§ 5.13 p.m.
§ Second Reading debate resumed.
§ Lord Clinton-Davis
My Lords, the four speeches that noble Lords have heard so far have been quite outstanding. I shall now put an end to all that. The speech delivered by my noble and learned friend the Lord Chancellor outlining the purposes of the Bill was inspired by very careful thought. If I disagree with my noble and learned friend in some respects it does not indicate any criticism of the overwhelming purpose that he set out at the beginning of his speech. I urge my noble and learned friend to consider very carefully the point made by the noble and learned Lord, Lord Bingham, that the principles that he enunciated should be set out on the face of the Bill. That is an answer to some of the criticisms made about the exercise of his powers, which, as he will be aware, figure very substantially in a number of the briefings that have been issued to noble Lords prior to today's debate.
I declare one or two interests. First, I am a solicitor. Secondly, with my noble and learned friends the Lord Chancellor and Lord Archer of Sandwell, I am joint president of the Society of Labour Lawyers. My noble and learned friend has played a notable part in that society in seeking to advance the cause of law reform for very many years. The society is soon to celebrate its 1141 50th anniversary. Thirdly, for many years I was involved in running a solicitor's practice in a working class area of London. Indeed, like my noble friend Lord Mishcon, with whom I was an articled clerk, I did precisely that kind of work. Not only did I undertake a large volume of legal aid work but I believe that I worked overwhelmingly in the interests of ordinary people who desperately relied upon that form of work.
My practice was in east London. I have not been connected with it for about 20 years. However, such practices certainly cannot be regarded as being of the "fat cat" variety; they are the "lean cats" of the profession. They undertake work that provides access to justice for thousands upon thousands of people who would otherwise have little or no advice when needing it and little opportunity to obtain redress in the courts. While others have chosen more lucrative practices, as they are entitled to do, many outstanding lawyers have chosen to dedicate their lives to an area of the law that does not provide them with a very adequate living. It is right to pay tribute to those who have decided to devote themselves to this area of the law. I hope that nothing that we do will deflect young lawyers who come into the profession from their determination to provide exactly the same kind of devotion to service in the cause of justice. We must be very careful about the way in which we proceed as far as concerns this Bill lest we endanger that prospect.
Although I no longer practise in this area of the law, I understand that there has been virtually no increase in fees for the past four years, even taking into account inflation. Partners in those firms are responsible personally for the debts of the practice. They are not able to form limited companies and they are usually very substantially under-capitalised. I am not sure that that background is always perceived by the public outside.
Having said that, I agree with the objectives outlined by my noble and learned friend the Lord Chancellor. It is necessary to review the present system of legal aid, to identify and reduce excessive cost in the system, to reduce delays, and to deliver even greater access to justice. In parenthesis, in calculating the costs one does not often see a reference to the recovery of costs from defendants, particularly in personal injury cases, and the recovery of very substantial sums of money that go back to the Department of Health and Social Security as a result of the claims made.
While I support many of the proposals in the Bill I have serious anxieties about others. I propose to concentrate on my anxieties in the hope that they may be allayed by my noble and learned friend Lord Falconer in his reply, or, more particularly, during later stages of the Bill.
The replacement of the present position of all solicitors providing legal aid if they wish by a system of contracts between quality assured solicitors and the new legal services commission is a substantial change. It is obviously right that we should concentrate on providing efficient legal aid services. I do not accept any suggestion that the majority of the legal profession providing these services do not operate efficiently. From 1142 the many years of practice I had, I would say that the contrary is true. Of course there are some who fail to live up to the necessary standards. That applies in all professions and, of course, the legal profession is not immune. What I do ask is: why should all firms, having attained the standards of competence established by the Government's own criteria and having obtained a franchise, not be entitled to a contract in relation to those areas of the law to which their franchise applies? Is it to be the case that only firms with family, mental health or immigration franchises are to be eligible for a contract? What about those involved in social welfare law, housing, employment, welfare benefits and so on? I do sense a degree of inconsistency; perhaps I am wrong in coming to that conclusion. If so, I hope that my noble and learned friend will put me right.
Presumably the Government's response in part is that these matters can be dealt with virtually exclusively by agencies. I admire the work of most of these agencies but in my own experience I have come across quite serious instances where there has been a failure to provide proper legal advice, for example, in housing cases by citizens advice bureaux, or in cases involving notice to quit which used to be a matter of profound complexity and possibly still are. These are areas where a good degree of legal expertise is required, yet I found that on a number of occasions this simply was not forthcoming and the damage done was often irrecoverable. Perhaps this is not too serious a matter but I think it would be wrong to place too much emphasis on the work that can be done by agencies rather than by lawyers. There needs to be a blend between the two. Indeed, I believe that was a point made by my noble and learned friend at the very outset.
Undoubtedly, the number of firms doing work subject to the contract is going to be massively reduced—according to the figures, by something like 4,500 to 5,500. What are to be the consequences of that in the shorter term? Perhaps a situation will emerge whereby mergers will take place, but that takes time. I hope that in the meantime people who are vulnerable will not be exposed too suddenly to the changes that are going to take place. Time is needed for the situation to settle down.
Is there not also the risk of clients who are perceived to be more difficult to deal with and who take up a greater part of the solicitor's time being placed in some jeopardy? I give as an example the inarticulate. I well recall having to deal with, and trying to understand, for over a year someone who suffered from the most terrible speech impediment. It took a great deal of time trying to see the points he was attempting to make. Usually I had to ask him to write them down. But that was not very easy either. Would such a person fail to receive the advice to which he ought to be entitled?
Is there likely to be a caseload maximum imposed and, if so, are any overflow arrangements contemplated? All these are matters to which we will turn in the course of discussion in Committee and afterwards. I hope that they will be taken on board.
I turn to the question of the community legal service. It is of course important to enable the Government to give priority to legal services and to ensure that they are 1143 properly focused as envisaged in the White Paper and the Bill. But why is a discretionary system needed to replace the current objective test of entitlement? Evidently it is connected with the capping of the community legal service budget. I wonder whether that is a correct conclusion.
As far as criminal defence services are concerned, the majority of publicly funded services of this kind will also operate by way of a contract with private practices. I do not have any great problem with that, but the argument that in setting an appropriate fee practitioners must take the rough with the smooth may not always be the correct way of looking at matters. It could have damaging and unsettling consequences. In a complex criminal case those who practise in this field would agree that totally unforeseen situations can occur; for example, the critical need to employ a forensic expert which one may not have foreseen at an earlier stage of the case. Would it not be wholly inequitable if that cost were to fall directly on the solicitor involved? Should there not be a provision, therefore, that disbursements of this category should be separately accounted for and that perhaps the test should be determined by the trial judge in pre-trial directions or at some other stage during the case when the issue arises?
The noble and learned Lord Chief Justice put in a much broader perspective the issue of the Lord Chancellor's powers. I would very much appreciate hearing from my noble friend Lord Falconer his response to the great deal of criticism that has emerged.
I have one or two miscellaneous points. On the question of conditional fees I am not at all sure that sufficient research has been done. I am not sure that research has been done into the question of insurance, which was a point raised by the noble Lord, Lord Goodhart. I do not think that conditional fees can be applied successfully in the wide variety of cases in which my noble and learned friend seeks to put them. It reminds me of the memorable statement by Dan Quayle, the former American Vice-President, that if you do not succeed you run the risk of failure. I do not know how in some cases, for instance, matrimonial cases, a solicitor can be expected to undertake this aspect. I may be wrong, but how attractive is all this to the insurers themselves? What research has been done to enable us to come to satisfactory conclusions? Although it is true that insurance premiums are recoverable under Clause 28, they have to be paid for in the first place. As I understand it, they could be very heavy indeed. An inability to pay the premium could have the most dramatic and serious consequences for a litigant. We are talking about the lower income groups and the most vulnerable. What happens to them in that situation?
My noble and learned friend has certainly tried extremely hard to come to the right conclusions. Having said that I do feel that we need to look at this matter, reflect on it with great care, and not impose the system too rapidly. While some of the criticisms that I have read are, I believe, misplaced, in particular, about the criminal defence service and its lack of independence—I do not think it will work out that way—nevertheless, perception is all important in relation to litigants.
1144 I hope that the objectives which my noble and learned friend has outlined will be fulfilled. Above all, I hope that none of this will divert young people who wish to devote themselves to the less well paid parts of the profession from coming into it because without them the service which the profession can offer to the most vulnerable in society will be seriously impaired.
§ 5.30 p.m.
§ Lord Windlesham
My Lords, this is a large and timely Bill and one which is particularly suited to begin its passage through Parliament in this House. I shall confine my remarks to one aspect only; that is, the establishment of a criminal defence service for the stated purpose of:protecting the interests of individuals involved in criminal investigations or criminal proceedings".That is in Clause 12 of the Bill and although it falls short of a statutory duty, nevertheless, it is welcome as a statement of intent.
A comprehensive defence service is a completely new concept hitherto unknown in our criminal process. It is also something of a surprise. It does not appear to have been the subject of any prior consultation with the professional bodies whose co-operation will be critical to its success. In a letter published in The Times on 5th December, the Chairman of the Bar Council, Heather Hallett, Q.C. said:The White Paper boasts that its proposals are based on substantial consultation. Yet, the first we knew of the establishment of this new service, replacing the criminal legal aid system and with powers to represent a defendant from arrest to trial, was when the White Paper was published on December 2nd".That was the same date on which the Bill was introduced for the first time in your Lordships' House.
Why was that? Was it because of a shortage of time? Was it a last-minute decision? Was it, perhaps, fear of allowing time for opposition to intensify? Yet other parts of the Bill, some of them highly controversial, such as those regarding the rights of audience and rights to conduct litigation, had been published in advance, and there had been a discussion paper available before the Bill was published. So why was not the same done in the case of the proposed criminal defence service?
In his opening speech the noble and learned Lord, the Lord Chancellor, said that he did not envisage a move towards a criminal defence service staffed wholly by salaried employed lawyers. He added that this statement was intended to reassure those who doubted whether employed lawyers can be genuinely independent. That doubt has already been forcefully expressed in the debate this afternoon by the noble Lord, Lord Goodhart, who objected to anything approaching a public defender service, citing as his reasons a lack of independence and American experience.
Let us pause for a moment and consider the implications of those two criticisms. They will be made again in the course of the debates we shall be having over the next few weeks on the Bill, and they will be made—indeed they have been made—outside the House.
1145 As to independence, we have heard the noble and learned Lord, Lord Bingham, the Lord Chief Justice, speak earlier this afternoon. The construction of his speech was of such subtlety that I may not have caught every nuance, but I doubt that I am the only person in the House to be left with a clear impression that he did not share all the "apprehensions" (the word he used) which some senior members of the judiciary have expressed. It may be that we shall hear more of them in the debate this afternoon, particularly as regards rights of audience.
We look forward also with particular interest to the speech which we shall hear shortly from the noble and learned Lord the Master of the Rolls. Earlier in his very distinguished career, the noble and learned Lord, Lord Woolf, had some experience of working as an employed lawyer in the armed services. I hope that I reveal no breach of confidence in disclosing this to the House. I do so only because we can be quite certain that any case with which the noble and learned Lord, Lord Woolf, was concerned as an employed lawyer would not have suffered from any restraint whatever as regards the independent judgment which he brought to bear.
Next, I turn to the American experience. Over a period of years, I have had an opportunity to make a thorough study of the system of criminal justice in America and have been able to publish on that subject. I have learnt that although there are many outward similarities, the actual operation of the system of justice, and the forces which motivate it, are very different from what we know in this country. And so it is with public defenders. They vary in quality from state to state and between state and federal jurisdictions, from the very best to the very worst. Moreover there are two factors in the American practice which make any comparison invalid. The first is the existence of capital punishment and the handling of capital cases—prisoners held on death row—over a period which may be up to 10 years or more while challenges are made by way of habeas corpus applications before the courts. The second is the power of the prosecution to plea bargain. That is certainly something that we should avoid at all costs. Neither of those factors apply in this country.
It is for those reasons that I am sceptical about the claims made about lack of independence and the relevance of American experience. Consequently I do not share the hostility towards the Government's proposals that in future all qualified lawyers should have full rights of audience before any court, subject only to meeting reasonable training requirements. Indeed, it seems to me that the new defence service could be developed in such a way as to widen opportunities for that parity of advocacy skills found most often, although not exclusively, at the Bar. I add that comment in the presence of some distinguished solicitors. The noble Lord, Lord Mishcon, in particular has the respect of the whole House. We can all agree that such skills are the key ingredients of an adversarial criminal trial.
Of course, it is likely that money as well as professional competence will bear on the fairness of the criminal process. The White Paper envisages that most of the criminal defence service work will be done by 1146 solicitors. I note that Clause 17(1) provides that the overall expenditure is not to be cash limited. That is an important provision. In the majority of routine criminal cases it will be for the solicitor to decide whether to retain the services of a barrister. When he does, the barrister will be paid out of money received under a contract negotiated with the Legal Services Commission.
There must be a risk in that arrangement. In some cases, even if they are only on the borderline, an experienced professional advocate might be desirable but the solicitor administering the contract may be tempted towards a cheaper alternative. Such a result might be regarded as a legitimate response to market pressures, but would it conform to the requirements of justice?
I repeat that although there are critical arguments to be advanced against a number of features of the Bill, it seems to me to offer a solution to the long-standing problems of finding a way to curtail the apparently open-ended demand on public resources with which my noble and learned friend Lord Mackay of Clashfern had to grapple for so long.
The requirements of efficiency and value for money must not be allowed to take precedence over the interests of justice. Where clashes arise, as they will, who will reconcile them? I see a role for a strong director of the new service, supported by a staff of talented, public spirited employed lawyers. The core group of salaried defenders might be located in the same areas as the reformed and, we must hope, strengthened Crown Prosecution Service and establish similar links with the police and other agencies.
I have seen what can be done by inspired leadership in setting up new institutions which fulfil the highest ideals of public service. Since Lord Hunt died so recently, perhaps I might be allowed to mention his name as a shining example. He was the conqueror of Everest and the founder chairman of the Parole Board. If handled with skill and imagination—such qualities exist in Whitehall, although they are sometimes submerged—the new criminal defence service offers an opportunity to take a decisive step forward in the administration of justice. It could be, and it ought to be, treated as a counterweight to a reorganised Crown Prosecution Service.
In conclusion—and I pick up something mentioned twice by the noble Lord, Lord Clinton-Davis; once at the beginning of his speech and once at the end—as more and more young people are attracted to careers in the law this could be an opportunity to recruit some of the most adventurous and idealistic of them to take an active part in the creation of a brand new public service in which they, and we, could all take pride.
§ 5.43 p.m.
§ Lord Sawyer
My Lords, I rise to speak with some trepidation as I am not a lawyer. I am a potential consumer of such services and will not make a lawyer's speech. However, I believe in the law, in particular that access to the law and to justice is too important to be left to lawyers. That is why I am speaking briefly in this debate.
1147 I also believe that, for the wider community, the most exciting and radical step in the Bill, and the step which will promote real and improved access to justice for that wider community, is the community legal service. It will bring access to justice to many disadvantaged people who at present have legal rights in theory but cannot exercise those rights in reality.
During the last election, I worked for the Labour Party. I worked for the introduction of a community legal service as part of its manifesto commitment and I look forward to its implementation. I know that arguing for manifesto commitments in your Lordships' House can be a sensitive issue, but I hope that on this occasion we have an issue for which we can have majority approval.
I recognise that many individuals and organisations do their best to help disadvantaged people to assert their legal rights whether in the field of housing, employment, immigration, welfare or complaints against their local authorities. There are individual lawyers, citizens advice bureaux, advice centres and law centres all making an important contribution. However, not only is there a shortage of funds available to meet those needs, but there is a clear lack of co-ordination among the organisations which are doing their best to assist.
Moreover, the provision of legal services is itself fragmented. In some parts of the country there are solicitors who specialise in welfare law as well as high quality advice centres. But in other parts of the country there is a serious shortage. They are well described by some as legal advice deserts where there is nothing for those in greatest need.
It is surely wrong that in 1998 there are still huge gaps in our legal provision. It is wrong that in our developed democracy, in which we are all supposed to live equal under the law, large numbers of our fellow citizens are not in practical terms able to assert their basic rights under the law.
I support the Government's intention to put that right and to adjust the legal aid system so that more public resources can be moved to assist those who so far have suffered from little or in some cases no access to justice.
In an important way, the introduction of the community legal service is part of the Government's plan to modernise the welfare state. For too long, the most disadvantaged of our fellow citizens have fallen behind the rest of us, whether that be in terms of income, life style, housing or general quality of life. That also applies to a right to assert their legal rights. The Government are determined to change that and I welcome the Bill as a significant step in making Britain a more genuinely equal country.
§ 5.47 p.m.
§ Lord Hutchinson of Lullington
My Lords, as a lawyer no longer in practice—I know nothing about the criminal procedures of the living law—I am firmly of the view that octogenarian legal eagles should fold their wings and settle back in their nests, well feathered or not, unless a real matter of principle arises to which perhaps their long experience might contribute.
1148 In the Bill, I see three such principles arising. There is very much in the Bill to admire, and "access to justice" is an inspirational title. For one who practised at the criminal courts and met a larger cross-section of the general public probably than in any other form of court, it has always been my aim that access to the best should be available for the least favoured and the most stressed. Indeed, during those many years, what a long way we have come from the dock brief and what we use to call the PPD—the poor person's defence.
However, I must say to the noble and learned Lord that in his emersion in the intellectual stratosphere of the human rights jurisprudence he seems to have lost sight a little of the mundane area where human rights are mainly abused, which is in the criminal courts. I recognise that he is a Lord Chancellor in a hurry. Indeed, the way in which he presented the case exhibited that. However, Exhibit 31—Clause 31—extends the present limited rights of audience of state employees, prosecutors for the CPS and government departments to the higher courts for judge and jury trials.
I speak as a practitioner in those courts. I believe I am the first person in this debate to speak in that capacity. There has been a great deal of talk of what goes on in those courts from persons—I say this with the greatest of respect—who have never, ever conducted a prosecution or a defence in a magistrates' court or in a Crown Court.
My opinion is that it is of fundamental importance that prosecutions in those courts should be in the hands of advocates who are wholly independent of the police, the state and any prosecuting authority and should appear to be so. That is an essential protection of the preservation of the rule of law and our freedoms under a democracy.
Such prosecutors should not be perceived as promoting the interests of the state. They should not be appointed and paid as civil servants working daily, as they must, in the closest co-operation with the police, subject to all of the pressures of that involvement, the pressures of preferment, of success rates, of performance related pay, where the only yardstick of success is the number of convictions obtained and the throughput of cases. That is not what the public want, whether as jurymen, witnesses or defendants, particularly those who are pressured by an ever-powerful state.
I must say that I was somewhat astonished when the noble and learned Lord said that there is no rational reason why employed prosecutors who operate in magistrates' courts should not do the same in higher courts. Of course, 96 per cent. of crime is tried in the lower courts. Thousands and thousands of trivial motoring offences, including speeding offences, are tried there. We are talking about the 3 or 4 per cent. of cases to be tried in the Crown Courts, before a judge and jury: cases which involve long terms of imprisonment; cases which affect for ever the reputation of members of the public; and cases involving enormously important points of law which arise from day to day and affect the freedom of the individual. Advocacy in those courts has nothing whatever to do 1149 with advocacy in magistrates' courts. An appeal from a magistrates' court trial is a retrial, a safeguard, whereas an appeal from the Crown Court is allowed only on special grounds of appeal to the Court of Appeal.
Following Clause 31, of course, we have Clause 32. As the independence of the prosecutor is swept away, there emerges—10 days ago—predictably undiscussed, without warning to the public or to the profession, what I would call the sinister figure of the salaried state defender, paid, selected and controlled by the state. That fine warrior is to be sent out to do battle on the field of liberty and human rights, with his opposite number, his local colleague in arms, the salaried state prosecutor—an all-state contest. As many others have long predicted, introduce a state prosecutor and the state defender follows as night follows day—the dark night of dependence and control, the other side of the coin.
What next? Instead of the interests of justice being paramount, the culture of negotiated justice will prevail. With respect to the noble Lord, Lord Windlesham, plea bargaining behind closed doors will arise. Plea bargaining already exists, but not behind closed doors. However, there will be plea bargaining behind closed doors, pressures to abort trials, cosy relationships between prosecution and defence to maintain the conviction count and the volume of cases and to minimise the cost. That cosiness will soon extend to the court itself, which will be anxious to rid itself of the stubborn and determined advocate who wastes the judge's time.
We shall see a system—this is not far-fetched—of salaried prosecutors under the control of the DPP, supervised by the Attorney-General, defendants directed to the public defender's department and the rules governing the conduct and procedures of the advocates in court regulated under Schedule 5 of the Bill by the Lord Chancellor of the day.
That is the picture. The one thing that matters for the freedom of the individual and human rights in this country is the independence of the judiciary and the independence of the advocate. With the greatest of respect, and a modicum of dismay, I must advise the noble and learned Lord the Lord Chancellor that, at first sight, the new consultative panel, appointed entirely by himself and acting within the terms of Schedule 5, looks to me more like a consultative poodle than a consultative panel.
In this country it is the tradition that prosecutors do not press. They present the evidence as ministers of justice. They have to disclose matters favourable to the defence. They must exercise independent and objective judgment in the interests of justice alone. By definition, and with no disparagement or personal attack upon them, employed prosecutors cannot be, nor perceived to be, independent. No code of practice could alter that. There must be conflicts of interest between duty to the court and duty to the employer. There must be pressures from above, overwhelmingly from the police. There must be a personal interest in the outcome. Success rates affect preferment and are all-important. From time to time, the Serious Fraud Office announces proudly its 1150 percentage of success. A young man in my Chambers who announced a percentage of success in prosecutions would have his knuckles severely rapped.
State prosecutors never defend. They lack the essential balance and experience that that work brings and therefore disqualify themselves from preferment to the Bench.
The Glidewell Report on the CPS suggests joint units between prosecutors and the police, to be set up in police stations, to facilitate the charging of members of the public. Is that what the noble and learned Lord the Lord Chancellor described as "objectivity" and "independence"?
All that can be illustrated by a short look at the Matrix Churchill trial, the subject matter of the Scott Report, which we debated in this House not very long ago. Your Lordships will remember that the managing director of a company was charged with making false statements in licence applications to export goods for military use in Iraq. The Attorney-General forced Ministers, who knew quite well what was going on, to issue public interest immunity certificates to prevent disclosure of documents which would establish the defendant's innocence. Prosecuting counsel was instructed by the DPP to urge the judge to uphold those certificates and to prevent disclosure. Counsel for the defence blew open the duplicity of Ministers in that case. Counsel for the prosecution (who, I am glad to say, is now a High Court judge) despite pressure from the Attorney-General and from the Director of Public Prosecutions, exercised his own independent judgment and, as Scott found, entirely properly abandoned the prosecution and the case in the interests of justice. Had those advocates been paid by the state—been civil servants—do we really think that the outcome would have been the same?
The noble and learned Lord the Lord Chancellor says that advocates should be chosen for their skill and not because they belong to one part of the profession. Surely that is tautology. Are not specialist surgeons and neurologists part of the medical profession?
The noble and learned Lord also says that he is disappointed that only 1 per cent. of solicitors have become advocates since 1990 and that barristers still maintain their monopoly. Again, do not surgeons, air pilots and engineers have monopolies also, which are fiercely controlled so that the public can be sure that they are properly and sufficiently qualified? That 1 per cent. is obviously explicable. Advocacy is an extremely difficult and prolonged line of learning, taking years and involving heavy responsibilities. No one man can prepare cases and then present them in court. Advocacy is a full-time job. Advocacy cannot be put on like a hat or a wig. Solicitors, who have heavy work to do in their offices, do not want to become advocates—full-time, independent persons presenting cases in court. All professions must have restrictive rules to guarantee competence and reliability. Those rules are not facilely to be described as "restrictive practices".
In his White Paper, The Way Ahead, the Lord Chancellor states in the foreword:There are no 'no go areas' in the Government's determination to modernise our country".1151 Those words seems to echo the memorable statement of a previous great Labour lawyer, the noble and learned Lord, Lord Shawcross, who in earlier days said, "We are the masters now". I suggest to the noble and learned Lord, once more with the greatest of respect, that possibly he is mistaken. Jury trial, the independence of the judiciary and the independence of the advocate are areas where politicians should fear to tread. They are three pillars of our democracy—and they should not be undermined or tampered with.
§ 6.5 p.m.
§ Baroness Crawley
My Lords, I very much welcome the Second Reading of this Access to Justice Bill and I am glad of the opportunity to reiterate the words of appreciation of my noble and learned friend the Lord Chancellor to all those—and there are many of them—who bring such commitment, integrity and sheer hard work to the British legal profession.
As a non-legal person, a novice, speaking in such a debate, while preparing for it I looked up "law" in the Penguin Dictionary of Humorous Quotations, and I saw that the writer John Mortimer was quoted as saying that no brilliance is needed in the law; that nothing is needed but common sense and relatively clean fingernails. I have the clean fingernails, but that is about it.
Although not pretending to possess in any measure the skills and qualifications of my legal friends and colleagues in this debate, I have had 15 years' experience of representing Birmingham people as their local Member of the European Parliament. Because of that experience, I know that real access to justice is at the heart of people's drive for dignity and respect, and that, as my noble friend Lord Sawyer said, it is fundamental to a healthy democratic society. I know, because I have been made aware of it by my constituents, that so many people feel intimidated and insecure in seeking justice. I know that what might seem a simple procedure to many of us, of finding the right legal advice or walking into a solicitor's office, is a chasm of complexity, bewilderment and doubt for so many people. I know that, although some have no problem in knowing—and, indeed, in working—the system for very many others, the system, as it is, is failing them. In many ways, this Bill represents a long-overdue reform and modernisation which, at its best, will be a liberating force for millions.
Although the Bill's contents include reform of the funding of legal services, rights of audience, appeals, magistrates' courts, the civil courts and the criminal courts, I shall concentrate on that aspect of the Bill which covers the community legal service.
On 2nd December, in announcing the publication of the White Paper, Modernising Justice, the Lord Chancellor introduced the new legal services commission to oversee two new services: the community legal service and the criminal defence service, and to take over the £1.6 billion annual spending on legal aid. As we know, the commission will 1152 replace the Legal Aid Board. In that announcement, my noble and learned friend Lord Irvine, stated that:A Legal Services Commission will enable us to focus legal aid money on the people who most need help and get real value for money for the taxpayer. With the Community Legal Service—for the first time—we will be able to assess the grassroots legal needs in our communities and develop the services people really want".The Lord Chancellor went on to say,We will be able to put money into innovative, alternative ways of resolving disputes. Going to court is not always the best answer".At its best, I believe that the community legal service will open up access to justice to many more communities than is the case at present. I welcome the fact that such access to justice will be delivered through a new, cohesive network of service providers of consistently measurable high quality. Those seeking legal advice for their difficulties should now find the most appropriate help that they need.
The community legal service will not, of course, begin life in a vacuum, but will find partners in other existing funders of advice and information services in order to create a local, regional and national map of provision where priority needs are accurately pinpointed, and where common criteria are quality assured. These aspects of the Bill are very much welcomed by groups such as the National Consumer Council. The possibilities that the new community legal service offers for new ways of assessing cases is particularly exciting and should offer a much higher quality of choice to consumers and act as a downward pressure on consumer costs, which has to be welcomed.
I understand that the implementation of the community legal service is to be piloted in five local authority areas from January 1999. I know that that experience will be invaluable in assessing how best to partner existing CABs, law centres and advice centres within the new framework of the Bill.
As a non-lawyer, I was hesitant to take part in this debate today alongside such able legal practitioners as my friends and colleagues. I am reminded, in my audacity to take part, of the time many years ago when I rang my mother to tell her that I had agreed to become treasurer of my local Labour Party branch. Her immediate reaction was, "Oh! Christine, why did you do a thing like that; the Labour Party has always been very good to you".
However, I want to take this opportunity to welcome the Access to Justice Bill as a very important part of this Government's mission to make justice open, inclusive and equitable. There is a film starring Paul Newman called "The Verdict"—it was made in his later period—in which he plays a lawyer fighting a seemingly hopeless case. At one point he talks about the justice system in which he works. He concludes that that system does not actually provide justice, but provides only the chance of justice. This Bill could offer to a great many people the chance of justice, which they have been unable to grasp until now.
§ 6.12 p.m.
§ Lord Woolf
My Lords, I follow the elegant words to which noble Lords have just been listening, conscious 1153 that it was my intention to focus not on some of the issues which have inspired such heat in the debate so far, but to deal with the assistance that this Bill gives to the general programme of civil justice reform which is taking place in this country at the present time. However, in deference to the comments of the noble Lord, Lord Windlesham, perhaps I may at least make this clear. As regards the general aspects of the Bill to which I have just referred, I am conscious, as is the Lord Chief Justice, that very many members of the senior judiciary have very great concerns. However, like the Lord Chief Justice, I do not share those concerns to the same degree.
In particular, as regards rights of audience, with which this Bill deals, I am conscious that it does so in two ways. It makes specific proposals concerning employed lawyers and extends rights of audience as regards employed lawyers. On that subject, although I have been a designated judge for a shorter period than the Lord Chief Justice, I am totally convinced that the present machinery for dealing with rights of audience of that kind is inappropriate. The result of the present procedures produces only stalemate. I am quite convinced that the time has now come when this very important subject should be discussed by Parliament and it should reach a decision on it.
The arguments which can be advanced are finely balanced. There are dangers which one anticipates if one has grown up, as I have, in the law and for a time both prosecuted and defended criminal cases. One knows how important is independence. But as the noble Lord, Lord Windlesham, indicated, during my national service I had an opportunity for a very short period to see how professional, employed prosecutors appeared before courts martial and showed the independence which I regard as absolutely critical, notwithstanding the fact that they were serving officers and did not have the support that any independent member of the Bar has when faced with difficulties in knowing that he does not have only one source of work.
If Parliament takes a decision about the role of the employed lawyer, then it seems to me that much of the difficulty goes out of the whole subject of rights of audience because the question of whether employed lawyers should have rights of audience is the solely important subject which yet remains for determination. Of course, there will be specialist bodies who will seek rights of audience, but they are not going to create the same issues as the question of employed prosecutors and defenders do. Equally, I venture to suggest that in the civil field the use of employed lawyers does not raise the same acute concerns which arise in the criminal field.
That being so, it seems to me that the proposals contained in the Bill requiring the Lord Chancellor to consult and then to proceed by way of statutory instrument, subject to the affirmative process, provide the only appropriate safeguards that are needed. I have heard of no alternative which would be more satisfactory. I saw a handout from the Law Society on the subject and a suggestion that perhaps it should be a task for the Master of the Rolls to perform. I am flattered by the suggestion, but I do not believe that that is practical. As the Lord Chief Justice said, it is part of 1154 the responsibility of the Lord Chancellor in our constitutional framework and he must take that responsibility.
Turning away from that high ground to more modest proposals contained in the Bill, I particularly welcome the proposals made in relation to the Court of Appeal for which I am responsible. As to these proposals, there was the required consultation. I am glad to say that the concerns which were expressed by members of the Court of Appeal have been taken into account in the proposals which are now made.
The proposals are designed to achieve greater flexibility in the use of judicial resources and also to achieve more sensible and proportionate appellate tracks for appeals; they are needed. The Court of Appeal will have to face additional work of considerable proportions as a result of the proposed civil procedure reforms which come into force next April. In addition, there will be the impact of human rights as a result of the Human Rights Act. We are fortunate in the calibre of the judiciary in the Court of Appeal, but the latter cannot be made more effective merely by increasing the number of judges. That being so, we have to find ways of dealing with cases which are proportionate to the issues involved.
It is most important that those who have small cases which are not complex not only have a proper form of trial at the first instance but also have an appropriate form of trial on appeal. In many situations, what is needed is a form of local review at a local court rather than those cases having to come, as at present, to London. The reforms contained in Part IV of the Bill are designed to give the necessary flexibility.
Another small reform which is included in the Bill is one to which I attach importance; namely, the question of conditional fees. At present, conditional fees are providing a means of obtaining access to justice in a small range of cases, which was not available before their introduction. Conditional fees are not a panacea; someone has to pay the uplift involved in using conditional fees. Someone also has to meet the insurance premiums involved.
One of the problems faced by those who bring proceedings within the area now covered by conditional fees is that, all too often, defendants—and by "defendants" I want to make it clear that I am really referring to insurers—do not dispose of those cases as early as they should. As a result, considerable distress is caused to members of the public who often have to wait substantial periods of time before their litigation is concluded. In many cases the latter is concluded on the day that the case is listed before a court when, for the first time, a sensible offer is made.
The proposal that those who have to resort to a conditional fee in order to have the benefit of legal representation should be able to recover the uplift and also the insurance premium must surely be a just and sensible suggestion. It is my belief that it would help to bring about a change in the culture which we would like to see; namely, that when claims are put forward they are disposed of much more rapidly, much more sensibly and, indeed, much more appropriately than they are now.
1155 There are other matters in the Bill to which I attach importance. Here I particularly refer to the legal services commission. I endorse most strongly what the noble Baroness, Lady Crawley, said on that subject. If we are to have a service provided by the civil courts which meets the needs of the public, it is very important that the public should be able to obtain the representation which they need. Alas, as the noble and learned Lord the Lord Chancellor pointed out in his introduction to the Bill, legal aid is reaching fewer people at greater expense. That process cannot continue; we have to find other methods. It seems to me that a new body, such as that proposed, should be able to take initiatives which will achieve greater availability of the necessary legal advice for those who are in need in a better way than is possible under the rather rigid structures provided by legal aid at present. There is a great need for the use of new technology and there is a great need for the unbundling of legal services so that those who want to receive the benefit of legal advice can receive it in a way which they can afford and, if they cannot afford it, in a way which can be provided by the state.
When the Human Rights Act comes into force it will be of little value if it is not able to be used by the public at large. It is no use having rights if you are not in a position to enforce them. Reference has already been made to the need for an independent fund to allow public interest cases to be advanced. I very much hope that the legal services commission will be in a position in due course to take that matter forward. It is perhaps one of the shortcomings of the Human Rights Act that it does not make provision for a human rights commissioner, although that shortcoming could be met if in fact the legal services commission can do what is necessary.
However, in regard to the legal services commission, I must confess that I do have concerns that there should be an unrestricted power on the Lord Chancellor to give directions. For other aspects of the Bill, it seems to me that he has put in place appropriate mechanisms to ensure that there is a required process of consultation and that that consultation will take place in a way which will enable the Lord Chancellor's decision to be scrutinised. Whereas I could understand that the Lord Chancellor should have power to give directions to the Legal Aid Board, I urge that reconsideration should be given as to his ability to give directions without first undergoing a process of consultation to the legal services commission. I believe that that commission has a wider power than that enjoyed by the board which it will replace.
As I see this Bill as being one which takes forward the general thrust of the reforms to the justice system that we all wish to see, I commend it to your Lordships. I recognise that there are matters of detail which require improvement. However, I am sure that great care will be taken in Committee to examine each of the provisions contained in the Bill. But, in general, I hope that the Bill is one which will commend itself to your Lordships.
In regard to the detail of the Bill, I cannot resist pointing out to noble Lords that I am conscious of my historic relationship with the solicitors' side of the 1156 profession as Master of the Rolls. I am therefore rather surprised to see that Schedule 6 provides that, if after consulting the designated judges—of whom I am one—the Lord Chancellor decides to disregard their advice, I am deemed to consent to what he is proposing. I do not feel that that is perhaps the appropriate treatment of my role in relation to the solicitor side of the profession.
§ 6.30 p.m.
§ Baroness Kennedy of The Shaws
My Lords, my noble and learned friend the Lord Chancellor is right when he says that access to justice is one of the measures of a true democracy. A high quality legal service, available to all, is essential. I therefore support the principle behind the Bill of creating a more coherent system for the funding and delivery of legal services. The creation of the legal aid system was one of the great achievements of the post-war Labour Government, but the present legal aid system has not always been able to deliver a service of consistently high quality, nor has it been able to control escalating costs. The time is right to reconsider legal provision and its funding. Like others, I am very happy to see that the noble and learned Lord the Lord Chancellor has listened to those of us who were concerned that conditional fees may not work out as planned, particularly with regard to the poorest plaintiffs, and that he intends taking reserve powers to create a contingency legal aid fund to make up for any failures in the new system. I am also pleased to see that he has recognised the need to protect public interest work. I am also delighted to see the steps that he has taken to provide greater coherence in the services to the community through the community legal service.
However, I, too, have some concerns and queries about this Bill. First, I am concerned that, in seeking to drive down costs, quality will be sacrificed. There is clearly a potential conflict between the objectives of cost control and quality. I regret that the emphasis in the Bill appears to be on the first. For example, in paragraph 3.18 of the White Paper, which sets out the Government's objectives in contracting, three of the bullet points relate to cost control and only one to quality control. In paragraph 3.21, the incentives in the new scheme are said to address speed of action and the rejection of unmeritorious claims. No mention is made of quality.
There can be no objection to the Government seeking to use public money responsibly and effectively, nor to the argument that the present funding system provides no proper mechanism for the control and assessment of costs before the event. However, this needs to be balanced with the requirement to provide services of proper quality—and any quality service costs money. I am concerned that the current focus is on assessment of office and management systems within firms of solicitors seeking franchises.
Where are the questions which address themselves as to whether or not those firms of solicitors will fight hard for their clients? Where are the questions which address whether no stone will be left unturned in preparing the case. Where are the questions about the standards of legal research which will be undertaken in preparing cases, the quality of advocacy, or the point at which the 1157 solicitors will seek the assistance of specialist advocates rather than keeping a case in-house to save money? Where is the question addressing whether or not the solicitors will seek out the right expert for a case? All of these matters concern me in relation to the issue of quality. I would therefore urge that the legal services commission should include a requirement to ensure that the legal services it funds are of adequate quality and sufficient to meet the importance and complexity of cases.
I also have queries about some aspects of the block contracting system of the criminal defence service. How do you ensure that specialists who are suited to the case are brought in? Will the block contracting system relate only to run-of-the-mill cases? What happens with the unusual or specialist case? To what extent are we sacrificing choice to efficiency in terms of cost?
I remember, in my early days at the Bar, my clerk referring to the importance of horses for courses. I discovered that most clerks in chambers are betting men. When they talk about horses for courses, they are really talking about the importance of getting the right barrister for a particular case. Will there be space in the block contracting system for the securing of the right barrister for a particular case? Will it be possible for any solicitor up and down the country to pursue the well-known advocate who is a leader in the field of prisoner rights if he is not on the solicitor's normal block contract list of counsel? If the solicitor has a case involving mental health, will he be able to secure the specialist advocate who deals with mental health cases and has taken many of them to the Court of Appeal and the House of Lords? Will the solicitor be able to secure the counsel who have been at the heart of so many of the miscarriage of justice trials? Will the solicitor be able to seek out barristers who have specialist knowledge and understanding of, for example, domestic violence? Or will the contract system confine the solicitor to those included on the special block contract list?
The danger this poses to the service and to the client is considerable. I say to my noble friend Lady Crawley that we are left with exactly what we saw in the Paul Newman film—a chance at justice but perhaps very little more.
I share the concerns of the noble Lord, Lord Hutchinson, about my greatest horror of all. The idea of introducing a criminal public defender system into Britain fills me with great alarm. I have direct experience of the public defender system in the United States. I have seen it in action. I have a friend working within that system even now—a young black lawyer, working in Washington, who is handling cases which no lawyer of his age and experience should handle. I have seen the pressure that that puts him under. A talented, brilliant young lawyer, who was the clerk to one of the justices of the Supreme Court of the United States, he still speaks of his desire to have a legal aid system like ours operating there.
We hear that there is a pilot scheme operating in Scotland to consider whether a public defender system might be effective and cost efficient. I can say now that the noble and learned Lord the Lord Chancellor will 1158 discover that it is very cost efficient. But surely in justice we are concerned with more than that? The horrifying levels of plea bargaining in the United States will almost certainly visit themselves upon our courts if such a system is introduced.
What happens with such a system? The young and the older but less able work within it; the turnover is incredibly high and lawyers quickly become beaten down. Collusion becomes part of the system—collusion between lawyers on both sides, prosecution and defence, with the court in order to get through the bulk of cases as quickly as possible.
Is that really the route that we want to go down? I know that our Lord Chancellor is committed to human rights and I hope that that will be his legacy to our legal system. But might he also be creating another legacy—the introduction of a system which can only disadvantage the many, particularly the poor?
Finally, I suggest that the noble and learned Lord the Lord Chancellor is addressing only half of tile problem. The general public pay for legal costs through much more than legal aid. The government departments and public bodies have to pay for lawyers out of taxpayers' money. To whom do they pay that money? To the private sector lawyer who is charging the huge fees to which the noble and learned Lord the Lord Chancellor referred, the ones that he said were based on what the market could bear. Why should the taxpayer be paying those sums of money? Is not the taxpayer, or the general public ultimately, out of pocket because of the fees that are being paid to the commercial sector? Where is the urgency on the part of the Lord Chancellor to curb and regulate the commercial sector, from which he himself has come? Is not the greed of lawyers in the privately funded parts of the profession part of the problem? Insurance companies, banks, National Health Service trusts and others all get their money to pay legal costs ultimately from the public, through enhanced premiums and charges which we all bear. So when my noble friends speak to the importance of creating community legal services and to the importance of improving services to the public, let us not be unprepared to say that commercial lawyers are the people who have driven up fees across the board and have had a shameful role in all of this.
There are many good things in the Bill. I congratulate my noble and learned friend the Lord Chancellor on introducing them in this piece of legislation. I congratulated him at the beginning of my speech on his willingness to listen. I hope that will continue in the processes which follow from today.
§ 6.41 p.m.
§ Lord Mayhew of Twysden
My Lords, we can surely all agree that the Bill administers, as my noble and learned friend Lord Mackay of Clashfern said, a tremendous shake-up—perhaps the biggest shake-up—in the provision of legal services since the war or at least since 1949. Equally, I am sure we can agree that at this late hour the very scope of the Bill precludes a speech that is more than a very selective one. Applying that 1159 principle, I shall forgo following, as I should like to do, the speech to which we have just listened, save to say that I agree with much of what the noble Baroness said.
While there is much that is good in the Bill—most noble Lords have agreed on that—and no doubt there is more that can be made better, I propose to focus on provisions in Schedule 5 to and Part III of the Bill that are so dangerous that they could hardly be made worse. But, at the end, if I do not permit myself to tilt at the windmill of the speech of the noble Lord, Lord Hutchinson, it will only be for considerations of time. I hope to give notice that I intend to do so a little later, meanwhile, as it were, marking down the windmill upon my register of targets.
I declare an interest. Although I am no longer in practice, I remain a member of the Bar of England and Wales, which I had the honour to lead for five years. During some of that time—it seemed to be rather a long time—the Government wrestled with the difficult issues of competition and of fostering competition on the one hand and the need to maintain the independence of the Bar in the context of rights of audience on the other. It is no secret—it was not a secret at the time—that within the government there were conflicting views as to how these interests should be balanced and as to where the public interest lay. We were a strongly reforming government and we believed in maximum competition. We were also a strongly constitutional government, upholding the separation of powers. My noble and learned friend Lord Mackay of Clashfern valiantly strove to bring forward a reconciling balance and in doing so he attracted a good deal of flak from opposing quarters. But that is the lot of those who seek, as they have to do, to reconcile conflicting interests. The result was contained in Sections 29 and 30 of and Schedule 4 to the Act of 1990.
None of us would claim that that outcome was perfect. It certainly is an unwieldy outcome. It can be speeded up, as I think all noble Lords have agreed and as others outside have agreed as well. But it is not a process which by its nature ought to lend itself to being railroaded, and it did preserve free from the exclusive control of the executive what are after all the core functions of any profession—certainly the core functions of the profession of the Bar; namely, the formulation of its rules of conduct and the formulation of its rules governing qualification for membership.
The reason that we preserved those core functions from the exclusive control of the Executive was simple. It was well understood in every quarter of the government that in a free society, just as the judiciary has to be independent, the Bar has to be independent. The Executive must be denied control of the core functions of the Bar, which services with advocacy the courts that the judiciary operates.
I do not recall hearing the contrary being argued even by the driest and highest of the high priests in the Treasury. Certainly their concern was to get more competition; certainly their concern was to get lower costs. Those are patently concerns of the present Government. But they knew better than to seek exclusive control over the matters which now are affected by the schedule to which I have referred. They knew that that 1160 would be incompatible with the need for the public to have access to fearless advocacy and to fearless representation on the part of the Bar.
In those days, the recent speech by Mr. Sydney Kentridge QC, reference to which many noble Lords will have seen in some briefing, had not been delivered. It is worth citing a few lines from it. He said:If I may be permitted an anecdotal recollection, during the years of apartheid in South Africa, there were frequent threats from the Government to place the Bar under the control of a central council with Government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including the many members who normally supported the Government in its policies and legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant the end of the independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar".If those words had been, as it were, in the public domain at that time, the previous government would certainly have endorsed them. But we did not need them. I am afraid it is plain that the present Government do need them, because tucked away in Schedule 5 to the Bill are provisions which allow the Lord Chancellor alone to decide who can appear in court, who can conduct litigation, what rules of conduct there shall be, what qualifications lawyers can have, and more besides of a fundamentally important nature.
The noble and learned Lord the Lord Chancellor described these provisions as streamlining. I hope I shall not cause offence if I say that I thought his reference to them in the course of his speech was fairly streamlined itself. The Lord Chancellor's purpose in bringing forward these proposals is stated with almost Orwellian clarity in the admirable Explanatory Notes with which we have been provided. Paragraph 146 states:This power will enable the Lord Chancellor to change on his own initiative unreasonable or restricted rules on the part of a professional body".What is the purpose of bringing in this extraordinary interference with the ability of a profession to govern itself? What are the shortcomings that lead him to guard against unreasonable or restrictive rules? Who is to test the Lord Chancellor's notion of what is reasonable? It is no good saying the judges will do so because the judges have that jurisdiction at the moment but it is to be swept aside by Part III of the Bill. The answer is that no one will be available to test that. Only Parliament will give consideration to an affirmative resolution, by which alone the Lord Chancellor will have to seek, as it were, validation. As we all know, with a large majority in another place, affirmative resolutions take up—no doubt, most inconveniently—as much as one and a half hours of Parliament's time. When they come to this place, what can we do? We can bring to bear such expertise as we have by virtue of the convention already alluded to by the noble Lord, Lord Goodhart. However, we cannot overturn such a measure. This is what we are confronted with. It is introduced in the most streamlined way that one can imagine. Clause 35 simply states,Schedule 5 (which substitutes new provisions for sections 29 and 30 of, and Schedule 4 to, the Courts and Legal Services Act 1990) has effect".When one reads Schedule 5, one's hair stands on end!
1161 There is much in this Bill which is admirable. However, I cannot forgo one little tilt at some of the observations made by the noble Lord, Lord Hutchinson of Lullington. I should, I suppose, declare an interest in that it fell to me to set up the Crown Prosecution Service all those years ago. It is worth reminding your Lordships why, right across the political spectrum, there was pressure for an independent prosecution service. It followed from the report of the Royal Commission headed by Sir Cyril Philips, which drew attention to scandal after scandal that obtained when the chief constable in every force took prosecuting decisions right the way through to the conduct of trials. That is why there was said to be a need for an independent prosecution service.
I believe that we need to be fair. Of course we have listened to a brilliant forensic speech, as those who know the noble Lord, Lord Hutchinson of Lullington, would have expected. However, I am not one of the host who approach these matters without ever having undertaken this kind of work. I, too, have put up my flag and sought dock briefs. I knew perfectly well what PPDs stood for. I was jolly grateful for dock briefs and PPDs in my time. I also knew—if we are going to be fair about this—that there were members of chambers who never did anything except prosecute. As regards some of those rare but nonetheless important instances, one would look at them a long time before one was put in mind of the concept of total independence.
As I say, there is much in this Bill that is admirable. But finally I must say—before I turn my donkey about—that I believed that what the noble Lord said about my successor as attorney-general at the time of Matrix Churchill demonstrated less than his usual fairness. I hope to revert to that if it is necessary to do so at a later stage in the Bill. Although much is good in the Bill, I am afraid that there is a good deal that is dangerous. However, there is nothing more dangerous and more important than Schedule 5, which is profoundly unconstitutional and wrong. I hope that by the time the Bill leaves the House it will have been fundamentally amended.
§ 6.54 p.m.
§ Baroness Goudie
My Lords, I wish to concentrate on three main aspects of the Bill: the responsibility of the new legal services commission to take the lead in establishing a community legal service in co-operation with local, regional and national plans to match the delivery of legal services to identified needs and priorities; the funding of services; and the reform of the system of appeals in civil cases. As the White Paper, Modernising Justice, states, a co-ordinated system for planning and funding legal services must take account of the views of local people. It will be successful only if local authorities, the bodies mainly responsible for meeting the needs of local communities, are closely involved.
We should not seek to re-invent the wheel. We must build on existing mechanisms. These include local law centres, which have existed for almost 30 years. These centres came about following the pamphlet of the Society of Labour Lawyers, Justice for All, in 1968, the 1162 principal author of which was the great lawyer, Morris Finer. Some 30 years on, Justice for All must still be our aim now.
Law centres make legal services available to individuals who would not otherwise have access to them, and they have a broad interest in their local communities. Often they are located exactly where they are needed, where traditional practitioners are most thin on the ground. But there are far too few law centres, and those that exist sometimes have a precarious existence. I therefore welcome the proposal in the Bill to establish a legal services commission and for functions to be conferred upon it relating to the community legal service. The commission must establish, maintain and develop such a service with a view to making a range of legal services available to members of the public.
The commission must inform itself not only about the unmet demand for, and existing provision of, such services but also about the quality of the services provided. It must co-operate with local authorities and other bodies and persons to plan what can be done towards meeting the demand. It must facilitate the planning by others of what can be done by them to meet the demand. More is required, but quality is also of vital importance. The Bill therefore rightly recognises that the commission will have a role in setting and monitoring standards.
I turn to funding. There is general recognition that changes are needed in the way the system of civil legal aid operates. There are at present abuses and anomalies. Disputes arising in the course of business cannot be regarded as a priority. Legal aid is not available for companies. It is right that it should not be. But a trader who is not incorporated can currently get legal aid to pursue a business dispute. This is despite the fact that businessmen have the option of insuring against the risk of having to bring or defend legal proceedings. The taxpayer should not meet the legal costs of businessmen who fail properly to insure themselves.
There are other areas which do not have sufficient priority to justify public funding. These include boundary disputes between property owners, and matters concerned with the law relating to trusts and partnerships. Consideration also should be given to whether there are better ways than litigation of resolving a particular dispute and, if not, whether the dispute could be funded by ways other than legal aid.
The existing so-called merits test does not ensure that resources go to the cases with the highest priority. A flexible funding assessment is required. Public money should be directed to the most deserving cases. I am glad that priority cases include those involving social welfare and the care of children. Targeting resources on priority areas is essential.
I move from Part I to Part IV of the Bill. I welcome the reform of the workings of the appeals system. As the White Paper states, an effective system of appeals is an essential part of a well functioning system of civil justice. At the same time appeals produce uncertainty about how long the litigation process will take, and what it is likely to cost.
1163 No doubt there are other reforms that can and should be made in modernising justice in the Court of Appeal that do not require legislation. Present practices grew up when the proceedings were entirely oral. Now appeal hearings are preceded by an exchange of written arguments. It makes one wonder whether there should now be only one speech on either side. The elimination of a right of reply for an appellant should shorten proceedings. It might also be fairer. At the moment one side has all the advantages of the first word and the last word and twice as many speeches as the other side. We must strike the right balance between justice and workability. I welcome the proposals in the Bill for less complexity and greater efficiency.
The Bill is based on sound principle. Someone who wishes to appeal should be required to show reasonable grounds. In most circumstances, more than one appeal cannot be justified. Appeals should not be heard at a higher level or by more judges than is appropriate.
I return, by way of conclusion, from the particular to the more general. Before the last general election, the Society of Labour Lawyers published a book: Law Reform for All. The present Prime Minister wrote a foreword. He wrote that legally enforceable rights and duties underpin a democratic society and access to justice is essential in order to make those rights and duties real. He described Labour's goal of improving access to justice as an essential part of its commitment to social justice. He referred to proposals for extending access to justice which included developing a community legal service which would be more responsive to the needs of the consumer rather than the lawyer. We are now seeing those ambitions brought forward as legislation. I am happy that while the Society of Labour Lawyers will be celebrating its founding by Gerald Gardiner and others half a century ago, this Bill makes a reality of access to justice in the ways I have described.
§ 7.1 p.m.
§ Lord Phillips of Sudbury
My Lords, it may well be that I am the only solicitor in the House whose firm has a legal aid franchise at the moment. I am certainly the only lawyer on these Benches who was one of those who laboured to produce the document to which the noble Baroness, Lady Goudie, referred: Justice for All. It is true that it has proved an inspiration for the improvement in legal services with which we are bound up tonight.
I shall concentrate my remarks around the impact of the Bill on legal aid via the services of solicitors. It is sometimes forgotten that of the 3.5 million acts of assistance under legal aid last year, well over 95 per cent., I suspect, were delivered by solicitors in private practice.
It has already been said, and is only too true, that the Bill is skeletal and that the devil will be in the detail. But there has been a plethora of documents emanating from the Legal Aid Board. The White Paper itself makes plain what is currently proposed vis-à-vis a radical reduction in the number of solicitors who will be able in the future to provide legal aid.
1164 Perhaps I may clear up one point raised by the noble Baroness, Lady Kennedy of The Shaws, in her admirable speech. The White Paper makes clear that in fixing prices for solicitors who will be asked to tender for these new exclusive contracts it will include, "any advocates' fees". So in some way the firm that puts in a tender for legal services in a particular branch of whatever it is in a geographical area will have to sort out just what it will have to say on that score.
However, the new regime we contemplate hinges around a classic business school model. If you, a solicitor, give me, the legal services commission, a fixed price quote for the provision of legal services; and if you then win the tender, I, the legal services commission, as it will then be, will give you, the solicitor, a geographical monopoly of the relevant legal aid services for up to three years in that area.
I must say I thought that the sale of monopolies had gone out before the Civil War, but it is back here with a vengeance. This "come-on"—the exclusive contract, as it is not called in the White Paper; and I wonder why, because at no point does the document face up to the fact that these are exclusive contracts, given that the Legal Aid Board's last consultation document was called Exclusive Contracting—is bargaining on the fact that, with an exclusive contract "come-on", the commission will get solicitors (some of them quite desperate to hang on to the legal aid work they are doing) to tender at prices which are "what the market will bear", to use the phrase given by the noble and learned Lord the Lord Chancellor. It will be a rather rigged market. If you are one of the 11,000 solicitors firms doing legal aid and if it is an important part of your practice, to be suddenly told that you will not be able to do any more at all unless you win one of the exclusive contracts is a strong concentrator of the mind on the price at which you will wish to bid in order to get the franchise or the contract.
For those of your Lordships who may not have read the vital White Paper, a flavour of it may be enlightening. On exclusive contracting, it says that,all contracts will include quality standards and the work that providers do will be monitored. Wherever possible, contracts will fix the price which will be paid for work under them, and (where relevant) the number of cases to be done … Fixing price and caseload will enable the Legal Services Commission to control spending, and place positive incentives on providers … Fixed prices create an incentive (for solicitors) to deal with cases more quickly and efficiently. Fixed caseloads will remove the incentive to take every possible case, regardless of merit".So much for our professionalism.
I wondered, as I read this and much more like it, how the good, noble and learned Lord the Lord Chancellor and the equally good, noble and learned Lord, Lord Falconer of Thoroton, would have reacted to the imposition on them in their glory days at the Bar of such a regime. But then, I am not so sure that either was strong in the legal aid field.
Also pause, my Lords, to consider the prospect from the point of view of the 11,000 solicitors' offices currently doing legal aid and how they will fare under the new system. Under the panoply of powers given to the legal services commission under the Bill, its 1165 conscientious bureaucrats (among whom you will not find one who has hands-on experience of doing solicitors' work, by the way) will, the White Paper assures us, require cases to be dealt with more quickly and efficiently than now, at a lower price than currently prevails—that is clearly anticipated—and at improved quality standards.
That would be all very well if legal aid solicitors were living off the fat of the land. The truth, however, as I am sure I do not need to impress upon your Lordships, is that legal aid practitioners are the packhorses of our legal system. I think they are like the good old lay justices, they do all the work and get none of the praise. They work extremely hard doing largely unglamorous work, for which they get little or no public esteem or thanks in return for modest—sometimes very modest—profits of roughly half what comparable non-legal aid firms make.
So let us not confuse them with the thoroughbreds of the commercial firms or the fat cats, as the noble and learned Lord the Lord Chancellor is fond of calling them. As I remarked in what I said in response to the gracious Speech, trainee solicitors in the City are paid more or are charged at more per hour than an experienced solicitor advocate gets currently for standing on his or her hind legs doing demanding magistrates' court defence work.
No, the new world anticipated by the Legal Aid Board in its October report to the noble and learned Lord the Lord Chancellor understands everything about free market forces in theory, but not nearly enough in my view about professional realities. You can lay down all the criteria, the quality standards, the performance-related indicators and franchise specifications in the world. You can monitor, compare and measure until you are blue in the face. But if what you are offering by way of remuneration is poor by market standards (and I mean by comparison with private client work) and if the bureaucratic regime of oversight is laborious and demotivating, you might as well save your breath.
The latest three consultation drafts put out by the Legal Aid Board recently, vis-à-vis exclusive contracting, runs to a total of 350 pages. That comes on top of a whirlwind of earlier consultation papers.
Many, if not most solicitors find all this onerous and demoralising. In some respects they will simply prove unworkable. I give one example.
The qualifying standards and requirements for supervisors, as it is called, under the proposed exclusive contracts demand, among a host of other things, that the solicitor concerned does as least 50 per cent. of his or her work in the area of supervision. That will be a knock-out blow to many smaller firms including those with existing franchises and developed expertise. In response to the gracious Speech, I quoted the chair of the current Legal Aid Practitioners Group who has remarkable expertise in social security law and will have to give up because of that condition.
The effect of that proposal, and of the bureaucratic overburden of the arrangements, involving a veritable paper chase of steps, procedures, records and so on, 1166 is that most small and smaller solicitors' firms are likely, if not certain, to be squeezed out of legal aid altogether. Yet they are often the firms which are keenest to do it and at the keenest prices. One of the inexorable laws of legal practice—as I am sure all noble Lords will know—is that the proportion of fees devoured by overheads rises in step with the growth in the size of the firm. In short, small equals value for money.
Another consequence of the new arrangements will be to cut out literally thousands of firms which now undertake a modicum of legal aid work, typically £10,000 to £20,000 worth a year, often because they think they have a duty to undertake some legal aid even though their real profit is little or none. My office in London is a case in point. We are not a legal aid practice in the square mile, but we have a legal aid franchise for immigration work. It is extremely uncertain whether we shall be able to retain it. We have a highly skilled family law department with scarce expertise in handling cross-frontier children's work. My colleagues are almost certain that we shall have to give up that work much though they want to do it, and much though it feeds rare expertise into the system.
There is another potentially damaging side effect of the exclusive contracting proposals. The proposed concentration of legal aid work in the hands of 3,200 firms, or thereabouts, compared with the current 11,000 offices will involve a considerable increase in the amount of legal aid work to be done by the winners of the new contracts. I imagine that the Legal Aid Board think that that will be a great "come-on". However, many of those firms are not sure that they want a significant amount of extra legal aid work. They will have to take on more staff; and it will disturb the fine balance which exists not uncommonly between two-thirds private client work and one-third legal aid work. That is true of my Sudbury office. Since the private client work is typically charged at up to double the legal aid rate, it is not at all clear that such a firm will want to tilt the practice in the less profitable direction. Research by the Law Society demonstrates that the more legal aid undertaken the less the profit made.
But that is not all. The winners of the new competitive tenders will have to contemplate losing the work when the tenders come up for review. By then legal aid may have become the major part of their work. However, to return to the nub of it all, 11,000 legal aid offices are to be contracted to 3,200 plus 200 charity providers of legal services. (And that is a great advance in the proposals of the Lord Chancellor.)
The claim made for this radical concentration of legal aid work is that there will be economies of scale, more specialism, and quality will be tightly controlled; and that all those factors will improve the status quo. The fingerprints of the Treasury are, I need hardly say, everywhere apparent.
1167 With a glibness which will surely come back to haunt it, the Legal Aid Board (which will transmogrify into the legal services commission) reported to the Lord Chancellor only two months ago that,while the proposals to concentrate the contracts on a smaller group of quality suppliers would reduce the number of individual access points, we do not believe that the proposals would lead to problems of access per se".The gaps—and they will be huge in rural areas—will be plugged by a combination of exclusive contracts for citizens advice bureaux and other charity suppliers of legal services, telephone advice (and much is made of that) and other unspecified "outreach services". As the Labour Party used to understand, the problem of legal access is not just about cash and physical proximity—although for poor people, mothers with children, and the elderly and disabled, that is real enough in an age of disappearing public transport—there is also a psychological deterrent for which telephones are no alternative.
It is not my job, or the wish of those on these Benches, to defend incompetent or lazy lawyers. The public have a right to a good service at a fair rate. As the Lord Chancellor said in the introduction to his White Paper, and as he reinforced today, he is seeking "a fair and efficient system of justice". Fairness, I am sure he will agree, cuts both ways or in the long run does not cut at all.
I have to say, however, that many high street solicitors feel that they are becoming the whipping boys of the legal system. As I have sought to explain, the rewards for legal aid work are in most cases poor, and, in truth, in order to earn a decent living many legal aid practitioners have to handle too many cases—too many if they are to deal with them all with the same degree of efficiency and effectiveness that they and their clients would wish. The reforms brought forward by the noble and learned Lord, Lord Woolf, may well make that dilemma infinitely more acute.
All one can say is that at present the vast majority of clients would far rather have sometimes slow and less than perfect service than none. By contrast, as I have sought to explain, the somewhat triumphalist assumptions behind the White Paper could make access and quality worse unless the proposals are reconsidered and significantly recast.
We shall be encouraging the House to make amendments to Clause 9 of the Bill by adding criteria to the code to be prepared by the legal services commission which will frame the terms of service with solicitors and other service providers.
In conclusion, the very proper preoccupation of the White Paper with quality and quality assurance will not become actuality simply by the imposition of ever increasing numbers of codes, inspections, forms, and so on. Many noble Lords will be aware that the system developed over recent years does nothing to check the quality of the work in the way it is conducted and the outcome. In the consideration that the Lord Chancellor and his colleagues will give to the Bill, I hope that that important point will be remembered. I fear that for many 1168 solicitors the taste for the legal aid scheme has been, and is being, undermined to a point where many of them, conscious though they are of their public duty to take the rough with the smooth, may no longer wish to take part in the new regime.
§ 7.17 p.m.
§ Baroness Scotland of Asthal
My Lords, I, too, welcome and applaud the holistic approach adopted in the Bill and the objectives behind it. Many of those objectives have already been referred to by other noble Lords. Your Lordships will be relieved to know that I do not intend to recite any of them.
I listened with great care to the concerns expressed in many speeches, not least that of the noble and learned Lord the Lord Chief Justice who reflected so many of those of the judiciary. I am sure that the noble and learned Lord the Lord Chancellor will heed them with care. The noble Lord, Lord Clinton-Davis, and the noble Baroness, Lady Kennedy, made powerful speeches in relation to the difficulties facing your Lordships' House in considering the Bill. I find myself echoing many of those concerns. I am confident that the noble and learned Lord the Lord Chancellor will also have listened with care to their comments. I am sure that he will be sensitive to the need for further consultation and mature reflection.
A large number of the matters debated today will be the subject of detailed comment during the Committee stage. That is the most appropriate time to discuss them. As indicated by the noble and learned Lord the Lord Chief Justice, we should ensure that the virtues of the existing system are preserved and valued. One of those virtues is the integrity of the legal profession which is rightly envied elsewhere in the world. It should be jealously protected and valued and not taken for granted. The point has often been emphasised to me by visiting European and American judges who are frankly amazed by how much our judges are able to rely upon the advocates who appear before them and the level of trust that is invested in them. As one American federal judge stressed to me, we undervalue that at our peril and we do not truly understand the pearl we have. The comment was made after she and other Supreme Court judges had had the benefit of watching our procedure in operation. She watched advocates assisting the judge, identifying issues and matters of that kind. We must listen to that echo and not undervalue what we have, which is a very British thing to do. It is rather like the comment of Groucho Marx. No one wants to be the member of a club that is happy to have that individual as a member.
The complexion of our legal profession has changed for the better. Currently, there is a wide cross-section of society reflected within the legal profession that is available to assist all sections of the community. The profession is no longer the preserve of the privileged. I hope that nothing within these proposals will prevent this process from continuing.
It has been accepted by many that the question of costs is crucial. There are many ways in which costs can be contained. I am sure that this is another subject that we shall spend a good deal of time debating in 1169 Committee. I am comforted by what has been said about the preservation of a level playing field and that the same rules will apply to all advocates.
I am not in the least concerned by—indeed I welcome—the increase in competition in the legal profession because that must be advantageous to the litigant who seeks redress. But what does it mean? At the moment the Bar adheres to the taxi rank principle which obliges each member to take whatever brief is offered provided it falls within his or her field of expertise. Is that to be preserved? If not, why not? If it is to be preserved, how? At the moment there is parity of opportunity for the litigant by virtue of the fact that the advocate is obliged to take the first brief in time irrespective of the fee attached to it. Therefore, if a legal aid brief arrives before a privately paid brief it is one's duty to take the first in time. On the basis of that principle, it is to the public advantage that it should be so.
I emphasise that peculiarly in this jurisdiction a legally aided litigant, when faced with the might of a large institutional body or rich opponent, can be equipped with a better lawyer or team of lawyers even though the market indicates that the institution or body is paying considerably more for its representation. In our system David can still overcome Goliath with a little help from his friends.
The words that spring to mind when reviewing the Bill are "caution" and "balance". I hope that when we come to debate the Bill in detail we shall have the courage to jettison that which detracts from the undeniable and honourable aims and objectives of the Bill. I echo the words of many other noble Lords. There is much in the Bill to applaud, to be grateful for and in which to rejoice, but there is also much that should make us extremely cautious. We must guard jealously our justice system because once it has gone it has gone.
§ 7.24 p.m.
§ Lord Hunt of Wirral
My Lords, how right is the noble Baroness to utter the words that she has. I could not agree more. When the noble and learned Lord the Lord Chancellor opened the debate he said that access to justice remained far too limited. In that context we welcome the Second Reading of the Access to Justice Bill. Although I intended to comment only on the civil justice reforms, I am moved by the speeches of the noble Baroness and the noble Lord, Lord Phillips of Sudbury, to say a word about access. I believe that the overwhelming message that has come through in the speeches thus far is that the Bill is the Limiting Access to Justice Bill. That must surely be a worry for us all.
I believe that when the noble Lord made reference to 11,000 firms being in receipt of the legal aid franchise and that the figure would be cut to 3,200 it produced a feeling in us all of serious concern. I agree that it is necessary for quality to be paramount in handling cases on behalf of litigants on whatever side of the argument. But, surely, the recent announcement by the Law Society of the Lexcel Quality Accreditation scheme and all the measures that have been taken is enough to 1170 reassure people. The message that comes out of the speech of the noble Lord, Lord Phillips of Sudbury, is that it is essential that all firms who have reached the franchise standard should be entitled to a contract in the area of law to which their franchise relates. The noble Lord, Lord Clinton-Davis, made the point earlier, and I hope that the noble and learned Lord the Lord Chancellor will reflect upon it.
In many ways the provision of legal aid could become a lottery. The noble Lord, Lord Sawyer, said that one had to stop legal aid deserts. Surely, to restrict it to these firms—I shall turn in a moment to the reforms of the noble and learned Lord, Lord Woolf, which I greatly welcome—and to concentrate on multi-track civil trial centres in certain parts of the country, thus producing a number of firms that group around those courts, means that in large areas of the country it will be impossible to find a lawyer who has an exclusive contract and also the expertise to bring one's case. These are whole areas in which needy people in particular will be unable to find local solicitors who are allowed to take on their cases.
I believe that the reduction in the number of firms franchised to carry out legal aid work will alter the economics of practice. The noble Lord said that there will be fewer larger firms. That does not mean that they will be cost-effective. I fear that there will be a period during which the public in large (perhaps outlying) communities will be unable to locate appropriate solicitors.
I turn to the voluntary sector. As president of my local citizens advice bureau I can hardly wait to hear the evidence of the national association. Having been involved in many voluntary organisations, perhaps I may pause for a moment to reflect that these bodies cannot be expected to fill the gap, particularly when they do not insure against the consequences of negligent advice. Therefore, there is no remedy available to a member of the public who in effect will be without protection. I hope that the House will forgive me for deviating for a moment from the main purpose of my speech, which is to talk about the civil justice reforms, by asking the noble and learned Lord the Lord Chancellor to find some way to ensure that access to justice is improved.
I congratulate the noble and learned Lord the Lord Chancellor on addressing constructively the failure of the system to deal with private disputes between citizens. Those failures have built up over many years. Of course the noble and learned Lord is carrying forward the reforms to civil justice started by my noble and learned friend Lord Mackay of Clashfern.
The problems identified some years ago in the Civil Justice Review were expense, delay and complexity. Those problems are felt as keenly as ever by the users of the system, whether private individuals, companies (particularly small firms), insurers or public bodies. I do hope that the Government will take account of the very constructive response to reform which is now coming from all branches of the legal profession. I hope that Ministers will accept that the profession has fully taken on board the need for change and has contributed to the 1171 debate. The few objections which there have been to the planned changes are carefully thought out and merit consideration.
As the noble and learned Lord, Lord Woolf, will know, I applaud the contribution he has made, without which we would not have proceeded at the pace we have. He will have heard me in the debate on the new civil procedure rules last summer when I explained the concern expressed by many practising lawyers about the timing of the implementation of the new rules and the resource which is available to support the new reforms both generally and with specific reference to information technology. The rules have now been signed but there are those who believe that they still contain some detailed provisions which will cause difficulties in practice. Moreover, as the focus has now moved on to practice directions, which support and clarify the rules, it is a matter of some concern that only towards the very end of this process some of the key drafts are now for the first time entering the public domain.
Nevertheless, we are all gearing ourselves up to make the new rules a success. The Law Society, with the support of many involved in developing the new system, has just completed a round of seminars aimed at raising awareness. Indeed, as those practising solicitors participating in this debate know, all of us in our own firms are doing detailed work to ensure that 26th April 1999 is going to be a day when the reforms will from the outset be a considerable success. The ripples are spreading across the legal pond. Solicitors are doing their best to make sure that their clients, from individuals to major corporations, and also public bodies, as mass users of the civil justice system, are aware of the changes and the implications for themselves and their businesses and organisations.
It has become apparent that one major problem for insurers will be educating individual policyholders who, for example, may have a road traffic accident about how the new procedures will affect them. I urge Ministers to consider whether or not there is need for a more extensive advertising campaign as a matter of public information. I say those magic words knowing full well, as do those who were previously Ministers, that there is always money available somewhere for a public information campaign. I am sure there is one called for here.
I applaud the concept of proportionality which Part 1 of the new rules introduces to the civil justice system, but I do not think it should be assumed that the public at large will do so without some information to enable them to understand the concept, in particular when they discover what it is going to mean in practice. I do hope that there will be no delay in ensuring that the necessary support systems are in place.
I hope that Ministers will read tomorrow's The Lawyer. I mention that periodical just as the noble and learned Lord the Lord Chancellor referred to it in the last debate we had on this subject. A front page article under the headline, "Part-time judges face delay over Woolf training", states: 1172The 1,250 part-time county court judges in England and Wales, who sit for at least 20 days per year, will not begin training in the new rules until 19 April.I hope that that is not true. I look forward to the Minister confirming in his response that it is incorrect.
On the question of funding, I want to say a word about conditional fees. The replacement of the old "merits" test for legal aid is to be welcomed. Solicitors in practice know that this test very rarely results in the refusal or withdrawal of legal aid. The White Paper identifies three key questions which will feature in the new funding assessment. I believe the criterion concerning the availability of a conditional fee agreement is not strong enough. Surely, once conditional fees are established, as we all hope they soon will be, it should be made clear that the availability of that funding mechanism in principle should be an absolute bar to state funding. I cannot see why the state should ever accept a lawyer's opinion that it should fund litigation which that lawyer is not prepared to risk himself.
Secondly, it must not be thought that conditional fee agreements are that ideal, long-thought-impossible, free lunch, because they are not. The rules which have protected the position until now existed to protect the public from the dangers of lawyers sharing too closely in the financial outcome of their clients' cases, which reminds us that there is a wider dimension here. The primary duty to the court is now going to be put on a statutory basis and it is unlikely that the vast majority of legal professionals will find that that enhances in any way the moral imperative under which they have always operated. For the few who are tempted, it remains to be seen whether the new statutory duty outweighs the vastly increased financial pressures. I share a number of noble Lords' concerns about that.
I have spoken already about the hidden cost in the new funding package which relates to the recovery of the insurance premium and the success fee. That represents completely new money in the system and an additional cost which will have to be borne by the insurance industry and the public purse where the defendant is a public body. I am not sanguine about the view expressed that the insurance industry will be keen to develop cheaper legal expenses insurance in the face of this additional cost. As the industry consolidates, legal expenses insurers and liability insurers increasingly are the same people. I still oppose what I believe to be an unfair provision but if the Government win the day I hope special emphasis will be given to monitoring and controlling the level of success fees and insurance premiums at the end of each case. Any laxity in this area will see the level of legal costs increase sharply to the detriment of what must be one of the fundamental principles behind the entire process: reducing the cost of obtaining justice.
I hope these are matters that the noble and learned Lord the Lord Chancellor will bear in mind. In addition to the 75,000 to 80,000 lawyers mentioned in the White Paper there are many tens of thousands more employed in the legal services industry. A significant part of the £8 billion worth of annual fees of legal firms are represented in services supplied to clients overseas, 1173 contributing to the economic health of the country. I hope he will bear all this in mind in the search for some way of managing not only the biggest upheaval in legal aid we have ever seen but also the largest ever reform of the civil justice system. We will have to tread more cautiously to ensure that we do not end up by limiting access to justice.
§ 7.38 p.m.
§ Baroness Thornton
My Lords, in rising to speak in this debate I can say two things for sure. The first is that I will be brief because, due to seasonal croakiness, my voice will not hold out for very long and, after four-and-a-half hours, some may say that is just as well. The second is that I shall not at this moment be straying into the territory of audiences, fees and related matters already occupied so eloquently by so many of the legal profession here today.
Many lawyers have spoken today and perhaps even more, I suspect, are holding their fire for yet another occasion. Quite rightly, there is enormous and sometimes passionate interest which colleagues in the legal professions have and will show in the Bill. It is important that those of us who are consumers of the law and who have experience of other kinds of advice-giving should also be heard in this discussion.
I have worked as a probation officer. I have worked in a girls' remand home. I helped to run the citizens advice bureaux and law centres of north London for a time. Indeed, I was a member of the management committee of the greater London CAB service under the chairmanship of the then Lord Ponsonby.
I wish to say a few words about the proposals in the Modernising Justice White Paper and the Access to Justice Bill before us today concerning the community legal service. It is not a new aspiration to attempt to provide a comprehensive front-line legal service which guarantees consistent quality. Indeed, it has been an aspiration of many of us who have been involved with citizens advice bureaux and law centres for many years. What is different and why it is such an important matter here today is that the Government have placed access to legal services at the heart of their reforming legislation and have made a commitment to an holistic approach which involves all providers in that sector.
Surely the key to success in the new proposals rests in their comprehensive nature, people's access and a guarantee of the quality of legal information. As my noble and learned friend the Lord Chancellor said, at present the provision of legal advice services is patchy. Many communities, often those which need advice most, do not have access. I am thinking particularly about the homeless and vulnerable young people who have no access because they have nowhere to live. The lack of standard measures of quality of advice sometimes leads to bad advice and distressing outcomes.
I am aware that there are those in the legal profession who are concerned—and some have expressed those concerns today—about the provision of front-line advice being provided by non-legal experts. It is important to remember that duff advice, if I may use that expression, can come from anywhere. Recently, an acquaintance of 1174 mine was given completely the wrong advice by her solicitor about the very important issue of her landlord. Even I knew that the advice was wrong and, in fact, the local CAB provided correct and helpful information. I am aware that one example does not make a general case but in answer to my noble friend Lord Clinton-Davis, I should say that it shows that bad advice can be given from different quarters. That is why the Bill's commitment to the quality of information and the development of kitemarks is to be wholly welcomed.
I am pleased to learn also that the development of core quality criteria will involve all the parties—local government, the voluntary sector, law centres as well as government departments and the Legal Aid Board. Many of my friends are lawyers and I have the highest regard for them. Indeed, some are very close to me! But as a profession, it does not always place the value on the views of non-lawyers that it places on those of itself. I make a plea to my colleagues in the legal profession: when you have discussions with other agencies—CAB services, voluntary agencies and so on—to develop a uniform set of standards, I recommend that you use the strength and diversity of that sector to help to inform the provision which is ultimately developed. It will be greatly strengthened by that. There are people who have experience of delivering services in the most deprived and difficult communities and to groups and societies shunned by many. Above all, they have experience of how and when to deliver services. I believe that they will provide an extremely valuable insight into the process. I hope that that insight will be used.
§ 7.44 p.m.
My Lords, no one questions the importance of making justice more efficient; indeed, as efficient as it possibly can be. Of course, efficiency comprises a large number of aspects—speed, low cost and, perhaps above all, fairness. But I suggest with deference and hesitation that some of the proposals for efficiency in this Bill are to be bought at too high a price.
The prime examples are those which have already been mentioned by my noble and learned friend Lord Mayhew and the noble Lord, Lord Hutchinson of Lullington. They are mostly contained in Clauses 30 to 35 and, in particular, in Schedule 5. The three most important are that standards of education and training for advocates, their codes of conduct and their rights of audience in the High Court, should be decided by the Lord Chancellor untrammelled, as it seems, by any other restraints save for the necessity of consulting but not being bound by the views of the designated judges.
Those are grave inroads into the authority and the long-standing independence of the judiciary and the Bar. They are a serious erosion in the constitutional principle of the separation of powers, at a time when that principle is of particular importance.
The Government have a large overwhelming majority. The Opposition are correspondingly weak and very largely ineffective. That means that there is almost a free power in the hands of the Executive and it is the Executive role which the Lord Chancellor is acting or 1175 going to act. In other words, the scene is well set for what the noble and learned Lord, Lord Hailsham, on an earlier occasion described as a parliamentary dictatorship.
It is that point at which the separation of powers becomes so important; that is, the separation between the legislature, the Executive and the judiciary. The only check on the unrestrained power of the Executive is the law administered by the judges, assisted by an independent Bar. They can try to ensure, by judicial review, that the Executive does not exceed its legitimate power. If the judicial power is eroded or, even worse, is manipulated by the Executive, then the ordinary citizen is in trouble. It is a sad fact that judicial protection is a benefit which is not missed until it is lost.
Is it too much to ask that the noble and learned Lord the Lord Chancellor will not forget that he has a judicial as well as an executive obligation? If he forgets that, the consequences may be more drastic than he realises.
I wish only to add this. It was surprising, to say the least, and disappointing for me to hear the noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Woolf, the Master of the Rolls, depart from the views which have been expressed by the judges in their care. I suggest respectfully that the views of those judges in the care of the Master of the Rolls and the Lord Chief Justice are to be preferred.
§ 7.50 p.m.
§ Lord Borrie
My Lords, my noble friend Lady Goudie referred to the former Labour Lord Chancellor, Lord Gardiner. I recall that about 30 years ago Lord Gardiner was receiving the first fruits of the work of the Law Commission whose creation is generally regarded as his most lasting achievement. The Law Commission had a considerable programme of law reform, statutory consolidation and the removal of obsolescent law from the statute book. I am pleased that a couple of weeks ago my noble and learned friend the Lord Chancellor was able to reassure the noble and learned Lord, Lord Wilberforce, that he has every intention of bringing forward a number of Law Commission reports for implementation. The White Paper before us today states clearly that up-to-date law allows legal disputes to be resolved more effectively.
However, it goes on to recognise, as does the whole of today's debate—that improving people's legal rights, no matter how important, is a vain endeavour unless they can enforce those rights effectively with reasonable dispatch and without bankrupting themselves.
The Bill is broad, but I shall confine myself to civil justice. Surely we all agree that there needs to be affordable access to dispute settlement machinery for people from all walks of life. Not many of your Lordships have referred to the matter, but I believe that government policy rightly promotes many models of dispute resolution which in recent years have grown up as alternatives to the traditional court system. I refer to mediation, arbitration and ombudsmen. I am pleased that the Government's draft financial services and markets Bill puts much stress on a comprehensive unified ombudsman scheme outwith the court system.
1176 One of the great benefits of the Law Commission is that it is a standing body keeping the law under continuous review. Until now we have not had such a body in continuous, permanent existence dealing with the administration of justice as distinct from the substantive law. Instead, during the past 40 or 50 years we have had frequent ad hoc inquiries. Most recent and most importantly for today's discussion is the inquiry by the noble and learned Lord, Lord Woolf, into the civil justice system. I regard it as excellent that not only are the Woolf reforms being implemented, but that the standing body (the civil justice council) to monitor the changes is being created with the noble and learned Lord as its first chairman.
The first element of access to justice, which the Bill rightly emphasises, is the ready availability of information and advice. I need not develop that argument because several of my noble friends have spoken of the various ways in which the Bill's provisions seek to co-ordinate the existing patchwork of advisory services to develop a core criteria of quality and to create a community legal service. I say to the noble and learned Lord, Lord Mackay of Clashfern, that those services are at the local level but mix and bring together the skills of lawyers and the interests and willingness of enthusiastic volunteers.
I welcome the extension of the availability of conditional fee agreements in Part III. I, too, accept that it is not a panacea, but we all know, that except for the rich and the legally-aided poor, pursuing a civil case today is too often an unpredictable and certainly an unquantifiable gamble. The proposal to enable a court to include any success fee, which is payable under a conditional fee arrangement, and any insurance premium paid among the costs that it orders a losing party to pay to the winner is also welcome. I was delighted that the noble and learned Lord the Master of the Rolls also welcomed those provisions.
Many questions need to be answered and pilot schemes can assist in that regard. I refer to the willingness of solicitors to undertake conditional fee work and the availability of insurance, as pointed out by my noble friend Lord Clinton-Davis. But surely my noble and learned friend the Lord Chancellor was right not only today but in the debate on the gracious Speech, in earlier speeches and in the consultation process to explain his views on these matters.
I believe that cultures can be changed. I would not have predicted that, for example, Mr. Peter Carter-Ruck, would so soon offer his services in defamation cases on a conditional fee basis. On the subject of conditional fees, and on the erosion of lawyers' monopolies as mentioned by the noble Lord, Lord Hutchinson, I praise the noble and learned Lord, Lord Mackay of Clashfern. When he was Lord Chancellor in the late 1980s he came in for a great deal of unfair criticism over the Green Papers. I recall, as did the noble and learned Lord the Lord Chancellor with appropriate quotations, the somewhat immoderate language, used even by noble Lords in this House, condemning the proposals of the then Lord Chancellor for ending some of the restricted practices engaged in by the legal profession.
1177 Some restrictive practices are justified in the interests of maintaining the quality of service to clients and ensuring proper protection to clients against rogues and incompetents. However, so often the restrictions adopted by the profession—not only the legal profession, but that is the one we are discussing today—have gone beyond that. Self-regulation has often operated more in the interests of members of the profession than in the interests of the public. Your Lordships may know that in the 18th century the lawyers of New York had a monopoly on court practice. They passed a resolution to admit no more apprentices into training for the next 14 years—except for their sons! No doubt the citizens of New York were solemnly reassured that that measure was essential in the public interest.
That was a long time ago and it was not in this country. But not so long ago in this country only a solicitor could engage in conveyancing; all publicity as to the services which a lawyer could give to the public were banned; and only a barrister could appear in the higher courts. Changes were made in particular by the Courts and Legal Services Act 1990. But they were hedged around with conditions and exceptions and, not surprisingly, the impact of the changes was small. Fewer than 1 per cent. of solicitors currently have rights of audience in the higher courts.
The most extreme condition has been the veto on the change which can be exercised by the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor or the President of the Family Division, or any one of them. That most extreme quadruple veto is altered by the Bill to a consultative role. It was most interesting to us all to hear today the views of the noble and learned Lords the Lord Chief Justice and the Master of the Rolls of the present day. As a result, I have a feeling that I should prefer that the so-called designated judges had a role rather than the other judges. Perhaps that is simply because of the views expressed by the senior judges who have spoken today. Of course, I am glad that the consultative role of the Director-General of the Office of Fair Trading is retained. As a former holder of that office, perhaps I am expected to say that, but his office is experienced in weighing up, in many areas, the often conflicting benefits of competition and other public interest claims. Whatever the case, I certainly hope that in the future clients will have a wider choice of quality people providing legal services, as long as they satisfy basic training requirements.
I do not believe that competition from others will destroy the role of the self-employed barrister. They may be fewer in number, but the Bar will continue to be valued by solicitors and their clients as an independent source of advice, advocacy and specialist knowledge, with the benefit of low overheads available to all solicitors, large and small, throughout the country. It is unlikely that the higher courts will be flooded with solicitor-advocates, if only because most solicitors practise in such a way that court appearances cannot be fitted in conveniently as an everyday function.
It has been pointed out that the period of existence of the National Health Service and legal aid are about the same, as it is 50 years since the Legal Aid and Advice 1178 Act 1949 was passed. Last week, in a debate on the National Health Service, the point was made that whatever may have been the case in the past the patient, not the practitioner, is at the centre of our concerns. This Bill helps to put the client at the centre of our legal and judicial process.
§ 8.1 p.m.
§ Lord Gisborough
My Lords, in 1690, a great political philosopher, John Locke, said:It may be too great a temptation to humane frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them. whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage".There is no liberty if the judiciary power be not separated from the legislative and executive. Joined-up government, avoiding a fragmented and piecemeal approach, is one thing. Co-ordinated and planned strategies, based more on performance indicators than justice, are quite another. The ability to dispense justice fairly and efficiently will be called into question if the objectives of the police and Crown Prosecution Service are too closely aligned with disposal rates set by the Lord Chancellor's Department in relation to the courts. Government policies, which are implemented in a coherent and consistent way across all agencies, have the potential to call in question the impartiality and independence of those involved in judicial decision-making which, in turn, could very well lose public confidence.
That is evidenced no more so than in the provisions which relate to magistrates' courts. The Government's stated intention to allow for the first time an administrative body answerable directly to the executive arm of the Lord Chancellor, the magistrates' courts committee, to determine judicial issues such as the allocation of cases (recognised by all judges as a judicial matter) and the deployment of justices is an example.
Clause 55 will allow the Lord Chancellor, by statutory instrument, to extend the remit of a court's committee into the judicial arena, a function which is not currently enjoyed. Increased default powers of the Lord Chancellor, together with the ability to appoint an unlimited number of non-magistrate members, many of whom could be local politicians, would call into question judicial independence and politicise, either nationally or locally, the operation of magistrates' courts.
Alterations to petty sessions' areas must, in my view, be a matter of great concern. The Lord Chancellor appears to be intent on changing the concept of local people dealing with local issues. The result of all that means that magistrates will no longer be responsible for organising cases which come before them. Administrators will be able to pick and choose the composition of the tribunals in circumstances where the liberty of the individual is at stake. Such decisions have the potential to be based more on performance indicators than justice.
Steps must be taken to ensure the continued integrity of local benches which maintain judicial control over jurisdictional issues, such as listing of cases. In the Lord 1179 Chancellor's paper, Modernising Justice, reference is made to the Crown Prosecution Service being made responsible for listing, thus manifesting an appearance of bias.
One other area which threatens judicial independence at its very roots is the provision relating to the extending role of the justices' chief executive. The Government's intention to produce a performance charter, which will include targets to reduce delay and improve fine enforcement, will compromise the judiciary if the chief executive is permitted to direct the justices' clerks in all matters, except giving advice in individual cases.
The Magistrates' Association already has examples of chief executives interfering with sentencing and fine-enforcement measures. Defining all the justices' clerk's functions, apart from certain limited circumstances, as merely administrative in Clause 61, when the other duties include giving advice to panels at general meetings and dealing with the grant of legal aid, is a very dangerous view to take.
It needs to be made abundantly clear in statute that the chief executive must not and cannot direct the justices' clerk on any legal issue concerning the bench, or in relation to his or her own judicial or legal powers. Section 8 of the Justices of the Peace Act 1997 has proved to be deficient in ensuring the integrity and independence of the justices' clerk. Allowing chief executives to direct justices' clerks, when performing statutory duties in relation to legal issues under Clause 60, is a fundamental breach of constitutional law.
It would appear that the noble and learned Lord the Lord Chancellor is becoming prescriptive in relation to his directions. Take, for example, the directions to advisory committees on the appointment of justices of the peace, which no longer allow the committees to use their own initiative and judgment. Here he is becoming prescriptive in relation to judicial matters through a justices' chief executive.
I understand that there was to be a period of consultation which dealt with the role of the justices' clerk. The period for submissions ended on 30th November 1998, yet the Bill was published on 2nd December 1998. The Government pride themselves on being a listening government. In this respect they have listened only to themselves.
§ 8.6 p.m.
§ Lord Ackner
My Lords, the noble and learned Lord the Lord Chancellor recently assured us that if he were permitted certain sartorial concessions he would do his job more efficiently. I suppose, like interest rates, that takes some time to work its way through the system. We must be patient. I am deeply disappointed at his failure, not merely to deal with, but to disclose the very serious constitutional principles which relate to Part III. I propose to take this as the principal point, as the cardinal point, or perhaps I should say as "the cardinal's point". It has a significant Wolsey undertone.
Some nine years ago, in a Green Paper, the Conservative government proposed that in future the Lord Chancellor should make the final decision on 1180 standards of education and on conditions for training advocates, and that he should prescribe the principles to be embodied in codes of conduct for advocates and be empowered to make decisions on rights of audience in the High Court and the Court of Appeal by means of subordinate legislation. The judges, who were carefully defined as the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, the Lord Justices of Appeal and Justices of the High Court, responded robustly. In their written response they said:If the proposals are adopted, he—that is, the Lord Chancellor—will be the final arbiter in all these matters. He will have the power, which no Government Minister has hitherto had, and no Government has hitherto sought, to exercise ultimate control over the profession of advocacy in the Courts. We regard this as a grave breach of the doctrine of separation of powers even though it does not directly threaten the independence of the judges themselves. The obvious risk which gives rise to our concern is that some future Lord Chancellor could use these powers to control the conduct of advocates in such a way as to deter them from representing the interests of unpopular minorities or those who are seeking to challenge decisions of the government of the day".I intervene to say, "Compare the position of Malaysia at the moment". The quotation continues:This may be unlikely to happen for many years to come but once the power is given the risk that it may be so used by some future government (which might contain a Minister of Justice), cannot be disregarded. The Government should recognise that it has gone too far in making these proposals and should accept that such powers as the Lord Chancellor may require should only be exercised by him with the concurrence of the Judiciary. In this way the necessary separation of the proper powers of the Judiciary and those of the Executive would be preserved".The Government rightly gave way and the Courts and Legal Services Act 1990, and in particular Schedule 4, obliged the Lord Chancellor to obtain the concurrence of all four of the designated judges to any alteration to rights of audience and to standards of education and conditions of training for advocates.
Prior to the issue of the White Paper, The Way Ahead, the Lord Chancellor introduced legislation designed to enable him to have as the Permanent Secretary in his department some other civil servant than had been prescribed by the Supreme Court (Officers) Act; namely, a member of his department who was a lawyer or who had been there for at least five years. In the debate on the Supreme Court Offices Bill, the Lord Chancellor said:The Lord Chancellor is at a critical cusp in the separation of powers between Parliament, government and the judiciary".I leave out one sentence.Under the previous government the public were disturbed that the separation of powers was not alive and well because the judiciary and the executive appeared to be at war. It is for the Lord Chancellor to ensure that the public can have continuous confidence that our system, based on the separation of powers, is working".—[Official Report, 25/11/97; col. 934.]That makes it even more surprising that when the Lord Chancellor issued his White Paper, The Way Ahead, there was no reference at all to that doctrine or to the fact that the Lord Chancellor was intent on breaching it. It provided a very short consultation 1181 process and, I expect to the surprise of the Lord Chancellor who was expecting an easier ride, the judges provided written memoranda on this very subject.
As the leaders of the judges, both in the High Court and in the Court of Appeal—namely, the Lord Chief Justice and the Master of the Rolls—have sought to dissociate themselves from that advice, perhaps I may be permitted to refer to what the judges said because I think that they have been treated in a very cavalier fashion. The lengthy paper which accompanies the issue of the Bill does not refer to the judges' responses. They are ignored and it appears that their proposals are not worth seeking to deal with in any way.
However, perhaps I may draw them to your Lordships' attention. The High Court judges said in terms:The predominant view is to reiterate the opinion expressed in the Judges' Response to the 1989 Green Papers".They then set out what I have read to your Lordships, and continued:Whether properly viewed as a constitutional issue or not, the High Court Bench strongly support the suggestion of the Court of Appeal in this regard, to the effect that it is insufficient for the Lord Chancellor only to consult the Judges. It is recognised that a veto is unacceptable: a system for identifying majority approval must be established".In its written response, the Court of Appeal said, inter alia:We accept that the traditional role of the Judges as being the sole arbiters of those who should be entitled to appear before them is no longer practical or desirable. We also accept that the need for the unanimous agreement of the designated Judges may repose too much power in the hands of any one designated Judge. But what we do not find acceptable is that the designated Judges should be relegated to a purely consultative role. The separation of powers is still an important constitutional process: and the position of the Lord Chancellor as head of the judiciary and a government Minister is anomalous. While the Lord Chancellors are, and should be zealous to maintain the independence of the Judiciary, like all spending Ministers they are subject to Treasury constraints. There is an inevitable conflict between the desire and need, which we recognise, to contain the costs of justice and the equally important need to maintain standards …It is quite untrue that Judges are concerned to preserve the monopoly of the Bar in the Higher Courts because they themselves came from the Bar. It is our view that it is insufficient for the Lord Chancellor only to consult the designated judges. He ought not to change the rules without the concurrence of the majority of them".There was also a response from the Council of the Inns of Court, which stated,We understand why it may be considered wrong that a single designated Judge, however eminent, should have the power to veto changes to the grant or exercise rights of audience approved by the Lord Chancellor and the other three designated Judges. But we do not understand why it should be necessary to go to the opposite extreme and relegate the Judges to the role of consultees only. We agree with the views expressed by Mr. Sydney Kentridge QC in the memorandum dated July 29, 1998 annexed hereto.As Sydney Kentridge QC points out, the powers the Lord Chancellor proposes to take would be exercised by him not as head of the judiciary, but in his ministerial and executive capacity. Such powers would increase the power of the Executive over the judicial process and would erode the independence of both the Bench and Bar. We also agree with the view expressed by the High Court Judges in paragraph 9 of their response to the consultation paper".1182 If that was not good enough, there was a wide-ranging speech made by my noble and learned friend Lord Steyn, a Lord of Appeal in Ordinary, who virtually started his speech with this cautionary observation:When the Government has a massive majority in the House of Commons the Executive becomes all powerful and Parliamentary scrutiny of the acts and intentions of the Executive is not always as careful as it ought to be. That is when the constitutional principle of the separation of powers becomes more important. In its judicial capacity the House of Lords has emphasised that the British Constitution is firmly based on the separation of powers".I shall not weary your Lordships with further excerpts, but there is a paper in the Library, of which I was the author, published in the New Law Journal of 19th October, which has the great merit of not setting out my views, but the views of the judges to whom I have made reference.
On the second day of the debate on the Address the noble Lord, Lord Kingsland, raised the issue of the separation of powers and back came this very odd observation by the noble and learned Lord the Lord Chancellor. He said,So far as rights of audience go, I can reassure the noble Lord, Lord Kingsland, that there will be no violation of the separation of powers because, in the unlikely event that I, as Lord Chancellor, having consulted with the judges and with the professions, have to exercise a fallback power to impose rules upon the profession … I would not do so without the support of an affirmative resolution of both Houses of Parliament".—[Official Report, 25/11/98; col. 127.]That shows a remarkable misunderstanding of the entire doctrine. It presupposes that the Lord Chancellor has removed from the judges their existing powers and. having done so, he then makes a decision which they do not like. In order to get further authority for his Executive act, he goes to Parliament for an affirmative resolution. As it has been pointed out, we all know that affirmative resolutions are never scuppered except in one case which related to sanctions during the Rhodesian affair. As my noble and learned friend the former Lord Chancellor, Lord Mackay of Clashfern, may recall, I sought to attack his order relative to conditional fees and I very nearly won. I lost by five votes. I would have won if the convention had not been adhered to of the Front Bench spokesmen urging on their troops, but resiling from voting themselves. If they had voted I would have won by ten votes. So the attempt which my noble and learned friend the Lord Chancellor sought to make to quieten the anxieties of the noble Lord, Lord Kingsland, seems to me to be far off the mark.
As it now stands, the position under this Bill is that the Lord Chancellor can decide who can appear in court; who can conduct litigation; what rules of conduct lawyers can have; what qualification regulations lawyers can have; whether lawyers can change their rules and whether they can change their qualification regulations.
We all know that the noble and learned Lord the Lord Chancellor enjoys the exercise of power. He has told us that he is chairman of no less than five committees of the Cabinet. My noble and learned friend, the former Lord Chancellor, was the chairman of none during his final year. But the Lord Chancellor must be prepared not only to exercise powers but to share them. 1183 Unless and until he does so he has seriously breached a very important constitutional issue designed to protect the man in the street from excessive Executive power.
§ 8.25 p.m.
§ Lord Meston
My Lords, I apologise for any discourtesy in not being present during the earlier part of this debate. I was exercising a right of audience elsewhere. I should also declare an interest as a barrister who does, and who hopes to be allowed to continue to do, legal aid work. I welcome the acknowledgement, despite its guarded understatement, in paragraph 1.4 of the White Paper where it says that most lawyers are decent and hard-working people of integrity and commitment and who do not all become rich.
If I was left with any emotion during the long debates leading to the passing of the Courts and Legal Services Bill, it was of some pride at being an advocate adhering to the cab rank principle and willing to do legal aid work. In passing, I welcome the commitment in paragraphs 1.14 and 1.15 of the White Paper to law reform, including continuing statutory consolidation and pruning, because surely access to justice requires accessible law.
But this Bill is concerned with wider questions to which I suggest two basic propositions. The first is that the right to conduct litigation and to appear in court involves the provision of a public service; and, secondly, that the public, both the users of legal services and the taxpayers who fund their provision, are entitled to effective quality control. In that respect I would like to say how much I agree with everything said by the noble Baroness, Lady Kennedy of The Shaws.
So the questions to be confronted in considering this Bill are these: what degree and standard of quality control should there be, and where should it come from? Clearly, the professional bodies should have primary responsibility for these matters. I do not believe that they will fail to meet that responsibility. Perhaps I may add one further observation. Lawyers are now much better trained than I was when I qualified. The growth of accreditation schemes initiated by specialist legal associations will maintain and raise standards, without the need for Executive interference.
Much reference has been made to Clause 35 and Schedule 5 to the Bill, which give the Lord Chancellor the power to make and break the rules of the professional bodies. The purpose, which is clearly stated in the White Paper, is to ensure that professional bodies cannot frustrate the Government's objectives. No doubt the Government would say that these powers are to be regarded as a last resort, and so they must be. But I would seriously question whether in reality their exercise will ever be necessary. Certainly as regards the Bar, I do not foresee any attempt to exploit a monopolistic position, and yet I would expect the professional bodies to reserve the right to argue for the maintenance of standards, which is the proper concern of those who work daily in the courts.
In the White Paper there are repeated references to parliamentary approval being required of the changes, if any, to the rules of the professions. I do not find that 1184 requirement set out in the Bill itself. I ask whether I am correct in assuming that the affirmative resolution requirement derives not from the Bill but from the Courts and Legal Services Act 1990, which this Bill will amend, even though, as the noble and learned Lord, Lord Ackner, indicated, the affirmative resolution procedure may be an inadequate safeguard.
I turn briefly to Clause 36 of the Bill, which states the overriding duty of advocates to the court and also the duty to comply with professional rules of conduct. That emphasises what most of us take for granted. The Explanatory Notes to the Bill state that the purpose is to protect the independence of all advocates and litigators. In reality, it is designed to make clear to employed advocates that these basic duties prevail over any duty to those who pay them. I question what sanctions exist for the breach of those duties.
Presumably one of the sanctions must be punishment for contempt of court. If that is correct, should it not be on the face of the Bill? More importantly, will the powers of the court to deal with breaches of these fundamental duties extend beyond the employed lawyer who has acted through misplaced loyalty to, or under pressure from, his or her employer? Will it extend to the employer himself who exerts that pressure and who may not himself be a lawyer or otherwise answerable as an officer of the court?
I turn briefly to the question of appeals. The rules concerning appeals at various levels have become increasingly complicated and impenetrable. The rules in the Court of Appeal, supplemented by practice direction after practice direction, occupy a disproportionate part of the White Book. I hope that the Master of the Rolls will not mind my saying so.
However, I only wish to raise a concern about Clause 39 and the restrictions on second appeals. I can see that the expression in the Bill "some other special reason" will become one of those phrases which take on a life of their own, generating a considerable body of case law. More importantly, while there is clearly an argument for restricting a second appeal when the first appeal substantially upheld the first instance decision, it is less obvious that there should be such restrictions when the first appeal overturned the original decision. The originally successful party should not be deprived of the benefit of that success by a flawed first level appeal, coupled with an inability to meet the requirements presently stated in the Bill. I suggest that there should be a lower threshold, at least when the first two decisions are not pointing in the same direction.
Finally, I believe that we shall need to look critically at the introduction of conditional fees in family cases. I welcome the recognition that work concerning children is manifestly unsuitable to conditional fee agreements. It is a platitude that there are no winners or losers in such cases, except perhaps the children themselves. But in matrimonial financial and property cases the law is not providing compensatory damages; it is redistributing finite family resources which are often barely enough to support the family when it is together, let alone when it breaks up.
1185 The statutory scheme under the Matrimonial Causes Act 1973 requires first regard to be given to the interests of the children. Moreover, the law requires a sometimes complex discretionary exercise dealing with actual and prospective assets—the past, the present and the future—dealing with prospective interests; dealing with domestic and business assets of varying degrees of liquidity and illiquidity; and nowadays dealing with pensions. It is not just concerned with assets but also with responsibility for the liabilities left when a marriage has broken down.
The latter requires a great deal of skill and care in unravelling fairly the joint financial lives of parties who have very often been together for a long time. It is, therefore, not obvious in such cases who wins and who loses. Moreover, practitioners are encouraged not to think in terms of winning and losing. Similarly, they are not encouraged to allow their clients to think in those terms; but rather there is very properly nowadays an emphasis on mediation and conciliation, not only encouraged by the legal associations to which most of us belong but also by the court system itself. In particular I doubt very much that insurance, which underpins conditional fee agreements in ordinary civil litigation, would be available to meet the costs of the successful party if the client who is subject to such an agreement loses the case in whatever terms that may be described.
I can also see the difficulties which presently exist with the legal aid statutory charge on former matrimonial assets—which can last for many years—being replaced by charges in favour of the legal profession. It is very difficult to envisage how this will work in practice and even more difficult to see how it will be a benefit to clients.
§ 8.35 p.m.
§ Lord Hacking
My Lords, if I may say so—and no one else has said this so far in the debate—my noble and learned friend the Lord Chancellor is looking absolutely splendid without his breeches. He has every right to be pleased at the good reception that the Bill has received from all quarters of the House. This is a good Bill. For a long time there has been a denial of access to justice for an increasing number of our population not poor enough to be able to obtain legal aid and not rich enough to avoid the cost and risk of litigation. Therefore, my noble and learned friend is absolutely right to overhaul the entire system for civil and criminal cases and; in doing so, to set up a new legal services commission coupled to a new community legal service. That will mean that the right resource can be delivered in the right quarter at the right value.
I believe that the innovation of legal aid was very important. It is something of which my party still has every right to be proud. It was introduced in 1949 and it worked well for many years. This, in one particular regard, is relevant to Clause 5(1)(a), under which the new community legal service is under a duty to provide,general information about the law and legal system and the availability of legal services",and must do so in a clear and lucid way.
1186 I should tell my noble and learned friend that only last Friday at the Queen Elizabeth II Conference Centre the Legal Aid Board received a prize at the "Plain English" awards ceremony. Indeed, it received a gold award for the clarity of the explanation of the function of legal aid in its leaflets. I do not want to move my noble and learned friend too quickly on to the subject of his right honourable friend the Home Secretary but, at the same gathering, the Home Secretary received a gold award for gobbledegook. However, he received it most humbly and said that it would be an encouragement for him and his officers to follow—he did not say emulate—the example of the Lord Chancellor's Officers. It would serve as an encouragement for the Home Office to do better in the future.
I can well remember sitting on legal aid committees in the 1960s. I particularly remember sitting on the legal aid committee in Nottingham. By and large—and this is some 35 years ago—the legal aid system worked well. However, times have changed. Therefore, my noble and learned friend is quite right not only to act but to do so decisively and radically in order to deal with the serious problem of denial of access to justice. Therefore, I congratulate him not only on the Bill but also on the White Paper, although we were not given as much time to study it as I am sure he would have liked us to have. Moreover, I should congratulate him on the 60 or so pages of printed Explanatory Notes which accompany the Bill. Indeed, this is my first recollection, after many years in this House, of a department having gone to such care to prepare information about a Bill. We should all be most grateful to my noble and learned friend in that respect.
My noble and learned friend is also quite right to make provision of state funds for civil and criminal cases more flexible and cost-effective, as well as pressing forward—I say this in the presence of the noble and learned Lord, Lord Ackner—with the conditional fee arrangements. I have never considered that the legal profession could not be trusted with conditional fees, any more than I consider now, in the proposal contained in the Bill, that the employed lawyer cannot be trusted to carry his proper responsibilities to the court.
I am also very pleased with the new provisions on the rights of audience and the right to conduct litigation, which are to be found in Clauses 30 to 36 of the Bill. They repeal the earlier rights of audience provisions of Sections 31 to 33 of the Courts and Legal Services Act 1990. Now there is to be an even playing field between barristers and solicitors—both have the rights of audience and the right to conduct litigation. It was particularly pleasing to read the memorandum supplied by the Bar Council and to learn that it supports this proposal in principle. As the noble and learned Lord, Lord Mackay of Clashfern, will remember, this was a very contentious matter in many debates during the passage of the Courts and Legal Services Bill.
I am quite happy with the provisions of Schedule 5, under which the noble and learned Lord the Lord Chancellor has a duty to consult the appropriate body and then has a duty to put his proposals forward on the affirmative procedure. I noted that the noble and learned 1187 Lord the Master of the Rolls also supported the provisions in Schedule 5. I was sorry to learn from the noble and learned Lord, Lord Lane, that other judges take a different view. But we have heard the very clearly expressed views of the noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Master of the Rolls, and I am wholly satisfied with their views.
I remember very well the circumstances of the Advisory Committee on Legal Education and Conduct set up by the noble and learned Lord, Lord Mackay Clashfern. He did his very best to control its size but, as it went through the Houses of Parliament, it grew like Topsy and became much larger than the noble and learned Lord originally would wished. Now it has become a stalemate and something has to be done. The best example of how much of a stalemate it has become lies in the words of the noble and learned Lord in opening this debate, when he drew our attention to the six-year delay over the consideration of employed solicitors' rights of audience.
I have two caveats. The first is the application of Clause 18 of the Bill, which denies the provision of legal aid (if I may so refer to it; I know the legal aid system is going and I use it as a colloquial term) for services relating to any law other than that of England and Wales, except when it appears to the Lord Chancellor that a foreign law is being imposed by a treaty obligation.
I had a close connection with the passage of the Civil Aviation (Amendment) Act 1996. I hope your Lordships will not think that I am boasting, but that Act, before it came to the statute book, was born of a joint opinion which I wrote with Mr. Robert Webb, QC. I have drawn to the attention of my noble friend, who will be winding up, that in that Act, in order to establish a defence to committing a criminal act on a foreign aircraft arriving in the United Kingdom, the defendant is entitled to take the point that while the act he performed in that aircraft might have been an offence under English law, it was not an offence under the law of the country in which the aircraft was registered. Indeed, he has a duty under the Act to serve a notice stating the facts upon which he believes this requirement has not been met, and show the grounds for that opinion. I would be grateful if my noble and learned friend would look at that. Perhaps we could deal with that with a suitable amendment during the Committee stage.
The second matter is perhaps more substantial. Under the provisions of Clause 7(5) and Schedule 2 all legal aid is being withdrawn from all personal injury cases, that is to say cases arising out of motor car accidents. I believe that is a mistake. We should not go that far at this stage. The personal injuries system has worked quite well. I am told that there has been £520 million in compensation for 76,670 legal aid victims. The net cost to the public is £34 million. I refer to the year 1996–97. There have also been £90 million in benefits repaid to the DSS by insurers arising out of payments that the DSS has had to pay out. There have also been savings for the National Health Service.
1188 The poor litigant who would be entitled to legal aid has, under the conditional fee system, to pay an insurance premium and then pay out disbursements. It is quite possible that the very poor would not be able to launch a conditional fee arrangement because their resources would not be enough to pay even that limited amount of money.
Having made those two observations, I very much believe that the noble and learned Lord the Lord Chancellor is carrying forward the work of his predecessor. I supported his predecessor throughout the passage of the Court and Legal Services Bill and I wish to support my noble and learned friend throughout the passage of this Bill. It is a most welcome Bill. I say again, it is a good Bill.
§ 8.48 p.m.
§ Lord Thomas of Gresford
My Lords, certain important principles have been stated by the noble and learned Lord the Lord Chancellor. We welcome—perhaps not with the enthusiasm of what one might call the metaphorical red scarf and rattle of the noble Lord, Lord Hacking, a few moments ago—that government resources should be targeted efficiently to areas of greatest need; that more people should have access to justice; that areas covered by pro bono work or by law advice centres should be properly funded.
We agree that the provision of legal support in such areas as refugees, asylum-seekers and the disempowered, to which the noble and learned Lord the Lord Chancellor referred, is haphazard. We welcome in particular the commitment of the Lord Chancellor to maintain the same level of resources as at present for the provision of legal services, even if the organisation and targeting in those resources is to be changed. For that reason, we welcome reform of the legal aid system and the introduction of a legal services commission with a broader and more flexible remit.
The interests of the consumer of legal services must be paramount, but it is very much in the interests of the consumer that there should remain a strong, skilled body of lawyers whose professional expertise, exercised on behalf of the consumer, is adequately rewarded. As the noble and learned Lord said, while it is true that the state cannot match the private rates of lawyers, the gap between those who are remunerated privately, by commercial concerns and insurance companies who, as the noble Baroness, Lady Kennedy, said, in themselves derive their funds from citizens as ordinary consumers or premium payers, must not be so large as to divert talent away from serving the generality of the public.
In the clash with authority in judicial review applications—whether with local or national government, with various courts, or with insurance companies on behalf of clients injured in personal injury cases, it cannot be right that the consumer, the ordinary citizen, should be served by second-rank lawyers. There has to be equality of arms. But the way of the world is such that those attracted into the bureaucracies may well be adventurous, idealistic youngsters, as the noble Lord, Lord Windlesham suggested; but, unhappily, adventurous, idealistic youngsters fail to become tenants in chambers or partners in solicitors' firms.
1189 We are here not to support or maintain any existing structure of the legal profession if it is failing the public. That is the question: is it failing the public in any sense other than that it is expensive? Is the quality of justice today not being served by the lawyers who are practising?
It is worthwhile spending a moment considering the qualities of the profession as it exists. I of course declare an interest, having practised for five years as a solicitor and for about 20 or 30 years at the Bar. Quality at the Bar has been and is assured by high standards of entry and by intense competition for pupillage, for tenancies and then for work. The ultimate test of success as a lawyer is, "Can you persuade the tribunal before which you are appearing? Have you the trust of that tribunal?". Another assurance of quality is that instructions are received not from lay people who cannot choose between individuals but from professionals who can pick and choose those who are most likely to persuade in the particular kind of case, or who have recognised and earned expertise for the purpose of specialist advice. The cab rank principle, to which my noble friend Lord Meston referred a moment ago, is an important principle in ensuring fairness and the distribution of quality between cases and between members of the Bar.
All this is supported by a strict and pervasive disciplinary code, a code that derives from the pressure of colleagues, from the need to preserve a reputation for one's self and for one's chambers, from the views of one's seniors, particularly the head of chambers, and of course from the disciplines exerted by the judges, the Bar Council and, in the very last resort, by the noble and learned Lord the Lord Chancellor's secret files, to which none of us has access. There is a tradition of independence in which the duty of the advocate to a wider concept of justice comes first, then duty to the court and then duty to the client, whether it is a prosecuting authority or a lay client.
I do not believe that this existing quality of representation can be assured by the mission statement in Clause 36 of the Bill. Nor do I believe that a bureaucracy, such as is provided by the Crown Prosecution Service or the proposed defence service, can ensure it. In answer to the noble Lord, Lord Windlesham, who I see is now in his place, the Crown Prosecution Service has had a series of strong directors backed by a talented group of lawyers, but many believe that the size of the organisation and the extent of the bureaucracy have militated against efficiency. Furthermore, its decisions and the decisions of the Serious Fraud Office have not been without controversy. It is rather strange that an extension to the role of the CPS is proposed at a time when urgent reforms have been brought to that service—to regionalise it, to provide the equivalent of district attorneys, and so on.
When one looks at the existing organisation of the legal profession, one has a country-wide service. Around 11,000 legal aid outlets are provided by solicitors with access to the highest expertise. That is the service which the Bar provides. A solicitor can go to the most qualified barrister in the particular area. That may arise perhaps only once in his career. The structure 1190 is something like a pyramid. In advocacy terms, the base is the solicitors who do the preparation; the advocate, the sole practitioner, leads in court; in a heavy cast, junior counsel provides in valuable research, support and advice; and the lead advocate concentrates upon presentation and argument.
That structure has not grown up by chance. When we hear talk of restrictive practices, the suggestion is that the legal profession is a crusty out-of-date organisation. The fact is that it has arrived at an efficient and economic way of presenting litigation. It does not pay an ordinary solicitor, whose hourly rate is much greater than that of the vast majority of counsel, to hang about in court waiting for cases to come on. On the other hand, as counsel are not supporting a large bill for staff costs, their charges are lower and they can move quickly from case to case and gain in expertise.
I have never opposed the removal of restrictions on solicitors' rights of audience. Those solicitors who can compete at the highest level should compete. But the economics of the whole profession do not make it possible for them to do so. It is not worth their while. It is far better to have a young advocate to do that kind of work than for the solicitor to attend court himself.
In the course of the debate today three issues have given rise to the greatest controversy. Perhaps I may refer to them briefly. The first is block contracting. My noble friend Lord Phillips of Sudbury asked a question to which I should welcome an answer. Is it proposed that the block contract will be an exclusive contract; that is to say, a contract for a geographical area for a fixed period of years? Does it envisage a block of cases at a fixed price, inclusive of advocates' fees? If that is the case, there is the geographical problem of having one firm of solicitors in, for example, the area in north Wales where I have practised as a solicitor. If there is only one designated firm and legal aid is needed on both sides, to which firm does the other party to the dispute go? The system provides no room for the unexpected, a point made by the noble Baroness, Lady Kennedy. It shifts the advantage to the insurer or to the large defendant who can ambush with procedural applications and delays and exhaust the budget that has been given to any particular case within that block contract. It will also see the end of mixed practices—a point to which my noble friend referred—the kind of practices where perhaps only 10 or 15 per cent. of the work is legally aided. Clearly, that kind of expertise will no longer be available if exclusive block contracts come in. We shall be examining that issue with considerable care.
The second issue is rights of audience for the CPS in all the courts. Successive Directors of Public Prosecutions have called for the extension of the right of audience in the higher courts to their staff. The motivation has always appeared to be, to me at least, improvement in the standard of recruitment, retention and morale. That ought not to be a major factor influencing policy. Those who accept employment with the CPS do so for the security of a salary, pension and employment rights. Their promotion depends on performance. As the noble Lord, Lord Hutchinson, said, there is no yardstick of performance in prosecution work 1191 save for the number of convictions that are obtained. There is no open competition. Those are the forces which at the independent Bar ensure quality.
I have seen in Hong Kong how the system adopted by the Attorney-General's chambers can breed difficult prosecutors who will over-charge—that is to say, put in a higher charge in the hope of a lower plea. The case of Hui Chi Ming is an example of that. It is noteworthy that in a forthright letter which he wrote to The Times some time ago, Mr. Michael Thomas QC, who was Attorney-General of Hong Kong and head of the prosecution service, firmly opposed the concept of having a similar service in the United Kingdom. If the proposals of Lord Justice Glidewell produce a two-tier Crown Prosecution Service, which consists of a pool of trial advocates who are serviced by a base of instructing lawyers and support staff, what is being gained? If, on the other hand, it is not organised in that way, and each lawyer carries a caseload which consists both of preparation and advocacy, how often will that individual lawyer appear to conduct a serious case at Crown Court level, much less appeals to the higher courts?
The noble and learned Lord, Lord Woolf, referred to his experience in the Army Legal Service. I have perhaps a little more recent experience of courts martial in the Army Legal Service. I have noted a disadvantage as regards those able and competent lieutenant-colonels and colonels in the Army Legal Service—about whom I cast no aspersions—in that they may perhaps deal with one murder case in a year or in two years. In other words, they do not have the day in, day out, high responsibility of heavy cases. Problems have arisen from that situation.
The third area of controversy is that of the criminal public defender system. With my colleagues on this Bench, I believe that it is a matter of principle that the state should not control the defence of individuals who are themselves charged with criminal offences by the state. But even if one were to have such a system, it would have all the problems that I have mentioned in relation to the Crown Prosecution Service; namely, bureaucracy, no competition and no independence. I accept entirely what my noble friend Lord Goodhart said; namely, that experience in the United States shows that these public defender systems are notorious for incompetence.
Public confidence in the criminal justice system is essential. It impinges upon more people than any other area of the law and its consequences for them and for their families are, by and large, more dire. Victims will not report crime; witnesses will not come forward; and juries will not convict if confidence in the criminal justice system is diminished. Nothing is perfect. There have been miscarriages of justice under our present system. However, I believe that the unlimited extension of rights of audience to the CPS and the creation of a state Crown defender service will destroy independence and impose a bureaucracy which, in my view, will be to the detriment of justice.
I refer to the cardinal principle—as the noble and learned Lord, Lord Ackner, has termed it—which appears to us to be a serious breach of constitutional 1192 principle. I can understand the impatience of the noble and learned Lord the Lord Chancellor to move forward on the issue of rights of audience. I have shared that impatience. I have spoken on the topic and the noble and learned Lord the Lord Chancellor will remember that he supported me when I moved an amendment to extend the rights of audience of solicitors in the higher courts in some of the earlier legislation in the previous term. Although he may be impatient to move forward on the rights of audience, why does he require for that purpose sole power to alter the qualification regulations and the rules of conduct of the Bar and of the Law Society?
It has been said that the affirmative resolution procedure is of little value as a safeguard in your Lordships' House. I agree with that. I heard what the noble Lord, Lord Hacking, said in full support of Schedule 5 to this Bill. I wondered what on earth was wrong with the clauses upon which he expressed his reservations. It seems to me that this matter must be carefully considered by the whole of your Lordships' House. We on these Benches welcome some of the principles which are contained in the Bill.
§ 9.4 p.m.
§ Lord Kingsland
My Lords, we have now debated this Bill for nearly six hours and I think the kindest thing I can do for your Lordships is to speak briefly. I have just four points to make.
The first concerns the nature of the Bill. The Bill is a skeleton Bill. It contains no fewer than 17 new powers for the Lord Chancellor to exercise either in the form of statutory instruments or in the form of directions. It will be extremely difficult to scrutinise this Bill properly in Committee unless the noble and learned Lord can give us some indication of the content of those instruments and directions. I hope therefore that between now and then he can be as helpful as possible in this regard. If I mention Clause 9 and the approval he has to give to the funding code, I refer to only one of the most important ones.
It is not exclusively the fault of the present Government that far too many of the Bills of the past decade have been of the same nature. I would not like to suggest for the moment that one of the reasons the Bill is in this form is that the noble and learned Lord has not yet made up his mind about what he wants to put into it. I shall assume that it is all in his head and the homework will be easy to complete by the middle of January when the Committee stage starts.
The second point that I want to make relates to the interventions made by the noble and learned Lords, Lord Ackner, Lord Lane and Lord Mayhew, and, I think, by a number of other noble Lords, too, on the separation of powers. The separation of powers is both the most important and the least visible part of our constitution. Its principle is simple. The legislature and the Executive do not interfere in the conduct of the courts, and the judiciary does not interfere in the conduct of the legislature. For about 200 years this principle guaranteed freedom in this country before we had democratic elections. Nowadays, when in another 1193 place it is no longer possible to control the executive by the democratic process, the only way in which executive decisions by Ministers are controlled is through the courts, through the judges, and through the submissions made to those judges by the Bar.
The courts, the judiciary, the Bar, and the solicitors who instruct the Bar, are therefore at the very centre of the individual liberties of the citizen of this country. It is no wonder, therefore, that many noble and learned Lords are concerned about the treatment of the separation of powers in the Bill.
It is my submission that if the Lord Chancellor insists on approaching the matter in the way that he explained to me in the debate on the gracious Speech, he will be in breach of our constitution. He may continue to disagree with me, but I hope that he will reflect carefully on the matter over Christmas and the New Year.
The third point I wish to make concerns the definition of "competition" in regard to legal services. Here I was struck by a number of excellent speeches from noble and learned and noble Lords. For example, the noble Lord, Lord Phillips, pointed out that as a result of the Bill there is likely to be a substantial reduction in the number of solicitors who would be the beneficiaries of block contracting. The noble Lord, Lord Thomas, underlined the point.
In the excellent briefing I received from the Law Society, I understood that the figure was to drop from 11,000 to 6,000; but the noble Lord, Lord Phillips, suggested that the fall would be even more alarming. I am aware that the noble and learned Lord intends to use other ways of providing legal services to those citizens in need of them. It may be that the difference between 3,000 and 11,000 will be made up by other providers of legal services. We need to know the answers to those questions.
We also need to know what happens when a provider of legal services runs out of money but still has clients who fulfill the funding criteria. I do not know whether the noble and learned Lord, Lord Falconer, will be in a position to respond immediately; but at Committee stage we shall have an opportunity of dealing with the matter in more detail.
The next point about the provision of services was brilliantly made by the noble Baroness, Lady Kennedy. It is the importance of defining the quality of the provision of those services in the block contracts. It must be right that in the Bill, whether in a main clause or an annex, or even in a direction made under it, there is a clear definition of what is expected of those who benefit from public money in providing the services to the public. That is the crucial issue which was extremely well explained. I shall not attempt to embellish it.
A further point I wish to make in respect of the provision of services is about the profession itself. The noble and learned Lord the Lord Chancellor frequently draws parallels between the legal profession and the medical profession in order to explain how much more money members of the legal profession receive than the medical profession. That may or may not be true; but what is true about the medical profession is that it is divided between generalists and specialists, general 1194 practitioners and consultants. To become a consultant, one has to study and serve apprenticeships of between 10 and 15 years after one qualifies as a doctor. How does the noble and learned Lord see the future of the legal profession in the light of his decision to give rights of audience not only to solicitors but also to employed lawyers? Does he still see the legal profession as a profession divided into generalists and specialists along the lines of the medical profession? Alternatively, does he have some other vision?
In my submission, it would be a great mistake to allow the profession to develop in a different direction from the way it has developed so far. I can quite understand the merits of solicitors being able to compete equally with barristers in order to become specialists; but I can see no value in allowing the high standards the profession has had throughout the centuries to fall or, to use the contemporary expression which I do not much like but which is effective, to be dumbed down. I would not like to see cheapening of the standards as a result of the changes. I am sure that the Bill can be amended in such a way as to ensure that that does not happen.
I am not an enthusiast about CFAs. My main reason is that it turns lawyers into speculators. It also tests the ethics of the members of the profession to the limit. If their livelihood depends on the outcome of a case, there will be a terrible temptation to all of them—to which I hope none will give in—not to disclose documents which would have a crucial bearing on the outcome of the litigation.
I am also unhappy about the extent to which the noble and learned Lord has been able to research the availability of insurance at the right price. Nor do I think we are yet sufficiently well informed about the degree of risk aversion of those solicitors who will be responsible for doing CFA work. I am extremely pleased, therefore, to see that the noble and learned Lord has caught a whiff of those concerns and allowed for them in Clause 7(7) of the Bill. I shall be most interested to hear at Committee stage how he views the relationship between that clause and the main provision in Schedule 2.
Finally, there seems to be a movement towards the nationalisation of the legal profession. It is quite clear that the noble and learned Lord is enthusiastic both about the availability of state employed defence advocates and state employed advocates for the prosecution. I am bewildered by that for two reasons: the first is ethical, and the second is practical.
The ethical reason was made outstandingly well by the noble Lord, Lord Hutchinson of Lullington. I shall make no attempt to improve on that. It is clear that state prosecuting organisations have particular policies about prosecution; and those must conflict with the duty of an independent advocate to represent the case for the Crown in a court. I find it hard to understand how that cannot be so. In any case, as we all know from the Glidewell Report, the prosecution service has many other worries of an administrative nature which might make it extremely difficult to add the task of advocacy to its role.
1195 It may well be that, so far as concerns the defence service, state defenders are simply employed to fill up gaps in the system left by the operation of independently employed private barristers and solicitors. The Bill is not clear on that and I would welcome clarification from the noble and learned Lord, Lord Falconer.
The system that we have at present has lasted for 50 years. On the whole I agree with the noble Lord, Lord Thomas of Gresford, when he says that it has served us extremely well. It may not be as cost-effective as the system which will replace it—if we get the system right. But we should not decry the enormous achievement of what was one of the central planks of the welfare state. I should be loth to see its departure unless I were satisfied that what was going to replace it was much better.
§ 9.16 p.m.
§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
My Lords, we have had an extremely good debate. Not only have many distinguished lawyers and judges taken part but also a significant number of noble Lords who are not lawyers or judges. Every single one of those noble Lords from both sides of the House who is not a lawyer or a judge has greeted the proposals of the Lord Chancellor with enthusiasm.
It is worth pointing out why we have introduced the Bill. The position at present—I do not think that anyone seriously denies it—is that many people are put off obtaining help for legal problems because they think, in many cases rightly, that the legal system is slow, expensive, difficult to understand and unresponsive to their problems. Only the very poor now qualify for legal aid. Many of the very poor who qualify for legal aid do not know that they have a legal problem and have no realistic means of discovering whether they have a legal problem.
By the Bill we seek to create a new legal aid system and a new community legal service which will try to ensure that the needs of individuals are properly assessed and that public funds are spent in providing the help that people need in a cost-effective way.
We think that many people do not need to go to court to solve their problem. What many people need is help in dealing with an organisation or a body that is causing them a problem—a benefit agency, a housing association or a local authority. That is why we are committed to developing a community legal service which will improve access to information, assistance and advice services. Those who get into a confrontational situation may be better helped by mediation rather than by going to court. Those who need to go to court will be helped, we think, by the progressive introduction of conditional fees which will provide new ways of funding litigation and of opening up civil justice to those who are currently denied it.
We hope—very much thanks to the noble and learned Lord, Lord Woolf—that the modernisation of the civil justice system will mean that court procedure will be quicker, simpler and less expensive. We also believe 1196 that the taxpayer has been paying more and more for legal aid while fewer and fewer people have been helped by it. We believe that contracting for legal services will introduce competition to the market and help to ensure that public funds are spent in a controlled way on quality assured legal services. We hope that if the system works public funds will be targeted on cases of highest priority and that cases will not go to court if there is a better way of resolving the problem.
Throughout in preparing these changes we have been motivated by the needs of the users of legal services. We believe that to be the correct way to approach it. In the course of the debate no one sought to take issue with those principles. The few attacks on the Bill were related to points of detail or high principle. I shall not deal with every point that was made but with the main threads of the debate.
The first suggestion made with great force by a number of speakers, in particular the noble and learned Lords, Lord Mayhew of Twysden, Lord Lane and Lord Ackner, and to a lesser extent the noble Lords, Lord Kingsland and Lord Thomas of Gresford, that it was a constitutional insult for rights of audience to be determined by the Lord Chancellor and that it offended against the separation of powers in this country. I deal first with the constitutional argument and then the argument based on practicality and utility. The noble and learned Lords to whom I referred elided the independence of the judiciary with the question of who had the right to determine who could appear in court.
Historically, there is no justification for the assertion that it is the judiciary, and only the judiciary, that determines right of audience. I have a long list of Acts of Parliament that go back to 1836 in which Parliament has determined rights of audience. I shall not weary the House with all of them. Section 2 of the Trials of Felony Act 1836 allowed barristers and attorneys rights of audience in the magistrates' courts. In 1846 Parliament legislated to enable barristers to appear in the Court of Common Pleas, which had traditionally been reserved to sergeants of law. When the Crown Court was established in 1971 the Courts Act enabled the Lord Chancellor to direct that solicitors should be able to appear in any description of proceedings that he might specify. Rights of audience in the county court were dealt with in the County Courts Act 1984 and before that in the Acts of 1934 and 1959. These are not newfangled introductions by the Executive.
As early as 1574 the Privy Council issued instructions to the Inns of Court on various matters including rights of audience. The order giving that direction was signed not only by Sir Nicholas Bacon but also by Lord Burghley, the then Lord Treasurer and ancestor of the late lamented noble Viscount, Lord Cranborne. Historically, there is no constitutional bar on Parliament determining rights of audience.
What is the present position in relation to rights of audience? They are determined and governed by the Courts and Legal Services Act 1990 which designates the Bar Council as an authorised body to determine who may appear in court and permits the Lord Chancellor, with the designated judges, to determine changes in 1197 rules that determine who has the right of audience. Historically, there is absolutely no basis for what the noble and learned Lord, Lord Mayhew of Twysden, said set his hair on end. That is the historical and constitutional position. What about the practical position? In 1990 this Act was introduced. Between 1990 and 1998 every single application that was made to try to extend rights of audience led to a form of guerrilla warfare that ended up with a complete stalemate in relation to any extension.
§ Lord Mackay of Clashfern
My Lords, I believe that the noble and learned Lord is so carried away by his eloquence that he has somewhat exaggerated the position. The rights of audience for solicitors in private practice did not result in a stalemate. Although they did not come immediately there was no stalemate. We have been told that 700 people have rights of audience in that respect. I await anxiously to hear whether the standards to be applied to solicitors in the future will be greater or less than those standards.
§ Lord Falconer of Thoroton
My Lords, I am grateful to the noble and learned Lord for his intervention, and I stand corrected. He was right; I was being carried away rather by my eloquence. What I was meaning to refer to in relation to that was that there was an issue about employed lawyers and the extent to which they could appear in court. The position in relation to that was described at some length in an earlier Green Paper relating to rights of audience and the position was that the matter ping-ponged to and fro between the committee, ACLEC and the various professional bodies and the Lord Chancellor over a period of six years. In my respectful view it showed that the system did not work. It was an ineffective way of determining the extensions of rights of audience. That is a view that the Lord Chancellor took. It is not without significance that it is a view that the two designated judges who have spoken in this debate—namely, the noble and learned Lord, Lord Woolf, and the noble and learned Lord, Lord Bingham—have also taken.
As a matter of practicality I would respectfully suggest that the system is not working and needs to be changed. Why is it not working? Because there is in effect a stand-off—not an unpleasant stand-off but an inability to agree—between the Lord Chancellor on the one hand and the designated judges or ACLEC on the other. There therefore needs to be some form of change. The most sensible way to change it must be to give the Lord Chancellor the power to determine—
§ Lord Ackner
My Lords, I am grateful to the noble and learned Lord for giving way. There was no stand-off. What occurred in regard to employed lawyers was, first of all, a suggestion emanating in many ways from the then DPP that the use of audience by the CPS should be limited in quantity, and that went back to the Lord Chancellor and the designated judges, who pointed out that it was not the function of ACLEC to suggest amending the Act. It then came back to ACLEC for further consideration. There was a change in the constituent members of ACLEC, and that took some 1198 little time, but ultimately the Lord Chancellor and the designated judges settled on a compromise, which was that the members of the CPS should act rather like juniors in large cases and in due course they would get the experience and no doubt that would justify full rights of audience. That was not a stand-off; that was a compromise. It was a firm decision, and I imagine it has been used.
I should also point out perhaps that in the 18 months before that decision was made it lay in the—
§ Lord McIntosh of Haringey
My Lords, I think the noble and learned Lord is abusing the right of intervention.
§ Lord Ackner
My Lords, perhaps I may put it this way. Does the noble Lord and learned realise that in the 18 months before the final decision the papers remained in the office of the Lord Chancellor without anything being done, and I raised three Parliamentary Questions in the hope of getting a decision?
§ Lord Falconer of Thoroton
My Lords, I am grateful to the noble and learned Lord for describing the procedure over the period of time. I cannot comment on where the papers lay for 18 months, but, even if they did lie for 18 months in one place rather than another (which I do not know), that means that it took four-and-a-half years (ignoring the 18 months) to reach the compromise that he described, which in my respectful submission tends to make out the case that the system was not working as effectively as it might have done.
In my respectful submission, in order to make progress on this matter, we need to have a system which works effectively. The Lord Chief Justice said that in his view the most appropriate course was that there should not be formal power in one place but actual power in another. The most appropriate circumstance and the only real solution is ultimately to give the Lord Chancellor, after the professional societies have proposed changes in the rules, the limited power to alter it if he thinks those rules are too lax or too restrictive in relation to rights of audience.
There are two safeguards in relation to that. First, it must be approved by an affirmative resolution of both Houses of Parliament. Although the noble and learned Lord, Lord Ackner, may regard that as of no importance at all, it is plainly the way our parliamentary system works, for better or for worse.
Secondly, the Lord Chancellor can propose changes to the rules of professional societies only to meet the objectives of the Courts and Legal Services Act 1990. If it goes beyond that—for example, towards the South African fears or the autocratic fears which have been referred to in our debate—then there is the power of the judges judicially to review such an exercise of the power. Therefore, with the greatest respect, I believe the position to be not at all as it has been described by the noble and learned Lord in the course of the debate and that a sensible solution has been reached.
1199 The second point put with an equal degree of vigour and venom was in relation to employed advocates. The most eloquent exposition of that was by the noble and learned Lord, Lord Hutchinson of Lullington.
§ Lord Falconer of Thoroton
My Lords, I apologise to the noble Lord. He basically put the proposition, supported by a number of other noble Lords, that one cannot have an employed advocate who is independent because he would owe duties to an employer as well as to the court. With the greatest respect, I do not accept that that is the position. As was pointed out, 97 per cent. of criminal cases in this country take place in the magistrates' courts. In the main, the prosecution is undertaken by members of the Crown Prosecution Service. Those cases are not only driving cases. They include important cases which may affect people's reputation and may lead to them going to prison. There is no suggestion that members of the Crown Prosecution Service are not able to deliver the standards of propriety as well as the standard of independence which would be required from an advocate.
I do not believe that it could be suggested for one moment that Dame Barbara Mills or Mr. David Calvert-Smith, the last two Directors of Public Prosecution, lost their ability to be independent from the moment they came to be employed by the Crown Prosecution Service. Equally, I do not believe that the position of, for example, Treasury counsel at the Old Bailey, who are plainly independent and plainly act in the best traditions of the Bar in relation to independence, could be said to have lost their independence because their sole financing comes from one source.
§ Lord Hutchinson of Lullington
My Lords, that is completely wrong. Treasury counsel are entitled to take on defence work, if they wish to, and to do other work, if they wish to. Therefore, it is not their sole source of income.
§ Lord Falconer of Thoroton
My Lords, the noble Lord is right to say that they are entitled to be that, but as a matter of practice they rarely do more than one other case a year, apart from the cases which they present at the Old Bailey. Nobody would suggest for one moment that the fact that they receive all their instructions from one source in any way undermines their independence.
The Attorney-General is an employed member of the Government, as is the Solicitor-General. Nobody for one moment would suggest that thereby they lose their independence. I do not accept the proposition that employment undermines one's independence. History shows us that one can be independent and fulfil the best traditions of the Bar, even though one may be employed.
§ Lord Thomas of Gresford
My Lords, does the noble and learned Lord not agree that the Attorney-General and the Solicitor-General are at the 1200 top of the tree? The problem is not perceived to be with the people who have made it. The concern is in relation to those who are on the way up.
§ Lord Falconer of Thoroton
My Lords, I would not regard the CPS in the magistrates' court as at the top of the tree. I do not regard its independence to be in any way defective as a result of the fact that its members are employed. There are significant numbers of chambers in this country in which senior members of the Bar undertake only prosecution work. I do not regard them as in any way having their independence compromised by that. With respect, the fear is exaggerated. From my experience of the Crown Prosecution Service when I was Solicitor-General, I can say that its standards of propriety and independence were extremely high.
As regards public defenders, the Bill proposes that the criminal element of the legal services commission will be able to employ directly people who in certain circumstances would be able to act as defence advocates for people in court. It is not intended that that circumstance should apply to the great majority of cases. It will more likely be filling gaps and, for example, providing defence services in the magistrates' court. I do not believe for one moment that that would lead to a compromise of justice. Nor do I believe that it would lead to "more negotiated" justice. We know from experience that defence and prosecution counsel are often in the same chambers. No one for one moment regards that as an indication that justice is compromised. Again, I believe that fear to be exaggerated.
It was suggested that there was a danger in exclusive contracting. It was put most eloquently by the noble Lord, Lord Phillips of Sudbury, that exclusive contracting meant the new arrangement involved one firm of solicitors for each geographical area. Perhaps I may make it absolutely clear that that is not what was intended. Exclusive contracting means that the only people from whom one can obtain legally-aided services are those who have an "exclusive" contract. But it is not exclusive in the sense of being one for each area. It means that the base for legal aid practitioners will be exclusively those who have a contract. We should have made that clearer at an earlier stage, but it meets the essential point which the noble Lord, Lord Phillips of Sudbury, was making, backed up by the noble Lord, Lord Hunt of the Wirral. I hope that I can reassure the noble Lord that it is not the intention that there should be only one firm of solicitors in the area. What is intended is that in so far as it is possible there should be a choice in as many areas as possible throughout the country.
§ Lord Phillips of Sudbury
My Lords, is it not the case that according to the figures produced by the Legal Aid Board there has been a remarkable reduction in the number of solicitors firms which will in future be available to undertake legal aid work? If the figures I mentioned earlier are remotely correct, will that not mean that in some parts of the country there will be only one firm available?
§ Lord Falconer of Thoroton
My Lords, there will be a reduction in the number of firms which undertake 1201 legal work. However, one should not misread the figures. A large number of the firms which will drop out undertake only a small amount of legal aid work at present. I believe that 11,000 firms were referred to. Of those, only 2,000 or 3,000 undertake the great bulk of legal aid work in this country. The remaining 8,000 do some but only a small amount. A reduction in the number of those firms will not be taking that much capacity out of the legal aid system in this country.
I cannot guarantee that there will not be some parts of the country where only one firm has a contract in relation to legal aid. I believe that such firms will be few and far between. It will probably be the result of the area being geographically remote rather than anything else. Therefore, with respect to the noble Lords, Lord Phillips and Lord Hunt, although the point is well made and well taken, the position is not exactly as they described it.
The point was made that there was too much focus on cost cutting and too little focus on quality. The provisions of the Bill make it clear that one of the legal services commission's focuses must be on quality. It is there as an obligation for it to consider. One can do no more in relation to it than that.
We are keen to ensure that quality is maintained. That would be achieved not just by the obligation on the legal services commission but also by the fact that firms which receive a legal aid contract will have to satisfy certain quality conditions, those conditions relating not only to management and process but also to legal ability.
In a number of respects that is quite a good thing. It will ensure, for example, that when members of the public have a problem raising a medical negligence issue they will know to what sort of firm they should go. Many firms could be confronted, quite legitimately, with such a case and, although not experienced enough to deal with it, may not be willing to pass it on. Under the new arrangements, it would have to be dealt with by a firm that was authorised to carry out legal aid work.
There are many more points that I could deal with, but those are the main ones raised in the debate. We shall have to come back to many other points in Committee. I believe that the Bill makes a genuine contribution to making justice more accessible to the general public than it is at the moment. It achieves that by giving the Lord Chancellor, the Legal Aid Board and the legal services commission power to direct more effectively the legal aid resources where they are needed most, which is not the position at the moment. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.