---

Criminal Justice and Immigration Bill

moved Amendment No. 82: 82: Clause 55, page 38, line 3, at end insert— ““( ) After subsection (1) (designation of non-legal staff) insert— ““(1A) A person designated under subsection (1) shall only be permitted to carry out any legal activity as defined by section 12 of the Legal Services Act 2007 (c. 29) if he has been authorised so to do by a body which is designated as an approved regulator by Part 1 of Schedule 4 of that Act or under Part 2 of that Schedule (or both) and whose regulatory arrangements are approved for the purposes of that Act.”””” The noble Lord said: My Lords, I move Amendment No. 82 and speak to the other amendments in the group. The general issue raised by these amendments is under what circumstances non-legally qualified CPS employees could appear in certain classes of contested summary cases in magistrates’ courts. Two issues divide the Opposition from the Government. First, what provision is needed in the Bill to ensure that the summary cases dealt with by non-legally qualified CPS employees should not carry with them a term of imprisonment? Secondly, as a consequence of getting this new power, should these non-legally qualified CPS workers fall within the full purview of the Legal Services Act 2007, passed less than a year ago? This matter was fairly fully debated in Committee, and since then the noble and learned Baroness the Attorney-General very kindly met the noble Lord, Lord Thomas, and me to see whether some resolution could be found to these two issues. Subsequently the noble and learned Baroness has also written to me explaining why that was not possible. I believe that she has copied this letter to the noble Lord, Lord Thomas. The first issue is the question of limiting the powers of these non-qualified CPS employees to summary offences which do not carry a term of imprisonment. Our view is that this should be firmly on the face of the Bill. The noble and learned Baroness says that this is not necessary; that if the scheme worked satisfactorily, it would in effect petrify the Government’s opportunity to elide summary offences which did indeed carry a term of imprisonment. She believes—and this is no disrespect to her rigorous analysis of any situation before she makes a decision—that if the CPS makes the proposal that now is the time, the fact that she would have to give her imprimatur, or that her successor would have to give the imprimatur, would be enough. Had that undertaking been given to me 10 years ago, I might have been more sanguine about the scheme. However, I recall that the Government proposed in the Access to Justice Act 1999 that qualified CPS lawyers should be able to become advocates in the Crown Court. I recall the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, saying that there was no need to worry because CPS lawyers would be advocates only in circumstances where there was a shortage of members of the Bar, and that these would be only very minor cases. What do we see today? We see the CPS advertising for experienced advocates to carry cases through from their initiation right to the moment when they make speeches to the jury. I have read recently the director of the CPS saying that in some parts of the United Kingdom he would expect, over a period of time, 25 per cent of criminal cases to be prosecuted in the Crown Court by CPS employees. This was never intended to be under the Access to Justice Act. I know that the noble and learned Baroness always strives to meet her undertakings; but with the best will in the world, I simply do not believe in an undertaking of the sort that she suggests. This limitation must be in the Bill. If in five years’ time the scheme works so well that we are convinced that we can move on, then there will be plenty of opportunities to change matters in a future criminal justice Bill. After all, I shall be amazed if there is not one such Bill every year for the next five years and probably for the next 10 years. I do not think it depends on which Government are in power. Just as night follows day, I think it is close to being that predictable. So that is the first issue. Secondly, if we are going to extend this right to non-qualified CPS workers, should they be regulated, as are all qualified lawyers, under the Legal Services Act, and in particular, should they be regulated by an approved regulator? The noble and learned Baroness, when we had our meeting with the noble Lord, Lord Thomas, explained how she was developing a scheme with ILEX—the organisation which looks after legal executives—so that non-qualified CPS employees should be able to sign up to the principles of ILEX. I do not think that the negotiations are yet complete, but the idea is that they would slot into the Legal Services Act at that point. I came away from the meeting with the impression—I cannot speak for the noble Lord, Lord Thomas—that once that deal was done with ILEX, the CPS employees themselves would then be regulated by the approved ILEX regulator. It turns out from the noble and learned Baroness’s letter that that is not so. She reminded us that this class of employee’s rights of audience at the court are granted under Section 77A of the Prosecution of Offences Act 1985, and she went on to remind me that, as such, they are specifically excluded from the Legal Services Act 2007 by virtue of paragraph 1(3)(b) of Schedule 3. I simply do not regard this as satisfactory. If this class of CPS employee is effectively to perform to the same standards as ILEX, why on earth should they not be regulated by the same person who regulates members of ILEX? It does not make sense to go through the whole paraphernalia of getting them signed up and then exclude the most important responsibility that ILEX has, which is to ensure that its own members live up to what they have signed up to. Why should these employees be excluded? I make that point a fortiori because it is precisely because these individuals are not legally qualified that they need close monitoring by an independent regulator. Otherwise, the only way in which they are monitored is through their contract with the CPS. I believe that for both those compelling reasons—a limitation to non-imprisonable offences in the Bill, and the requirement that non-qualified CPS employees should be subject to an approved regulator under the Legal Services Act—our amendment should be supported. I beg to move.