§ 3.9 p.m.
§ Lord Benson rose to call attention to the current concern about the provision for criminal legal aid and to the need to consider ways of improving the machinery for negotiating levels of remuneration in the future; and to move for Papers.
§ The noble Lord said: My Lords, I should say at the outset of this debate that I was chairman of the Royal Commission on Legal Services which sat from 1976 to 1979 and that I was a member of the Roskill Committee which sat in 1984 and 1985. The reports of both have a number of paragraphs which are highly relevant to the subject that we are discussing this afternoon. In case I do not have an opportunity later, may I say how much we are looking forward to hearing the maiden speech of the noble and learned Lord, Lord Ackner. He is no stranger to this House, and his contribution will add lustre to our debate.
§ I have no wish to pick over the miseries of the past few months, which have seen the spectacle of the legal profession and the head of the judiciary being locked in conflict in the High Court. Suffice it to say that everybody who knows anything about this subject, whether within or without the legal profession, is distressed on behalf of both parties in the struggle and 981 feels very strongly that some alternative method of negotiation should be introduced to prevent any such situation ever arising again.
§ I want to concentrate on two things. First, there is the risk that the legal aid scheme will become a second-class service unless the legal profession is properly remunerated. Secondly, I want to explore the possibilities of some alternative means of negotiation. The facts are not in dispute. The Royal Commission on Legal Services observed that 10 years ago the earnings of the legal profession were falling behind the index of average weekly wage-earners and behind the retail price index. It made a number of other criticisms in connection with the way that legal remuneration is fixed and it said that the procedures were unfair and bad for morale and that the arrangements were a strong source of grievance. The position has worsened in the intervening 10 years and the remuneration now payable under the legal aid scheme is wholly inadequate.
§ The Roskill Committee said the same thing in a different context. It pointed out that the remuneration payable for the preparation of legal cases was wholly inadequate. This is a policy which is wholly incomprehensible because it is common ground that if any project is to succeed, it must be properly prepared, and if it is not paid for, it will not be properly prepared. That was one of the reasons why the Roskill Committee felt it necessary to point out that far too many cases are not being properly prepared and are not being properly presented to the courts.
§ The legal aid scheme was one of the great social reforms after the last war, but the Royal Commission was careful to point out that one of the planks on which democracy rests is the right of every citizen to have equal access to the courts and equal service to the rights provided by the law. Those rights are in grave danger of being eroded.
§ The consequences of these shortsighted and parsimonious policies are inevitable. The best brains in the legal profession are withdrawing from this branch of the service because it is not properly remunerated. Barristers and solicitors will not undertake this work. The result of that is that the legal aid scheme is in danger of becoming a second-class service. This is not fair to the citizen; it is not fair to the legal profession; and it does little credit to the claim we make in this country that justice is fairly administered.
§ The long-term consequences are even more damaging. We draw our judiciary from the ranks of the practising lawyers, but if the best brains of the legal profession are not prepared to enter this branch of the service, in 20 years' time the judges will be second class. Responsibility for that dreadful legacy rests fairly and squarely on the decisions made now. The Roskill Committee pointed out that it is necessary not only to maintain but to improve the quality of the judiciary. If it is to be further eroded by the factors I have mentioned, it means that the public will lose confidence in the judiciary and in its judgments. And the consequences of that are very grave indeed. What we are doing is to sow the seeds now of discord in the future.982
§ If the legal profession is to be paid more, it will cost money, and I am sure that in the course of this afternoon we shall hear the word "affordability". But I am satisfied beyond all reasonable doubt that the cost of paying the legal profession properly would be met many times over if a determined effort was made to streamline the legal procedures in the way recommended by the Royal Commission on Legal Services, by the Roskill Committee, by the inquiries now being made into civil procedures and the many other studies which have been made over recent years on this and related subjects.
§ I see from The Times of 13th May that the Lord Chancellor's Department is proposing certain reforms. Of course these will be helpful, and I am sure they will be welcomed by the legal profession. But it requires a much more dynamic and forceful attitude by everybody concerned in the legal process if the legal process is to be brought up to date and we are to cut away the huge overload and dead weight of complication which has been inherited from generations past. It will require a team of top grade administrators, who should be assisted but not dominated by persons skilled in the law.
§ Every great organisation needs a long-term plan so that it may define its strategies and ensure that the impetus of implementation is not lost. The Royal Commission made just such a recommendation seven years ago. It was repeated six months ago by the Roskill Committee. We are entitled to ask why this basic principle is not adopted for the purpose of bringing the administration of justice up to date and saving many millions of pounds of public money.
§ I now turn to the second subject, which is the machinery for negotiation. The present system has three defects. First, it is delegated to officials at too low a level, who are not themselves up to date in the practice of the law. Secondly, they do not have the power of decision and—I say it in sympathy and not in criticism—they are puppets dancing to the strings of the Treasury behind the curtains. Thirdly, they do not have the basic up-to-date independent evidence available in front of them on which fair judgments can be made. These three factors are a certain recipe for failure; and so it has proved in practice.
§ The Royal Commission on Legal Services foresaw this situation with great clarity. It was for that reason that it recommended that a review board should be set up which would advise on all forms of legal remuneration. This is even more important now because the Crown Prosecution Service has just been set up, and that means another Minister and another government department will be drawn into the affray. The restrictions which have been imposed upon the Attorney-General are even more severe than those which presently apply to the Lord Chancellor.
§ The characteristics of a review board of the type recommended by the Royal Commission are three in number. First, it should be, and be seen to be, wholly independent of the government and of course of the body whose affairs are being looked into. Secondly, it should fix scale and other fees so that fair remuneration is paid for work properly done. Thirdly, its findings and its reasons should be made public. Of course that is not the only method of a review board; 983 there are several different variations—but the principle is there. There is nothing unusual in it. It has been well accepted in other walks of life and has been well tested in the hot fires of practical experience. Examples involve the review board for government contracts, the remuneration of the armed services, doctors and dentists, nurses, pharmacists, the police, senior civil servants, the judiciary and, if I may remind the House, the remuneration paid to Members of another place and the allowances paid to your Lordships in this Chamber. It is eminently suitable for the legal profession.
§ In the final result the Government, of course, must settle the pay which is given to the legal profession for legal aid because it comes out of the public purse and the Government are responsible for the overall economy of the country.
§ But the great advantage of having such a body is that it is comprised of men of integrity. They are objective and independent and they collect all the essential facts and information on which fair judgments can be based. In the other cases that I have mentioned it has been the practice of successive governments to undertake to abide by the recommendations made, unless there is some compelling reason in the national interest to prevent their doing so.
§ I believe that these are the main topics that we ought to consider this afternoon, and I have only one further observation to make. Contentious matters should not be allowed to drag on, because they breed discontent, and this subject has dragged on for at least 10 years, as the public records show. I suggest to this House that the time has come to grip the situation. My Lords, I beg to move for Papers.
§ 3.20 p.m.
§ Lord Rawlinson of Ewell
My Lords, time was when neither House of Parliament ever sat on Derby Day, which was given over to a holiday and a flutter on the horses. I have a memory of when I was first the Member of Parliament for Epsom and Ewell 30 years ago. The inhabitants and the procession of carriages, led by the pearly kings and queens, used to flow down to Epsom Downs, and there there was also a flow of funds into the satchels of the bookmakers. I trust there is no significance in the fact that the powers that be have selected this Derby Day to discuss lawyers' fees and the lack of funds flowing into barristers' brief bags over the last few years. Limiting the debate to two-and-a-half hours certainly ensures that there will be restraint in the flow of words by, mainly, the lawyers who are to speak in it.
I want to thank the noble Lord, Lord Benson, for initiating this short debate and for introducing it so ably and so comprehensively. The public interest owes the noble Lord, Lord Benson, a great debt indeed. He was a very distinguished chairman of the Royal Commission which sat for many years and studied in depth part of all the problems affecting the legal profession. It is worth remembering that after hearing all that evidence—not relying on personal prejudices or preferences—which included the evidence of the Chief Justice of the United States, where there is a combined profession, and the Chief Justices from 984 other jurisdictions of the Commonwealth, it came out with the conclusion that it is in the public interest that the profession should remain in two branches.
Of course, there exist pressure groups and personal interests of certain people. But it is important to recollect that that Royal Commission, over which the noble Lord, Lord Benson, presided as a layman with such distinction, made the recommendation in the public interest that the profession should remain in its two branches.
With regard to the particular subject which the noble Lord has introduced in his Motion, I have to declare an interest—not a personal interest—as present president of the Senate of the Inns of Court and the Bar. Among the list of speakers there will be three of my predecessors, including the noble and learned Lord, Lord Ackner, who will be making his maiden speech here in your Lordships' House.
The very fact that there is this debate demonstrates the degree of concern over the present system. We cannot disguise in the profession the fact that it follows a sad and anxious dispute between the profession and the Lord Chancellor's department. That gives all of us great concern because of our personal affection for, first, the head of that department—a former colleague, an ornament, if not an institution, in the public life of the United Kingdom, who towers over the law and politics of England—and, secondly, for the department itself, with which I first had official relations nearly 25 years ago when I first became a Law Officer in 1962.
But times have changed since then. Certainly, as the noble Lord, Lord Benson, has said, over the last 10 years they have changed very much, and now the department is a great spending department of the government. The Lord Chancellor's department has dedicated and skilled personnel, but I wonder whether, in considering the machinery of government, there ought now to be regard for greater administrative resources and greater administrative specialists. The noble Lord, Lord Benson, has referred to this need. It is a small department, it is grossly overworked, and I certainly doubt its ability to withstand, and not to be overborne by, the juggernaut of the Treasury.
But in regard to the dispute it must be remembered that Parliament adopted the principle that an accused person in our criminal courts should be afforded the assistance of experts and expert advocates, and the government accepted the principle that those advocates should be paid a fair and reasonable reward for the work done. Therefore, if they will that purpose, the government must afford the means; otherwise we are dealing with a sham.
It is this obligation to be prepared to pay full fees which was analysed by the report of Coopers and Lybrand. That showed that for a barrister with 10 to 15 years' experience, a man of 33 to 40 years of age, to obtain parity with civil servant lawyers there needs to be an increase of 30 to 40 per cent.
Always, at all times, there will be the claim that this is a time of restraint and that the Government must introduce considerations of wider pay policy to 985 postpone, if not to deny, the payment of the fair sums. But in the face of that analysis, which was the first ever taken, the junior officials of the department were totally hamstrung and failed to undertake proper and appropriate negotiations. They failed to do that because of the overall government policy. Having regard to the principle which has been accepted first by Parliament and secondly by government, that must be a cheat.
Of course, I can judge what happened behind the scenes. I have no doubt that the noble and learned Lord who heads the department did all that he possibly could to obtain from the Treasury the money to do this. But the Treasury and the political managers refused to honour the principle, and the effect has been the sad and sour relationship between the profession and the department. It is a truism that if, through political expediency to gain temporary time, you let slip over a number of years annual increases which ought fairly to be made, then, when the cumulative increase is eventually required, it will appear extraordinary.
The Royal Commission made the recommendation—perhaps because of this—of the Advisory Review Board to which my noble friend referred. It is not a new principle. It is applied to doctors and the armed forces, as well as to we here in this House with regard to our expenses. Such a review board could create a reasonable system which could afford rational means of implementing the agreed principle. Therefore, I certainly support the review board with strong lay representation and I believe this could excise what has developed into a running ulcer in the relationship between government and the profession.
We have to remember that all who administer the law, all who oversee those who administer the law, and all who practise the law are playing a part in the process of providing justice and upholding the rule of law. Save for the defence of the realm, there is no more important or responsible duty for a civilised state. If a government—as they must, as they should, as they do—require justice to be done, in their turn they must be just and must honour their obligations to those on whom they rely to participate in this prime duty of a democratic state.
§ 3.29 p.m.
§ Lord Elystan-Morgan
My Lords, perhaps I, too, may thank the noble Lord, Lord Benson, for initiating this debate and congratulate him on the clarity and vigour with which he presented his case. As the noble and learned Lord, Lord Rawlinson, has said, the noble Lord, Lord Benson, has added very considerably to the debt which the legal profession already owes him.
I regard this debate as being one that is of crucial importance not only in relation to the remuneration of lawyers but also because it goes to something that lies at the very heart of administration of justice: the proper representation of a defendant before the criminal courts. I intervene briefly as one who has been for many years a solicitor and who practised thereafter for many years as a barrister, spending most of my time in criminal trials in the Crown Court. Indeed, I feel that I should be less than loyal to my 986 profession if I were not to seek to say a few words this afternoon on this matter. Nevertheless, my position is one of humility and embarrassment: humility on account of the great weight of distinguished professional representation that appears in this debate, embarrassment at having to speak about one's own income. That is an arid exercise when one has to do it with a bank manager or an accountant. It is even less pleasurable when one does it in your Lordships' House.
The provision of legal aid for criminal defendants is central to the administration of criminal justice. It follows, therefore—as both speakers who have preceded me have said—that it is axiomatic that those who practice under the aegis of legal aid must not be regarded as being diminished in status or in any other way in relation to the rest of the profession. Indeed, the Royal Commission, headed by the noble Lord, Lord Benson, recommended that there should be fair and resaonable reward for work reasonably done. That principle was endorsed by Her Majesty's Government very shortly after the publication of that Royal Commission report in October 1979. That principle has its echo in the legislation relating to legal aid over the whole of the last 35 years.
I venture to think that it is a source of pride and satisfaction for all who are concerned with the administration of justice that our legal system by and large, in relation to those who are represented by legally-aided counsel and solicitors compared with those who are privately paying, knows no distinction whatever in practice. There are two types of clients: legally-aided clients, and privately paying clients. But there is only one standard of skill and dedication for the advocate and for the solicitor who instructs him. If a fair-minded and intelligent observer were to look into a trial day after day at any Crown Court in this land, when, let us say, there were two men, one legally aided and the other privately paying, he would not know from the effort of counsel or the preparatory work of solicitors in that case who was legally aided and who was not. It would be a grave and sad day for the administration of justice were it ever to be different.
The question of the level of remuneration in relation to legally-aided defendants is in a sense a key to the question of remuneration for those who practise in the criminal courts. As the Coopers and Lybrand Report puts it, there is very little privately paid defence work in the Crown Courts. Almost the whole of it, I venture to think—about 97 to 98 per cent. of it—is legally aided. Prosecution work is in practice all publicly funded. That means that it is inevitable that the scales of pay in relation to prosecution work are largely governed by the levels of remuneration enjoyed by petitioners in relation to legally-aided work. Therefore, the level at which remuneration for legally-aided work is set determines in large part the general remuneration earned by petitioners in the field of criminal law altogether.
The Coopers and Lybrand Report of 1985 is a treasure house of very significant information. However, it is not a Domesday survey. It is a study which has great range and depth, but this is certainly not the place to deal with its detail and varied parts. 987 Indeed, it would not be correct in any event in the light of the fact that very delicate consideration is being given to many aspects of it.
In the few remaining minutes that I shall be on my feet I should wish to refer to the mood that dominates the criminal Bar at the moment, particularly among those who practice at the junior Bar, in relation to legally-aided remuneration. The mood is one of gloom and depression. There is a depth and intensity such as I have never seen before in my years at the Bar, nor during the years when I was a solicitor. It is a mood of fear, uncertainty, and frustration. It affects barristers in every part of England and Wales, though I cannot speak for my colleagues north of the Tweed. It affects barristers at every level of seniority. One could understand if this was a problem that was confined in some way to youngsters in their first faltering years of practice, but that is not so. There is a great deal of evidence to support the contention that it affects most harshly those who are at the very top of the junior Bar.
It has been my experience over the last few years to have the confidence of at least a dozen persons who are at the very top of the junior Bar. Two or three of them by now are circuit judges and leading counsel. The evidence that they give follows these lines. They say: "As compared with my position 10 years ago I find that my practice grew steadily with each case. Cases became heavier and heavier. I worked harder and harder. My earnings increased". These are people who do defence work in the main and depend very largely upon legal aid. But it was the evidence of each and every one of them that by the middle of this decade their earnings in real terms were a third to a half down upon what they had enjoyed in the middle 1970s. That I venture to suggest to your Lordships is a cri de coeur by people of the utmost probity. It represents a situation which is already grave and will grow worse unless it is tackled immediately.
In my submission, the case for a review body has been made out very clearly by the noble Lord, Lord Benson, and the noble and learned Lord, Lord Rawlinson of Ewell. I believe that it is an unanswerable case. Whatever arguments there may have been against such a body in 1979, those arguments have now disappeared. It is right that the noble and learned Lord the Lord Chancellor should be assisted in his difficult task. We accept that it is a task of agonising difficulty. We accept that he is deeply committed to the independence and strength of the Bar and to preventing any injury whatever to the system of legal aid. However, it is only right that he should be assisted by a body of independence such as that already described.
Perhaps I may make one last point. When one thinks of an award given in relation to legal aid—whatever the magic figure be, whether it be X, Y or Z—the public at large believe that is immediately translated by the application of that multiplier directly into the pockets of those who practice at the criminal Bar. That is not so. All that an award would do would be to raise the ceilings. In day-to-day practice when fees are claimed a figure is put into the column by one's clerk. The taxing clerk may have a totally 988 different view and may knock it down by 20, 30 or 40 per cent. Therefore, there is no direct relationship, as there is in the case of the award given, let us say, to teachers or civil servants, when an award is made in this connection. That is a problem that the House can consider no doubt on a different occasion.
I am grateful to the House for the attitude that it takes to this matter. Society at large is not, nor has it been throughout history, over-kind towards lawyers. The House is more fair, more generous even than St. Luke, who said, as the House will remember,Woe unto you, lawyers! for ye have taken away the key of knowledge".
§ 3.40 p.m.
§ Lord Wigoder
My Lords, I no longer practise; but I spent most of my working life in the criminal courts, sometimes prosecuting, sometimes defending, appearing sometimes privately and sometimes on legal aid. It was not perhaps the best of training for learning how to limit a speech to a maximum of 9 minutes. It is a period that gives me time, I think, only briefly first to thank the noble Lord, Lord Benson for the way in which he has introduced the debate, and secondly to say how eagerly I anticipate the speech of the noble and learned Lord, Lord Ackner.
In the remaining time that I have, I want to make only one point. I do not want to deal with half the subject of the debate, which is how those engaged in the criminal law should achieve fair remuneration. I want to deal simply with the question as to why those who are engaged in the criminal law should be offered fair remuneration. I want to make it perfectly clear that I do not suggest for one moment that the state owes barristers a living. When young people come to the Bar, they know perfectly well the difficulties and the obstacles. They know that it is insecure; they know that work is difficult to find. They know that fees are low; they know that, when they get work payment does not always follow. They appreciate all the problems. I do not think that it is for the state to take upon itself the burden of saying, "Here is a profession and if anyone enters it we will guaranteee him a living". That would be wrong, and it is not the basis upon which I would put my argument.
I think that one must also look at what the nature is today of those who are engaged in the criminal law. Times have changed very much. At the turn of the century the Old Bailey practitioners were widely regarded as the people with the least desirable attributes of any members of the Bar. Indeed, that approach persisted for many years afterwards. I well remember that, when I first came to the Bar just after the last war, there were still clear indications in the Lord Chancellor's Department of a belief that no criminal practitioner, however distinguished, could possibly be allowed to try the simplest running-down case, whereas on the other hand there was a belief that any civil practitioner could be appointed to the Bench and at once let loose to preside over the most complicated criminal trial. There are perhaps semblances of that still today; but I believe that gradually it has become realised that those who engage in criminal work require qualities of the same 989 degree—not necessarily the same qualities, but the same high skills as those who practise in the civil courts.
Inevitably these days most of the people who appear in the criminal courts from the Bar appear on one side or the other publicly funded. They do so, and when they do so they are participating in an essential function—and indeed in one of the most essential functions of a civilised society.
All political parties talk about the importance of law and order, how necessary it is to preserve it, how it is right that it should be promoted in one way or another. That commitment to law and order means nothing and will distintegrate unless the criminal courts upon which that commitment depends are properly staffed. That means having judges with the ability skilfully and competently to try criminal cases. It means having a supply of advocates on both sides: advocates for the prosecution in cases where people are alleged to have committed crime, particularly where the allegation is well-founded, who have the ability to conduct those prosecutions and to prepare them firmly and efficiently, and advocates appearing on behalf of the defence, particularly if the allegation may be ill-founded, who have the skills vigorously and fearlessly to carry out the function of defending those people. Let no one think that that is not sometimes a very difficult task. There are many occasions in a criminal trial when the whole might of the state is brought into action against a defendant. There are many occasions when the collective hysterical comments of the media are brought against a defendant. To conduct a defence in those cases requires a degree of independence, of judgment and of courage which is fair and absolutely necessary if, as I say, our system of criminal trial is to survive, and therefore our system of law and order is to survive.
That means quite simply that there must therefore be a steady supply of first-class talent to the criminal Bar for both sides, those who prosecute and those who defend. It means that when they are persuaded to come to the Bar, they must remain there and not drift off, as so many of them do, into industry, local government or the Civil Service. It means, indeed, as the noble Lord, Lord Benson, pointed out, that they must remain there until the stage at which they provide the necessary pool from which there can be appointed the criminal judges who play an equally important part in the whole process of the criminal law. One saw only this morning a report in The Times that the waters in that pool are now getting a little shallow perhaps, and that the noble and learned Lord the Lord Chancellor is already finding it not easy to discover skilled circuit judges to conduct complicated criminal cases.
Therefore, when one has this situation in which in a criminal case both sides are in fact funded by the state—and that I think is an indication in itself of a mature and advanced society—it is absolutely essential that the practitioners who carry out their duties should be in this position: if they are competent enough to secure for themselves a steady supply of work carrying out that invaluable task, they should then be in a position to earn adequate rewards—not 990 excessive rewards, no one is asking that for one moment, but adequate rewards.
One has only to glance at the Coopers and Lybrand Report to realise how far removed we are from that situation today. I know that one can make nit-picking comments about various parts of that report—of course one can. However, the fact remains that it becomes perfectly clear from that report, as was mentioned by the noble and learned Lord, Lord Rawlinson, that the competent full-time practitioner in the criminal courts today is earning some figure of 30 or 40 per cent. less than the average legal civil servant. I do not want to make any criticism of lawyers in the Civil Service. There is no conceivable reason why I should. But one has to bear in mind that there are certain advantages that they have in security of tenure, in index-linked pensions, and so forth, that are denied to the Bar. Without trying to draw any strict comparability in regard to the work that they do. I do not believe that anybody in your Lordships' House would contend that a lawyer in a government office is doing an infinitely more valuable job than a lawyer who is competently and fearlessly playing his part in a criminal trial.
In those circumstances, I would suggest that the case for fair remuneration for the Bar is made out. It is not made out because it will happen to help the Bar and will happen to be in its interests. I believe that the case for fair remuneration is made out because it is in the interests of society that we should have a Bar that will carry out those functions. That means that it is in the interests of every single one of us.
I know that when frequently reforms have been suggested in recent years the reply from the Lord Chancellor's Department has always been that reform cannot be afforded. The issue of fair remuneration for those who take part in criminal trials is, I believe, an issue upon which the Government and the Lord Chancellor's Department cannot afford not to offer fair remuneration. If that is to be decided, it cannot be decided by the exhibition of industrial muscle on either side, as though it were an ordinary trade union dispute. It can be decided only with the assistance of the sort of independent element, in determining what that fair remuneration should be, that has been so carefully and competently explained by the noble Lord, Lord Benson.
I hope that after listening to this debate the noble and learned Lord the Lord Chancellor will be able to persuade the Government that there is indeed a strong case for considering in the interests of society as a whole the matter that has been put forward—the case of the criminal Bar and the desirability of an independent element in helping to determine its fair remuneration.
§ 3.51 p.m.
§ Lord Bancroft
My Lords, I begin with three points. First, I offer a humble apology, since I may have to leave shortly before the end of the debate. Secondly, I wish to pay a tribute to my noble friend Lord Benson for his extremely cogent introduction to the debate following his admirable Royal Commission report. 991 My third point is that it would be both decorous and sensible if I were to make the briefest of interventions, as I am one of the only two non-lawyers speaking in the debate. That I promise to do. I speak from the point view of the consumer, as it were, of legal services.
My interest centres on the notion of introducing an element of independently collected evidence and independently assembled advice into the machinery for settling the remuneration for publicly funded legal work. My only qualification for intervening is that over the years I have had a little experience of both rationality and total irrationality in that general field. As a result, I prefer the review body procedure to the arbitration panel, and I prefer both to the present mishmash.
I am aware that the creation of a fees advisory board can be, and indeed has been, criticised on a number of grounds. The first is that the Government are abdicating a crucial responsibility. Secondly, it places too much power in the hands of a non-accountable body. Thirdly, it omits from the equation the critical item of the ability to pay. All those arguments are very old and are totally misconceived.
The proposed body, like the several others that already exist, and to which reference has been made during the course of the debate, would be advisory to the extent that it would be open to the government of the day to reject or modify the advice if there were clear and compelling reasons in the national interest for doing so. It is for the Government to make that judgment for good or for ill. I believe that I am right in saying that in their wisdom successive governments of both colours have almost invariably used that right of modification—in the case, for example, of the Top Salaries Review Board—but there has always been a public benchmark, whether honoured or not.
I regard it as self-evident even to the most raucous partisan of market forces that the present arrangement is no longer sustainable. To call it a system would strain both language and credulity. It places the responsible Minister and his officials in a totally impossible position, by interposing the say-so of the Treasury jack-in-office between them and the professions. I speak with due reverence for my former department, quoting the late Sir Thomas Farrer. It allows of no rational process of argument, let alone negotiation. It imposes a government incomes policy, the existence of which is then promptly denied. And it alienates two honourable professions from both the government of the day and the Minister, who has a wholly proper concern—indeed, if I may respectfully say so, in the case of the present Lord Chancellor and his pedecessor, a properly passionate concern—for the efficiency and health of the two professions.
But much, much worse, as my noble friend Lord Benson pointed out, it will end up with the provision of a second-class service to those of our fellow citizens whose circumstances require them to depend on publicly funded legal services. That would be, in the phrase of my noble friend, a truly dreadful legacy. I repeat that I speak as a consumer.
To those who recoil from a fees advisory body I can only say from my experience that it simply cannot help being an improvement on the existing arrangement. 992 That arrangement can be most charitably described as a moonbeam from a larger lunacy. Your Lordships will be relieved to hear that it is not my purpose to undertake any further lunar exploration today, in the interests of hearing the noble and learned Lord, Lord Ackner.
§ 3.56 p.m.
§ Lord Ackner
My Lords, 40 years ago I was sitting robed in counsel's row in the Inner London Sessions, one of the busiest criminal courts in London. I had not then entered pupilage, but I was doing so on the advice of my pupil master-to-be, who thought that I should get used to the novelty of the wig and gown pending his return from vacation.
Five young men were brought into the dock, all charged with burglary. Four pleaded guilty and the fifth man asked for a dock brief. As your Lordships may recall, the dock brief system permitted anyone in court, for the princely sum of £1.3s.6d., to retain the services of any barrister who happened to be there. As luck would have it, there were two barristers. With unerring discernment the accused chose the other one, who was the then editor of Archbold Pleading, Evidence and Practice in Criminal Cases, who regretted his inability to accept the kind offer since he was attending in order to prosecute the young man in question.
It was thus to my astonishment, and to the dismay of my client, that I achieved my first brief. I refer to that somewhat traumatic experience for two reasons. First, on that occasion, as I rose to present the defence, my voice sounded as alien to me as it does now, appearing for the first time before your Lordships' House. Secondly, with the exception of the court brief that a judge occasionally handed out when he wanted someone defended, for which the barrister was paid the handsome sum of £3.5s.6d., increased to £5.7s.6d. if the case lasted for more than three days, the dock brief was the sole source of criminal legal aid.
It was to deal with that parlous state of affairs that the criminal legal aid legislation was subsequently passed, providing for fair remuneration for work actually and reasonably done. I passionately believe that a strong and independent Bar is absolutely vital to the proper administration of justice in this country, and I know that the noble and learned Lord the Lord Chancellor takes the same view.
The same view was taken by two recent Royal Commissions. The first was under the late Lord Beeching and the second under the noble Lord, Lord Benson. But the Bar is at present being seriously weakened, and in an important area. Fifty per cent. of the Bar, both in London and in the provinces, depends almost entirely, if not wholly, on practice in the criminal courts. Almost the entirety of that work is paid by the legal aid fund and it appears to be generally accepted, at least in this House, that the members are grossly underpaid. I shall not deal with the figures in the Coopers and Lybrand report. I would rather refer to the position on the ground.
As a former chairman of the Bar Council, a former president of the Senate and treasurer of my Inn, I have done my best to keep au fait with what is happening in the profession. There are three matters of acute 993 concern. First, there is recruitment which is the very lifeblood of any profession. There are highly competitive attempts by applicants of very high calibre to get into chambers where the work is wholly or mainly civil, including of course an element of civil legal aid. Sadly, but not surprisingly, the reverse is the position in respect of criminal chambers.
Secondly, competent members of the Bar are leaving practice at the Bar, even going abroad in order to obtain a decent living. The Attorney-General, whom I visited in Hong Kong in 1984, told me that he was surprised, indeed shocked, at the number of highly competent members of the Bar practising in the criminal courts in this country who had applied for a very modest appointment in his office. I know that very recently there has been a substantial intake of members of the Bar into the Hong Kong Bar despite all the problems that face that country.
Thirdly, there is in England and Wales a flight from crime at the Bar. Those members of the Bar who are able to are turning as fast as they can from criminal work to civil work. I know that that is a fact because it has occurred in my own chambers and in a number of chambers in the Temple. As a result, there are growing up two Bars—a Bar that devotes its time essentially to civil work, which is properly remunerated, and a Bar dealing in crime, which is impoverished.
In a memorandum which we submitted to Lord Benson's committee, the High Court judges sought to emphasise how advocacy lies at the root of our trial process. We sought to emphasise what is often overlooked—how much the judiciary depend for the proper dispatch of their business upon the competence, the industry and the integrity of the Bar; and how if you reduce those standards you reduce the product of the efficiency and the justness of the courts. I suggest that my noble and learned friend the Lord Chancellor has perhaps done the judiciary too great a credit in the first sentence in the foreword of his little pamphlet on judicial appointments when he said that the quality of justice is largely determined by the quality of the judges who preside.
So much for the present, but what of the immediate future a decade or two hence? It ill lies in the mouth of a judge to talk about the merits of the judiciary, particularly when he is obliged to be noncontroversial. Therefore I quote with confidence from an article in The Times by the noble Lord, Lord Goodman, in 1966:We have a judiciary of great wisdom, great fairness of mind and absolute probity. It is to be doubted—and this is not a narrow chauvinistic claim—whether any country in the world possesses better judges viewed over the whole range of our judicial system".But circuit judges who try the bulk of criminal trials, trials before juries, are recruited mainly from practitioners in the criminal courts. Where, one might ask, in the year 2000 and beyond is the then Lord Chancellor to trawl for his circuit judges when the fishing grounds have been starved to near extinction? In an era when the efficient maintenance of law and order is so vital, a weak criminal Bar and a debilitated criminal Bench must be a national disaster.
I strongly support the setting up of an advisory committee to give objective advice on this difficult 994 subject. My noble and learned friend the Lord Chancellor may recall that many years ago he appeared for the hospital consultants before the Doctors and Dentists Pay Review Body. I appeared contemporaneously for the general practitioners. I like to think that our joint efforts and the wisdom of the government at the time, in applying the recommendations as and when the reports were made, helped to stem the medical brain drain.
As a judge I have appeared before the Top Salary Review Body on behalf of my brother judges. I venture to suggest that if the advice of that body had not in substance been accepted from time to time the number of senior counsel who, because of family commitments, found that it was impossible to afford to take a judicial appointment would have increased from a trickle to a torrent.
I am deeply grateful for the privilege of being able to make my maiden speech on a subject which I believe to be so vital to the quality of the administration of justice. I thank your Lordships for your courtesy and indulgence in hearing me.
§ 4.7 p.m.
§ Lord Templeman
My Lords, it is my pleasure and privilege to follow my noble and learned friend Lord Ackner and to congratulate him warmly on his maiden speech in this House. In the manner of his speech my noble and learned friend displayed that wit, charm and eloquence which made him such a formidable protagonist at the Bar; and in the content of his speech he demonstrated that concern for justice and fairness and the experience which has made him a renowned judge on the Bench.
My noble and learned friend has, and has maintained, great experience among all members of the Bar and of the other branch of the legal profession. As a member of the Bar Council and chairman and president of the Senate, he has great experience upon which to deliver that warning which he has just delivered and which we all hope will be given attention. We hope that my noble and learned friend will make many more contributions to the debates in this House.
My noble and learned friend Lord Ackner, and other noble Lords, have emphasised the public interest in securing reasonable remuneration for criminal legal aid. The machinery enabling the Lord Chancellor to consider and decide the proper rate for remuneration has for a number of years caused great discontent among respected and responsible leaders of both branches of the legal profession and it has caused great resentment among many members of the legal profession practising in the criminal field.
The resentment has stemmed from the fact that over the past 10 years their professional expenses have doubled and doubled again—expenses of rent, payment of salaries to their staffs and the expense of installing electronic and other equipment which every modern profession needs. Their personal expenses have also doubled and quadrupled. Their modest semi-detached house or apartment in Islington, within reach of the Old Bailey, is now nearer £100,000 than the £20,000 that it used to be near. As against that, 995 they have had genuine grievances about slow payment and inadequate payment, some of which have been acknowledged.
The recent unhappy and successful litigation by the profession against the noble and learned Lord the Lord Chancellor demonstrated that the complaints of the profession were well founded and that the present machinery for enabling the noble and learned Lord the Lord Chancellor to decide upon rates of remuneration is as unsatisfactory as the noble Lord, Lord Bancroft, demonstrated just now. It would be wrong to attribute fault to individuals, and I echo the words of the noble and learned Lord, Lord Rawlinson of Ewell, in his commendation of the officials of the Lord Chancellor's Department.
However, I suggest that it would be equally wrong to ignore the need for reform of the system, which everybody who has spoken so far has mentioned and which the late litigation has demonstrated. Of course, the final decision with regard to expenditure must be the responsibility of the Government, and no machinery for helping to evaluate claims to remuneration is perfect. But as the noble Lord, Lord Benson, illustrated, machinery has been devised on an ad hoc basis for everybody from doctors and dentists to pharmacists, firemen and teachers, some of whom are wholly dependent on public money and some partly on public money and partly on private money. I venture to suggest that some of their organisations have been far more strident and militant than the legal profession is likely to be, and that what has proved good for them will prove good for the legal profession.
I know that both branches of the profession are anxious to avoid conflict. They have been driven reluctantly to demonstrate that the present machinery is unsatisfactory. They and the public are entitled to have reform, and I hope that my noble and learned friend the Lord Chancellor will be able to indicate his acceptance of the principle that some change must be made and will acknowledge that it is not sufficient to say, "We shall go on in the same old way and you can trust us to do the best we can because we have the interests of the Bar, the solicitors and the public at heart".
No one doubts the good intentions of my noble and learned friend the Lord Chancellor, who has a great fund of affection available to him from both branches of the profession. But as the noble Lords, Lord Benson and Lord Bancroft, have said—and I would echo it—the time has come for machinery to be devised which will improve the present method of securing reasonable remuneration for criminal legal aid.
§ 4.12 p.m.
§ Lord Hutchinson of Lullington
My Lords, as one who over the last decade has watched at first hand the ever descending level of publicly-funded fees in criminal legal aid, I welcome this debate. I particularly welcome the outstanding way in which the noble Lord, Lord Benson, opened the debate, and I would suggest to the House that his arguments are really totally unanswerable. I also welcome the participation of the noble and learned Lord, Lord Ackner, who is one of the most effective chairmen of the Bar that we have 996 ever had and who is a Law Lord who has actually conducted cases and trials at the level of the old quarter sessions. As your Lordships have appreciated, his speech was like a breath of fresh air in this House, and the experience that he brings to the House is indeed rare on the Cross-Benches. Certainly I, and I am sure all your Lordships also, will welcome such speeches as he will make in the future that give the same attention to the practicalities of the subject on which he is speaking.
The Motion refers to the current concern about the provision for criminal legal aid. The noble and learned Lord on the Woolsack knows well enough that for some Members of this House (and I am among them) the concern has been deep and long-lasting. Over the years I have certainly warned him—and on occasions have had my knuckles smartly rapped for doing so—that the situation which existed in 1979, and which was confirmed by the Royal Commission chaired by the noble Lord, Lord Benson, has continued and has grown worse year by year. As we have already heard, the Royal Commission said that the present system is unfair, gives rise to a strong sense of justified grievance in the profession and gives the Government a complete power of veto on political grounds; and that the quality of the new intake into the profession is steadily falling. I have added to that—and I have warned the noble and learned Lord of it—the increasing drift away from the criminal practice of the more able and the frustration of the younger Bar which has now publicly and sadly exploded into outright anger. On top of this there is the forced collapse of the legal aid provision offered by so many solicitors of repute in London.
The Government rejected the Royal Commission's recommendation of an independent advisory committee and for seven wasted years the noble and learned Lord the Lord Chancellor has been wedded to direct negotiation. Mr. Robert Alexander, the distinguished chairman of the Bar, has described negotiations as wholly illusory and a charade—words which are far stronger than I, who have a concern for my knuckles, would ever have dared to use in this Chamber.
With publicly-funded fees forming more than 80 per cent. of all young banisters' incomes, it is indeed ironical in such circumstances to read of the noble and learned Lord's rejection of a Ministry of Justice on the grounds, among others, that it would undermine the independence of the Bar. If it is the concern of this House that the Bar should retain and preserve its vital independence, then the establishment of an independent review body that is equipped to carry out its own independent surveys and which will publish reasons for its recommendations for all to read should surely have an overwhelming priority.
Let no one suggest that we are debating a mere wage claim or that the criminal Bar is resistant to change. It is not the fault of lawyers that whereas in 1959 there were half a million crimes in a year, now there are over 2 million. If there is an increase in the incidence of disease, surely that is the last reason for cutting the remuneration of doctors and nurses. Certainly since 1974 the stated and reiterated view of the Criminal Bar Association has been that publicly-funded fees 997 should reflect the quality of the work done; in other words, that there should be value for money. The CBA has advanced a whole series of measures for increasing the efficiency and speed and for reducing the cost of criminal trials. It was the CBA which initiated the pre-trial review. It has put forward proposals for reform of the listing procedures. It has cried out for tape recording to be carried out in police stations and for legal advice to be made available in police stations. It has called for pre-trial disclosure, for bail courts and for a whole series of reforms for case preparation and the streamlining of committal proceedings. It has warned of the treadmill syndrome, which is the maximisation of court appearances by barristers, simply so that they can make ends meet, and at the expense of proper and considered preparation of work.
All these matters go to the very heart of the law's delays, as does the periodic prolixity of counsel, and to the failure of judges efficiently to conduct the trials that are before them. Neither are we dealing here with percentages, which are so dearly loved by the media and the trade unions. The Bar has put forward proposals for realistic restructuring of publicly-funded fees—sensible fee levels that will result in earlier and better preparation of briefs, in shorter trials and in a higher qualified and more efficient Bar.
My Lords, legal aid must be taken out of politics, away from departmental civil servants and placed in the hands of an independent advisory body as proposed by the noble Lord, Lord Benson, in 1979—a body which can genuinely fulfil the statutory criterion of a fair and reasonable reward for work reasonably done.
§ 4.21 p.m.
§ Lord Denning
My Lords, I would add my congratulations to my noble and learned friend Lord Ackner on his maiden speech. I heard his eloquence and ability when he was at the Bar appearing before us; I heard his eloquence and abilities when he was sitting beside me in the Court of Appeal, and today he has excelled himself in eloquence and ability in the speech he has given before your Lordships—so much so that I think I could say, as I have sometimes said in the Court of Appeal, that I entirely agree and there is nothing I can usefully add.
I will, however, add just a word or two. He goes back with his first brief to 1946. I was already a judge at that time, I go past that, long past, far, far back into the past when I had my first brief, when I had the dock brief. We were sitting in a row, it took a long time to get any practice in those days and a long line of us would be waiting to see if there had been a request for a dock brief. Then there was the good fortune of being chosen, seeing the accused in the cell, making the plea in mitigation, for £1.3s.6d., or if it went on for two or three days, it might go up to £3.5s.6d. That was the state of the law before we had the criminal legal aid system; one law for the rich, another for the poor, and very little for the poor.
The criminal legal aid system, or the legal aid system generally, is the greatest legal revolution in my time, the greatest legal revolution in the administration of 998 justice. I know the impact when it started. Now, every accused man is entitled to legal aid at the expense of the state, from the moment when he is arrested right through till he is tried and convicted or acquitted. That is a great piece of legal justice and the Bar and the solicitors responded in those first days. They expanded their numbers to deal with the greatly increased amount of work, they did their cases well and were well paid, or, shall I say, properly paid at that time.
I was impressed by what my noble friend Lord Elystan-Morgan said about how it has become different in these last 10 years, this last decade. The fees have not been commensurate with the economy of the time. The result is that the younger barristers are not getting the fees they ought to, you are not getting the recruits to the Bar that you ought to, and I fear you may not be getting the standard of service which you should have. If people are not properly paid, will you find them spinning out cases in order to get more fees? Will you have them advising, "Oh, go for trial by jury, don't go before the magistrates", in order to get more fees? No, my Lords, in order to get rid of any abuses you must see that the members of the Bar are fairly and properly remunerated for their services so that they can do their work well as a service to the community.
My Lords, I have only a word more. The Coopers and Lybrand report draws a parallel between the prosecution service and the defence service now to be put under the Attorney-General on a general level. Both of them are publicly funded in the interests of justice. The report compares the two. I will just read two short passages in paragraph 4:Almost all criminal work carried out by barristers is publicly funded. There is a close affinity in the fee rates for public prosecution and legally aided defence work. The former are decided post facto by Crown Court "taxing officers", the latter by Crown Court "determining officers", both employed by the Lord Chancellor's department, frequently the same people and always working on the same bases for decision.So there Coopers and Lybrand draw the parallel and then they draw the conclusion a little way further on when they come down to figures. They say they have compared:the salaries and conditions enjoyed by barristers in similar age groups in the government legal service. This demonstrates that the incomes of self-employed barristers who specialise in publicly funded criminal defence work would need to be increased by between 30 and 40 per cent. at current rates if they were to be put on a similar earning basis to government legal servantsMy Lords, there is the report by Coopers and Lybrand. I draw that parallel only because in principle there should be no difference whatever in the level of remuneration of those barristers who prosecute and those barristers who defend. They are both doing work of the first importance in the administration of justice. The country should see that they are fairly remunerated for their work. The only question at issue is, what is the best machinery for determining this matter? On that, I should like to endorse all that was said by my noble friend Lord Benson in his admirable report, now six years old.
§ 4.29 p.m.
§ Lord Roskill
My Lords, a plea of justice for lawyers does not often fall on receptive ears, but this afternoon that plea, so eloquently reinforced by the maiden 999 speech of my noble and learned friend Lord Ackner, and most noticeably by the speech of a former Permanent Secretary of the Treasury, is one which can no longer be ignored, even though it is not a matter which readily finds places in election manifestoes. It is a great pity that lawyers have always had the reputation of earning vast incomes. I sometimes think it was a great misfortune that Lord Mansfield was able to build Kenwood and Lord Eldon was able to leave a fascinatingly large sum of money on his death.
But, my Lords, those of us who have spent our working lives in the law know that that is very far from the truth and has never been less true than in the last 10 years. My noble and learned friend Lord Rawlinson of Ewell mentioned that there were three of his predecessors as president of the Senate speaking this afternoon. He will, I hope, forgive me if I mention that it is four, not three; in addition, two of them, one of whom is himself, were chairmen of the Bar. I mention that because between us I think we cover something of the order of the last 15 years, and if one adds those periods in which some of us have had the privilege of being treasurers of our Inn, we are all in the fortunate position of having remained in touch with the practitioners and have not, I hope, got that degree of remoteness of which the higher judiciary is sometimes accused.
We have been in touch with those who are suffering at the moment. They are entitled to look to us for support and to insist that we point out to the Government the failure of authority, which has made repeated demands on the legal profession for its services, to match those demands with adequate remuneration for the profession as a whole so as to enable the members of either branch properly to earn their daily bread.
There is this afternoon one matter alone on which I wish to touch. My noble friend Lord Benson mentioned the report of the fraud trials committee, of which he was a leading member, and I had the privilege of being chairman. The report was, we were both flattered to think, warmly greeted in your Lordships' House and the Government have pledged themselves to doing what they can to adopt anyhow some of the recommendations with a view to eliminating the plethora of fraud in the City. I want only to say that I hope that the recommendations which will be adopted—and my noble friend has touched on this—include those which are directly relevant to this debate.
First, we have recommended, to use a colloquialism, putting teeth into pretrial reviews to enable the trial judge to insist upon the central issues in a complex fraud case being properly and concisely defined. That requires that responsible counsel are present at the hearing and shall have read, marked, learned and inwardly digested the papers previously. Council must be paid, and paid properly, for that work. At present they are not. Pupils are sent and a pretrial revue is often little better than a farce.
Secondly, prosecuting counsel must be brought into complex fraud cases at an early stage and direct the course of the prosecution. It is quite useless to have a prosecution conducted along one line and for that 1000 course to be violently changed when counsel is brought in later as happens in the present day. Counsel must be brought in earlier and must be paid, and paid properly. That is not happening at the moment.
Thirdly—and these are but three of the points that we make in the report—younger prosecuting counsel must be trained by being brought into these cases as extra juniors at an early stage, so that they in their turn can learn the exceedingly difficult art of conducting prosecutions in complex fraud cases. That has not happened; it must happen. It requires money.
If the Government will only grasp the nettle of these complex fraud cases and make provisions for their efficient conduct and trial, as we have recommended, the figures in the report, which I invite your Lordships to look at, will show that large savings can be made. "Large" is too mild a word. The savings will be immense and they alone will offer a substantial source of extra remuneration for the criminal Bar.
Governments must realise that it is not just the earnings of lawyers which are involved. As has been said already this afternoon, it is the whole quality of justice which is at stake. Many of us who are now at the end of our career in the law have over recent years viewed with increasing alarm the downward trend which government parsimony has caused. The slippery slope is there. My noble and learned friend on the Woolsack, I know, is still fond of his Virgil. May I remind him of three words only: Facilis descensus Averni? It is all too easy to see the profession slipping down into those dark waters which will engulf it unless something is done to correct the slide away from the Bar and in due course a lessening in the quality of the judiciary.
I ventured to mention those three words in Latin. My noble and learned friend on the Woolsack will perhaps allow me to finish the quotation, this time in the vernacular:But to recall thy step and issue to the upper air—there is the toil, there is the task".Matters cannot be left as they are. As my noble and learned friend said, we all have the greatest personal affection for my noble and learned friend the Lord Chancellor and affection and respect for his able staff. But other steps must be taken, and taken properly. There is their toil; there is their task. It is to set up a body which will restore the confidence of the profession which is at the moment so sadly lacking.
§ 4.34 p.m.
§ Lord Griffiths
My Lords, your Lordships have had the pleasure of listening to the outstanding contribution to this debate of my noble and learned friend Lord Ackner in his maiden speech. You will readily appreciate that over a period of 25 years, when I found myself against Mr. Desmond Ackner I was up very early in the morning indeed. I should think that over the course of my career he probably owes me about six months' sleep.
I ventured to take part in this debate because I was president of the Senate of the Bar when the decision was taken to commission the Coopers and Lybrand report. I think that it is of some interest to consider the circumstances that led to the commissioning of that 1001 report. Over a period of two years I had listened regularly to reports from the chairman of the Bar's legal aid fees committee which was negotiating with the Lord Chancellor's Department on legal aid fees. It was quite apparent that they were totally sterile negotiations. They were getting nowhere. The cause was also apparent.
The Lord Chancellor's department was working under the shackle of the Treasury. It had nothing to give. Equally it was unthinkable that we had any real pressure to exert upon it. Ultimately in negotiations of that type the only sanction that labour has is to withdraw its labour, and it would be unthinkable that a profession committed to defending those whose liberty is at stake should withdraw its labour, however great the provocation might be.
But one of the arguments which was constantly put forward by the Lord Chancellor's negotiating team, and with some justification, was this: "You tell us that the Bar is earning so little, but your evidence is all anecdotal. You are not giving us any firm evidence at all and we can get barristers. How can we accept that in fact their incomes are as low as you say?". Those who were engaged upon our side of the negotiation were convinced that that was put forward in good faith (and I do not doubt that it was) and that the only solution was to obtain the firm evidence; and, indeed, they were encouraged to believe that if only they could put firm evidence before the Lord Chancellor's team that would give them the lever that they needed with the Treasury.
A decision was taken to use a not inconsiderable amount of our very limited senate funds to commission an extensive and very expensive report. I am afraid that I always had my doubts about its effectiveness, because I thought that the Treasury shackles might prove too hard to break, even with firm evidence. Sadly it looks as though I was right. Here is this report which shows that the earnings of a barrister 1002 working full time on legal aid in his mid career are 40 per cent. less than the earnings of a lawyer of comparable seniority employed in government service.
There was a great deal of debate as to how best to present the figures. There were those who urged a comparison with earnings at the private Bar; the Bar working for private clients. But I took the view, along with others, that that was unrealistic and that those who are working on the public purse, as are those who are engaged in criminal legal aid, cannot expect to be remunerated on a scale different from other comparable skills who are also paid from the public purse. It seemed to us that the nearest sensible comparison was the lawyer who was employed in government service; but what was the response to the suggestion that that was at least a basis for comparison? The answer was, "Comparisons are not useful". When one has arrived at that pitch, is not the answer that a new and fresh look is needed? I can see no way out of this impasse other than a totally independent review body. Of course one accepts that if such a body comes forward with an unrealistic assessment, it would be the Government's duty to reject it. However, there is no reason to believe that that is likely to be so. All the other professions which work in the public service have such review mechanisms and their recommendations are, on the whole, accepted, although occasionally they are staged. We have evidence that such a system works sensibly and fairly.
I need not elaborate the danger to the administration of justice that will flow from inadequate remuneration leading to a deterioration in standards because the Bar will not attract able people. That point has already been fully deployed by previous speakers. I give my full support to the suggestion that the time has now come for a review body to consider the remuneration offered to those who work for the legal aid service of this country.
§ 4.42 p.m.
§ Lord Meston
My Lords, I hope that I shall be acquitted of impertinence for venturing to participate in this debate in which so many noble and learned Lords and elegant leaders of the Bar are taking part. My only excuse for so doing is that as someone who endeavours to hack a living on the less rarified lower slopes of the law, I can at least declare an interest in the outcome of anything concerning barristers' legal aid fees. I hasten to join with the noble Lord, Lord Elystan-Morgan, in conveying to your Lordships the deep and continuing concern of the junior Bar in this matter.
I hope that it is also not an impertinence if I respectfully add to the congratulations to the noble and learned Lord, Lord Ackner. I appeared before him only once in the Court of Appeal after a solicitor persuaded me, much against all my advice, to take the case to the Court of Appeal. The noble and learned Lord found previously unrevealed strengths in my case and allowed the appeal. Needless to say, I never saw the solicitor again, but ever since I have had the greatest admiration and respect for the noble and learned Lord.
The legal profession is fortunate to have had the sustained and authoritative interest of the noble Lord, Lord Benson, in its affairs. He has crystallised our thoughts, and in the debate provided a catalyst, for which we are all most grateful. Looking at the two parts of his Motion, we can take as read that we are all well aware of and have had our attention well and truly drawn to the concern felt about legal aid fees. To find the Bar so dissatisfied with negotiations being carried out that it resorted to litigation would have been unthinkable had it not happened all too recently. I can only agree with noble Lords who have suggested that a hostile Bar is dangerous for the Government and that a demoralised Bar is bad for the country. There can be no doubt that the Bar has resorted to what it has done to show the level of dissatisfaction, and that can leave no doubt that every effort must now be made to take the resolution of fees and their level out of the courts and the political arena.
My noble friend Lord Wigoder eloquently described to your Lordships the importance of the criminal Bar's work. I should merely like to remind your Lordships of some of the problems of criminal barristers and criminal lawyers in general. It is not just a problem created by operating in an overexpanded profession, though that is sometimes a contributory factor. It is a peculiar problem, created by specialisation. If one specialises in criminal work, as distinct from commercial work, almost all one's work will be publicly funded. It is less and less easy to maintain a mixed practice—what one might called a mixed economy—because there is little private work available to subsidise legal aid work and there is, in the criminal field, little paper work available to supplement fees for court work. In other words, one is almost certainly likely to be wholly dependent on the state. There is also a problem created by the nature of the legal aid fund and the legal aid scheme, which is not a public service so much as a private service publicly funded.
1004 There is, as several of your Lordships have reminded us, a real distinction between publicly funded private practitioners and salaried lawyers and others such as the medical practitioners. There is no regularity of pay or work and fees are paid on a standardised basis and are subject to delay. I am bound to say that criminal legal aid fees seem to come faster than civil legal aid fees, but payment is still an uncertain process. It depends on the workload of the taxing officer at the time. For example, I was recently told by an acquaintance that his ability to go on holiday this year will depend upon his being paid for a long case which he had just finished in which a large amount of money had accrued. His payment also depended upon whether the taxing officer could get to the matter before he himself went on holiday.
All those problems are added to the ordinary problems of the self-employed person with professional expenses to pay, families to support, taxes to pay and bank managers to placate. It is not just a problem of the fictional young, struggling, briefless barrister. It is the struggle of the hardworking middle-aged barrister in a profession in which there is a unique requirement, if one is to get on, to take a leap into the dark in middle age and apply for silk. Last but not least, unlike what obtains for the employed barrister or his counterpart in the medical profession, there is no inbuilt pension scheme. When there is income tax, value added tax, clerks' fees, chamber expenses and other bills to pay, pension contributions out of income do not have the priority that they should.
Several of your Lordships have mentioned that lawyers fees will never be a vote-winning subject. We should never expect to be a special case but, as my noble friend reminded your Lordships, in few other professions does one realise quicker that the world does not owe one a living whatever academic or other qualifications one may have; and yet the myth of the "fat cat" lingers on but the evidence is to the contrary. The Coopers and Lybrand report shows clearly that there is hard evidence that there is precious little feline obesity at any level in the modern criminal Bar.
Clearly the Government must realise that the problem of fees will not go away. The answer is simple. Fair and reasonable remuneration must be achieved now, and if the figures are correct now we shall have a reliable yardstick for the future. The way to achieve that is to have a mechanism for maintaining fair and reasonable remuneration and for adjusting the figures from time to time. The way to do that is to have the type of review committee which the noble Lord, Lord Benson, has proposed.
All those arguments have been well ventilated in your Lordships' debate this afternoon. It need not even meet every year. If the figures are got right now and there are inbuilt inflation-linked increases, the need for such a review body to meet annually is arguable. It is not a revolutionary idea as a number of your Lordships have observed. There are several well-tried precedents. One has yet—at least this afternoon—to hear any arguments to the contrary.
This is not just a matter of private self-interest. There is a public interest in the calibre of lawyers attracted to and retained in the profession. It is not just a matter of enabling enough talent to be around that 1005 can be caught by the noble and learned Lord's trawls for judicial appointees. It is in the public interest to ensure the fairness and stability of our legal process through having ordinary practitioners of the highest calibre advising clients and conducting cases. I would mention briefly that the need for the calibre of barristers to be increased is itself affected if the levels of remuneration to those who instruct us, the solicitors, is based on the assumption that the solicitors' work will be delegated to unqualified people.
As several noble Lords have reminded us, we are brought up in the law to believe that careful and thorough preparation is essential to the good conduct of cases. I hope that I am not reducing the level of this high-calibre debate if I remind your Lordships of the adage of the barristers' clerks—that if you pay peanuts you get monkeys. If you want an independent and competent legal profession, it must be properly remunerated. We cannot store up problems for the future because of short-term requirements. There will be long-term damage if we do so. The inexorable logic of the arguments that have been advanced this afternoon, in my submission, cannot be answered.
§ 4.52 p.m.
§ Lord Elwyn-Jones
My Lords, seldon can this noble House have enjoyed such a feast of advocacy and eloquence, spoken with authority, to the extent of our debate today. I include within that general encomium not least the two junior members of the Bar who have spoken, my noble friend Lord Elystan-Morgan and the noble Lord, Lord Meston, who have movingly spoken of the real problems facing those members of the junior Bar now involved in the field of criminal aid. I was involved at the beginnings of the story. I had the privilege of holding the high office of Parliamentary Private Secretary to the then Attorney-General, Lord Shawcross. From those small beginnings we have reached the mighty ends of a broad legal aid service in both the civil and criminal fields. Now, however, we have reached the point where, clearly, the provisons in regard to criminal legal aid give cause for grave concern, as shown by the speeches of noble Lords who have been involved from day to day in the work of the courts and who have examined these problems.
I begin by congratulating the noble and learned Lord, Lord Ackner, on his powerful and delightful maiden speech. This has been rather a unique occasion. No less than three noble and learned Lords of Appeal have spoken. We would wish sometimes that they spoke more often. Happily, of course, the noble and learned Lord, Lord Denning, is always with us, ready and willing to take part in any matters that interest him.Hansard shows how many of those there are. Today, we have had the privilege of the speech in this legal judicial field of the noble and learned Lord, Lord Ackner. Most of us have shared the horrors of the first dock brief. Mine happened in Swansea. Fortunately, I cannot remember the details of it. I do not think that it was terribly savoury. I can therefore claim the very good reason of lapse of memory for not elaborating the information.
1006 The principal tribute is owed today to the noble Lord, Lord Benson, first for introducing the debate and, secondly, for chairing the Royal Commission. It was set up—I make no political point here—by an earlier Administration. It was my privilege to have occasional discussions with the noble Lord, Lord Benson, about the report itself. This emerged, powerful and well documented, after months of research and agonising investigation by a most distinguished body. Apart from the noble Lord. Lord Benson, the membership included the noble and learned Lord, Lord Templeman. It was a report of very considerable authority, largely but I think not totally unanaminous, if my memory serves me aright.
We have today reached a situation where, unhappily, a state of near crisis has arisen in the criminal legal aid field, and, sadly, in the problems of determining what should be the fees for criminal legal aid. I say "sadly" because it involves the noble and learned Lord the Lord Chancellor, dedicated to the Bar and a fighter for the rights and importance of the independence of the Bar and assisted, as I know from my six years' experience in that office, by a staff equally dedicated to seeking the best conclusion and service to the public. Now, however, we have reached a situation of deadlock to the point of unhappy litigation, about which I shall say nothing. It is apparent, at any rate by now, that we have reached a situation, clearly defined by the noble Lord, Lord Bancroft, former head of the Home Civil Service, where present arrangements are no longer sustainable.
That is a grave and serious statement. It underlines the pass to which we have come. What is now at issue is how to resolve an undoubted impasse. Can it be resolved by a continuance of the process of attempted negotiation? Or does it call for the intervention of a new element? If, this time, negotiations were perhaps to succeed, there will be cause, if not annually then frequently, for further estimates and examinations of the appropriateness of fees and arrangements. Even if, as we pray will be the case, there is a happy outcome this time, the task lying ahead is to ensure that this state of affairs shall not occur again.
We have had a vivid account and a good deal of evidence of the standards of reward and remuneration to the criminal Bar in today's debate. The public outside know that this has been a debate dominated by lawyers with only one person modestly representing the consumer. There were perhaps two consumers. As the noble and learned Lord on the Woolsack (from which he so helpfully makes comments from time to time) says, we are all beneficiaries of a well-regulated and well-conducted legal system, properly manned and properly administered.
The situation of the Bar has now been examined in great detail by Coopers and Lybrand, and their findings have been reinforced by those who have spoken today from their own experience of the process of endeavouring to deal with the situation and from their own personal experiences at the Bar. We have heard from the noble and learned Lord, Lord Rawlinson, who is now engaged in the responsibilities of chairing the Senate. We have heard from the noble Lord, Lord Wigoder, who was a distinguished 1007 practitioner in his time. I have already spoken of the noble and learned Lord, Lord Ackner, and the noble and learned Lord, Lord Templeman. The noble Lord, Lord Hutchinson, is as doughty a fighter at the Bar as in your Lordships' House. There are no holds barred when he is speaking. The important thing is not to be within punching distance! We have heard from the noble and learned Lord, Lord Denning, with all his experience, and the noble and learned Lord, Lord Roskill.
I am always tempted to translate into Welsh great phrases like, Facilis descensus Averni. I shall do so today: Maen rwydd i gwympo ond yn galed i ddringo, which translated means, "It is very easy to fall but damned hard to climb up"! However, I must not be tempted by the classical scholars here to break into the oldest subsisting European language.
The noble and learned Lord, Lord Griffiths, also spoke from his experience of the matter about which the expert investigators came to a clear conclusion; namely, that the present fee scales of barristers carrying out criminal legal aid work fall far short of the principle that fair and reasonable reward for work reasonably done should be provided. That is a finding which is made the more serious, perhaps—I shall not use the word "sinister", but it is certainly made more grave—by the consequences which those investigating the matter (Coopers and Lybrand) identified and which have been spoken to by noble and learned Lords who have taken part in the debate today. I am referring to the fact that there are indications of a declining quality of entry into the criminal Bar. I do not know whether the noble and learned Lord the Lord Chancellor will be able to give us any reassuring indications about that in his closing speech. I hope that he can do so. Of course we welcome the appearance of solicitors also on the Bench at various levels. But if those indications be the case, then the future for the judiciary of this country dealing in crime becomes a matter of serious concern.
There is also the information given by more than one noble Lord who has spoken about the flight from the criminal Bar—the tendency for the criminal Bar to be left to the least competent and the least qualified because of dissatisfaction with the financial rewards involved. These are serious matters which give importance to this debate, and they are matters of which I hope the public will become conscious and aware.
As has been said, this is not a debate merely or even principally about fees, although we shall all be suspected of having that motivation. There are so many tales that go to point to that. There is the story of the American who visited an English country churchyard. He saw on a tombstone the words, "Here lies John Smith, a lawyer and an honest man". The American observed, "They have strange habits in these parts. They bury two guys in one grave".
I have not overlooked the admonitions coming from the noble and learned Lord on the Woolsack. I am told that he must be sure to be on his feet by 5.19. We want to hear from him long before then, and so I shall refrain certainly from telling any further attempted jokes. However, I wish to underline the fact that I have 1008 now also come to the conclusion which has been unanimously reached; namely, that a powerful case has been made out for the fulfilment of the recommendations of the Royal Commission, and I hope that we shall get reassurance to that effect from the noble and learned Lord on the Woolsack.
§ 5.7 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, let me refer to one matter of reassurance. I had prepared a most eloquent speech anticipating this debate. For various reasons I have decided to scrap it, and the result will be a more scrappy speech but perhaps one that is more in tune with what has been said rather than with what I anticipated would be said.
As has been said more than once, this short debate has attracted a galaxy of talent, not least the maiden speech of my noble and learned friend Lord Ackner, a chivalrous if dangerous opponent at the Bar, but a much prized colleague on the Bench. I am sure that his speech was universally admired.
Having said that, the debate could hardly have come at a more awkward time for me. The proceedings, to which delicate reference has been made from time to time, have not yet been abandoned; they have been adjourned. The matter is therefore still technically sub judice. Moreover, they were adjourned for the purpose of enabling discussions to take place between the two professions of solicitors and the Bar—though most references have been to barristers' remuneration this afternoon—and myself, and of course parallel negotiations between the Attorney-General and the Bar and solicitors relating to prosecution remuneration.
Obviously I cannot take the House into my confidence to the same extent as I would otherwise have wished to do. However, I should be less than generous if I did not acknowledge my personal indebtedness to the sensitivity and kindness which the House and those who have participated in the debate have shown towards my poor person, gravely embarrassed, as noble and learned Lords realise I must be, in having to reply at this time.
I shall begin by referring to certain general matters which I think need to be said by a person in my position and by me personally. I am of course wholly wedded to an independent and vigorous legal profession, fairly remunerated. Secondly, I wholeheartedly accept the principle of fair remuneration according to work reasonably and actually performed. I should be wedded to that principle whether or not the words were embedded in statute. Otherwise I should be guilty of trying to defend work not reasonably remunerated in that manner.
Thirdly, I am wholly committed to legal aid in criminal cases no less than civil legal aid where the interests of justice require it. I would wholeheartedly endorse what has been said by my noble and learned friend Lord Denning, that it was perhaps one of the greatest revolutions in that sort of field in our professional lives. The fact is, however, that the cost of it has exponentially increased. I think in real terms it has doubled in the past seven years and in cash terms trebled; and that has obviously put the apparatus 1009 under strain. It may be no more than growing pains, but that has been so. I am less impressed with the cries of lamentation and foreboding which have been issued.
It is of course right that it is wholly in the public interest that the Bar and the solicitors' professions should continue to attract and retain a sufficient number of competent practitioners in the criminal as in other fields. But I do not think it has been mentioned in the course of this debate that since first I was Lord Chancellor in my first term of office the Bar has raised the standards of qualification for entry and it has doubled in numbers. That has applied to legal aid work no less than other fields. Although there have been parallel cries of lamentation from the solicitors—not heard quite so loudly this afternoon—the fact remains that in the current year there are more solicitors taking criminal legal aid work than there were before.
Moreover, I must say two other things in this field. I sometimes sit judicially upstairs. It is a great privilege that my father enjoyed every day and that I have to put up with on rare occasions. I should like to do it every day, as my father did. I do not see signs of a rapid decline in the quality of those who address your Lordships' House, whether leading counsel or junior counsel. Nor am I persuaded that the quality of the judiciary as they are recommended for appointment by me has visibly declined. What is true is that in fields other than criminal law, and perhaps to a lesser extent in criminal law, a potential judge has to suffer a great decline in his remuneration from what he is earning at the Bar.
Therefore I do not think that we are in the presence of impending doom to anything like the extent that some of the speeches to which we have listened would indicate. When I look, for instance, at the fees payable even under the present regime, which are allegedly wholly inadequate, I notice that the basic fee for junior counsel in the magistrates' court, all cases, and subject of course to taxation, goes up to a maximum of £330; jury trials, £385 maximum; cases prepared for trial in which no jury is sworn, £225; guilty pleas, maximum £135; appeals against conviction, standard fee £76, maximum amount £148; appeals against sentence, standard fee £55, maximum £77; commitals for sentence, standard fee £50, maximum £77.
Of course I am not saying that the Bar has not made out a case; that is something for negotiation. But the House, in judging the extent of penury being imposed upon members of my poor profession, should be aware of the actual figures involved, and that is why I read them out.
That brings me back to the situation in which we now are. Where we now are is that both the Lord Chancellor's Department and the two professions have accepted a timetable for negotiation. The preliminary discussions were concluded, I think, on 30th May, which was last week. I have to put forward tentative proposals on 27th June, for which of course I must carry my colleagues with me, and I shall return to that in a moment. I shall then be open to representations from the two professions, coming to a final 1010 conclusion in the discharge of my statutory duty on 16th July. So far we have kept up to date with the programme, and I have every intention of remaining up to date with it.
I said that I would have to carry my colleagues with me. It would be perfectly possible for me to avail myself of the bolthole provided by several speakers in the debate of hiding behind the grisly figure of the Treasury. I think it would be equally contemptible if I tried to do so. We in the Government are a collegiate body, and I must accept the statutory responsibility imposed upon me as though it were a statutory responsibility imposed upon me under which I had to arrive at an individual decision.
However, I must add to that general warning this other consideration, which is, as a matter of fact, that the Coopers and Lybrand report, to which frequent reference has been made, has been the subject of discussion between officials of my department and the barristers, the senate representatives in the negotiating committee. I have to tell the House that differences have arisen between my department's officials and the officials on the other side as to the assumptions and validity of some of the arguments presented.
That has nothing to do with the programme. I make no complaint at all that a distinguished firm of management consultants—of which I think the noble Lord, Lord Benson, is himself a distinguished partner—should have been consulted by the Bar. I think it was an admirable suggestion, so do not let my noble and learned friend Lord Griffiths in any way suppose that I am criticising their employment. Indeed, I have employed another firm myself, and in another connection I have employed Coopers and Lybrand, which shows how much confidence I have in them.
However, management consultants are a little like computers. If you put in unreliable data, you will get unreliable results. I have to tell the House in all candour that differences between my officials and the officials with whom discussions are taking place have arisen both as regards the validity of some of the assumptions and as regards the accuracy of some of the figures which they have been able to compare with the actual court records showing times taken for various classes of work, and the survey in March 1986 of practising members of the legal profession practising in this field of work.
It is clear therefore that these matters have to be cleared up, because I cannot conscientiously go to my colleagues and say to them, "Look, this has been claimed by the Bar, and they are asking for an increase of 30 per cent. to 40 per cent." when I find that there are outstanding questions of fact to be discussed and ironed out between officials. I hope that they will be ironed out in due course.
That brings me back to one or two of the fundamental problems to which perhaps too little attention has been given. The Motion refers to the existing arrangements. What are the existing arrangements? The first point is that Section 39 (3) compels the Secretary of State—nowadays that is me, the Lord Chancellor, and not the Secretary of State—to make 1011 regulations which have regard to the principle of fair remuneration for work actually and reasonably done. I have already said that I wholeheartedly embrace that principle. The statute is silent upon what the words "having regard to" mean. Do they mean the same thing as pay or do they not? It does not say so. It is also totally silent about what is relevant to the consideration of what is fair; what are the factors which the Lord Chancellor ought to pay attention to in deciding what is fair. These, as a matter of fact, are matters in dispute, maybe within the Government and certainly between the Lord Chancellor and the profession. These are not easy matters.
The next thing to observe is that the legal profession in this field is in a uniquely privileged position. I do not doubt that my colleagues who have to negotiate with other claimants on the public purse in the public sector want to pay people what is fair. It would be very odd if a government, of whatever complexion, did not want to pay what is fair, but the legal profession in this capacity is the only case, so far as I know, on the statute book in which the matter is written into the statute and for that reason and for that reason only may be subject to proceedings in the Divisional Court.
It does not really stop there. Let us consider the position of the Lord Chancellor, chased as he may be by other spending departments or the Treasury on the one side, chased by the judges on the other and harried by the profession which is naturally and quite properly asking for remuneration. That is absolutely unique; there is no other case, in deciding the fees for the prosecution, for example. The Attorney is not bound in that way.
I only mention this, not to establish that I am a poor old man. I do not ask for sympathy. I am a very lucky old man to have full-time employment and to be paid for the work actually and reasonably performed. But I have to say that one has to marry that with this proposal for an independent body. From my point of view, of course, that is a very attractive proposal indeed. If the independent body said to the Bar, "You already have enough", I should say, "The great and the good have spoken. Who am I to give you more?". If they say they must have a great deal more I would go to my colleagues and ask, "How can you deny the poor old Chancellor this boon, when the great and the good have urged him to take a more generous view?".
It would be convenient for Lord Chancellors, but does it marry with the statutory provision which puts upon the Lord Chancellor the duty to have regard to what is fair remuneration for work actually and reasonably done? One thing is quite clear: it would not in any way get rid of the danger of litigation. Let no one say that we should take it out of litigation, take it out of controversy, take it out of the courts and put it in the hands of a body, because the very suggestion is that when the great and good have spoken they would have to give reasons for their decision. If the Lord Chancellor followed those reasons he could be challenged in the Divisional Court for following them. They might have taken into account that which they ought not to have taken into account and they might have failed to take into account that which they ought to have taken into account; and there might be no 1012 health in them. Great and sound would be the denunciations from the judge who presided over the Divisional Court of the Lord Chancellor for following the great and the good.
Equally, if the Lord Chancellor did not follow the great and the good the Divisional Court would be able to anathematise him for that. Nor would it get this out of controversy. Do not let us concede that for a moment. The fact is that your Lordships will all remember what happened to the TSRB a year ago. I had letters from dear old clergymen. The altars of Mammon were flaming again because the Government had given in to the demands of the poor judges who wanted a little more. So it would not get rid of controversy; not at all.
But I shall say this, and this is about as far as I can go. I am not unfriendly to this suggestion. I never have been. I simply want to fit it in to the arrangements as they will be after the suggestion is accounted for. I cannot do it this time round; that is quite clear. I cannot do it before 16th July. Everybody must accept that this will not happen. Whether I like it or not, I am stuck with direct negotiations this year. If I could find the mechanism, whether by an advisory committee or otherwise, which would help to establish common ground as the basis for any decision which a statute required me to take and to improve and sweeten the atmosphere, I should greatly welcome that. I shall certainly think along those lines.
Having said that, I think I have been as candid as I ought to be—possibly more candid—and have taken the matter as far as the time limits will allow. I see I am coming up to 19 minutes and I am told I have 20 minutes. But I have tried to help the House as much as possible. I hope that no one will regard me as being disloyal to my profession. No one has suggested it for a moment. Indeed, the Financial Times last week condemned me as having a doglike and white knight-like devotion to its interest. I hope I have. I see nothing wrong with loyalty and I never have. Now my 20 minutes is up.
§ Lord Elwyn-Jones
My Lords, the noble and learned Lord the Lord Chancellor could have gone on and we should have enjoyed it if he had.
§ The Lord Chancellor
My Lords, we have to observe the rules of the House, and I now have to ask a Question from this position, two paces to the right of where I was a moment ago.
§ Lord Elwyn-Jones
My Lords, what about the noble Lord, Lord Benson? The noble Lord, Lord Benson, must withdraw his Motion.
§ The Lord Chancellor
My Lords, that is just what I was going to do. Does the noble Lord wish to withdraw his Motion?
§ 5.28 p.m.
§ Lord Benson
My Lords, may I make one short personal observation to remove any possible question of doubt? The noble and learned Lord the Lord Chancellor mentioned that at one time I was a partner in Coopers and Lybrand. I should like to make it clear, so that my own position is not in question, that I retired from that firm over 11 years ago. I take no part 1013 in their policies, their decisions, their work or anything like that. I had no part in the Coopers and Lybrand report.
This has been a curious debate. Usually conflicting views are expressed, but so far as I can read the temper of this House the whole House is looking one way. The noble and learned Lord the Lord Chancellor knows the affection and respect in which he is held. We realise that his lips are sealed. But there was a hesitation in the comfort which he appeared to offer to us. I realise that he possibly cannot go very far. But I hope that as the months go by when the uncomfortable negotiations are out of the way the longer-term future may be looked at to see whether some better form of negotiating machinery cannot be introduced along the lines suggested by so many noble Lords today. It may be that the statute is compelling; in which case let the statute be altered. We do not want laws which produce the wrong result. It only remains for me to thank your Lordships for taking part in this debate. I ask formal permission to withdraw my Motion for Papers.
§ Motion for Papers, by leave, withdrawn.