a statutory obligation on the Director of Public Prosecutions to issue general instructions that govern the nature of the type of hearing in which DCWs might be employed. If the director wishes at a later stage to change these instructions, the Attorney-General must be consulted and satisfied that any extension is justified. The noble and learned Baroness assures us that the initial instructions that will be given by the director will be that DCWs can be involved only in trials involving summary-only offences that are non-imprisonable.
Although I salute the skill with which the noble and learned Baroness has woven this tapestry, I am hesitant about the operation of the mechanism. I do not think that consulting the Attorney-General—this is no disrespect to the noble and learned Baroness or any Attorney-General who might one day stand in her shoes—is a sufficient guarantee to your Lordships' House. I would like inserted into the 1985 Act an opportunity for Parliament to consider a change of the general instructions, probably by an affirmative resolution.
The debate in your Lordships' House tonight has ranged widely. With one hesitation about two of the things that the noble Lord, Lord Borrie, said, I agree with everything that noble Lords have said. It is especially important to underline a point made exceedingly well by both the noble and learned Baroness, Lady Butler-Sloss, and my noble and learned friend Lord Mayhew of Twysden. In quite a lot of these cases, the defendant will not be legally represented. We need to be sure that the designated caseworkers understand that their duty is to the court, not, or not primarily, to the prosecution. The point was especially powerfully made by the noble and learned Baroness that independent line managers must understand that. They must understand that, whatever view the CPS takes about the desirability of winning, there is a duty on the person who conducts that litigation over and above that institutional target. We need to be confident that that is not only well understood but operationally effective.
I note from the letter that negotiations are going on over the ILEX code of conduct; I wish them well. I am inclined to the view of the noble Lord, Lord Thomas of Gresford, that the ILEX qualification is the minimum necessary. I understand the noble and learned Baroness’s keenness to engage in providing for DCWs the new type of experience in magistrates' courts; but the desirability of developing the careers of DCWs cannot in itself be a key reason for doing what she seeks. I can see that it would have that effect, and I know that institutionally that effect is desirable; but I do not think that it can be the motive for making the change. It is a consequence of the change if there are other good reasons for making it. I therefore thank the noble and learned Baroness very much indeed for her letter. It was beautifully typed, and I have always admired her signature. I shall consider it intimately between now and Report, and I look forward to returning to these matters on that occasion.
I am so grateful to all noble Lords who have spoken, but I am particularly grateful to the noble Lord, Lord Kingsland, for his complimentary comments about the typing. I have always found the content of more interest.
May I say how much I agree with and understand the basis of the concerns that have been expressed about these issues? I reassure the Committee about the way in which these matters are dealt with. Many noble and learned Lords will be aware that we have in recent times introduced a new procedure for charging, so that a legally qualified prosecutor—a lawyer—determines the nature of the charges that will be laid and therefore has an intimate connection with the preparatory stages of the case. The designated caseworker will therefore not work on their own but will be part of a team. The level of participation appropriate for a designated caseworker will then be determined. I say straightaway to the noble and learned Lord, Lord Mayhew of Twysden, that he need not be concerned that a lawyer’s eye has not passed over the very precise issue of whether there should be a prosecution at all and, if so, on what basis. Qualified solicitors and barristers employed by and on behalf of the CPS remain available to designated caseworkers to assist them, so they are not cast adrift in that regard.
I say, too, to the noble Lord, Lord Kingsland, that of course it is not part of our role to seek to develop the career of a designated caseworker, but he and I both, I know, have a firm belief that we should seek to diversify those who come into the profession, to the benefit of the public and others. This means that introducing those who may not have thought of becoming a lawyer when they left school has proved to be very successful. We know how professions can change. The noble and learned Baroness, Lady Butler-Sloss, knows only too well how one can rise through the ranks from registrar to Lord Justice of Appeal and then to President of the Family Division—something that we have all benefited from and would like to see more of. I therefore agree with my noble friend Lord Borrie that these provisions are well founded and balanced, and I hope that, on mature reflection, when the noble Lord, Lord Kingsland, has an opportunity to consider the content and not just the nature of the typing, he will find that we have a good solution to what appeared to be a knotty problem.
I say, too, to the noble Lord, Lord Thomas of Gresford, that I understand that my noble friend Lord Hunt wrote on 8 February to the noble Lord, Lord Kingsland—a letter that was copied to the noble Lord, Lord Thomas of Gresford—providing details of the government amendments and the agreement with ILEX. He also wrote on 7 February, following up points made at Second Reading, so it is not quite fair to suggest that these matters have not been raised before. I take full responsibility for the letter. I knew that this matter would come to the Committee late, and I hoped in my common naive way that the letter might assist your Lordships better to understand the history, the nature, the content and the reasoning that the Government have put into coming to this resolution. I hope that the letter will do that in due course.
This is the noble and learned Baroness’s amendment, so she will have the last word. The letter assists us in showing how far she has got in her consideration, but there are other issues. There is a certain comfort in the fact that a lawyer will have looked at the charge, but the presentation of the case in court demands a knowledge of the laws of evidence, a knowledge of the ethics, and skills in presentation. We shall see whether those are all available. The noble and learned Baroness should also bear in mind that the clerk to the court does not have to be legally qualified, although in my youth—I dare say that it was not the case in her youth—the clerk to a magistrates’ court was almost always a qualified lawyer, which certainly is not the case today. One envisages a situation where you have an undefended defendant, an unqualified prosecutor, an unqualified clerk and magistrates of experience and wisdom, no doubt, but not necessarily legally qualified to pick up the problems that can arise in the presentation of a case, and not necessarily in a position to understand the niceties of what is happening in front of them.
Of course I understand what the noble Lord says about that issue, but it is important to understand, too, as I said earlier, that this is a team analysis. It will look at the nature of the case. It will look at the quality of the evidence that is to be produced, all of which will have been viewed by a Crown prosecutor of legal experience. It will give guidance in terms of the briefs that are given to caseworkers to carry out this work. One of the factors which the prosecutors will look at is whether the defendant is or is not legally represented. These are issues which may determine whether a designated case worker does the case or some other individual.
On this point, it is not so much the preparation that would worry me as what could go wrong in court. The noble and learned Baroness and I, and others in this House who have been lawyers and have practised in different courts, including the magistrates’ court, know that the way a case is presented is not the way the case goes, and things go wrong. It is in the tricky, non-custodial type of case, but which will be of importance to the defendant, that something can go badly wrong.
Two things worry me. First, at that moment there is not to be a single lawyer in court, as the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Mayhew of Twysden, have pointed out. Secondly, if it goes wrong, will the line manager understand or will the Crown prosecution non-legally trained employee really go partly wrong because he is afraid of what will be said back in the office? Not being a lawyer, he will not have had that independence of training.
I have a different point to make, which harks back to that made by the noble Lord, Lord Thomas. I am sorry that the noble and learned Baroness thinks that I have been rather churlish about her letter. I thought that I had gone out of my way to say how helpful it has been and how much we welcomed it. I do not wish her to be in any doubt about that.
The noble Lord need not trouble. I just know that I am back. I understand him perfectly and our good relations will be in no way tarnished by this evening.
Training is important and, of course, all this is predicated on having excellent training and skills that can be developed. The process through which designated case workers entertain this work is really quite impressive. I want us not to forget reality. It is true that there are many qualified solicitors, barristers and professors of law who one would not necessarily say were the most erudite, effective and succinct advocates. It is a skill which the whole of the profession benefits from and has to constantly hone, and I do not suggest therefore that designated caseworkers fall into a different category.
One has to bear in mind one further fact. If the Committee were to say that designated caseworkers as a group could not prosecute save in and except for those cases which are non-imprisonable and that was put in the Bill, those designated caseworkers who are currently qualified solicitors and barristers but discharge the role of a designated caseworker would, while they remain in that role, not be able to do contested work. I know that that is not what noble Lords would wish for, and indeed the Committee knows that full ILEX members are able to undertake any form of work in the magistrates’ court. The way we have crafted this provision would enable designated caseworkers who are barristers and solicitors, and those who are ILEX members, in due course to do all forms of work, restricting the non-imprisonable and other forms of work to those who have appropriate training and skills but are not yet members of the profession. I hope that in due course this will be something with which we can all be content.
On Question, amendment agreed to.
116B: Clause 105, page 71, leave out lines 5 and 6 and insert—
“(a) in paragraph (a)(ii), after “trials” insert “of offences triable either way”; (b) after paragraph (a)(ii) insert—”
116C: Clause 105, page 71, line 12, at end insert—
“(c) for paragraph (b) substitute—“(b) any powers of a Crown Prosecutor that do not involve the exercise of such rights of audience as are mentioned in paragraph (a) above but are exercisable in relation to the conduct of—(i) criminal proceedings in magistrates’ courts, or(ii) applications or proceedings falling within paragraph (a)(iii) or (iv).””
On Question, amendments agreed to.
[Amendment No. 116CA not moved.]
116D: Clause 105, page 71, line 27, at end insert—
“(5A) For the purposes of this section a trial begins with the opening of the prosecution case after the entry of a plea of not guilty and ends with the conviction or acquittal of the accused.””
On Question, amendment agreed to.
Clause 105, as amended, agreed to.
Clauses 106 to 108 agreed to.