HL Deb 16 February 1999 vol 597 cc551-71

3.7 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 13 [Advice and assistance]:

Lord Thomas of Gresford moved Amendment No. 97: Page 9, line 27, leave out from beginning to ("or").

The noble Lord said: My Lords, these amendments are grouped with others. Their purpose is to remove from the Bill the provisions which grant to the legal services commission the ability to provide advice, assistance and representation through salaried lawyers in the commission's own employment within the criminal defence service. I find it somewhat ironic that after a full day on Report on the community legal service in which the virtues of competition, conditional fee agreements, exclusive contracted services, lawyers in civil actions taking a risk like any other business—all the virtues of privatisation—were lauded to the skies, we now turn, in considering the criminal defence service, to the virtues of nationalisation—replacing the independence of individual lawyers chosen by the client in competition with others and answerable only to the client and to the court—with a salaried employee of the state assigned to defend a person in jeopardy of his liberty.

On the third day of the Committee stage we spent two hours discussing the matter in terms of high principle—not least in the contributions of the noble Baronesses, Lady Mallalieu and Lady Kennedy, and my noble friend Lord Hutchinson. I myself relied on the stirring words of the Chief Justice of Australia, the honourable Sir Gerard Brennan. The reply of the noble and learned Lord the Lord Chancellor was: first, that it was an insult to the ethics of a group of people—which is not yet in existence—to assert that they could not be independent; secondly, that the choice between the independent practitioner and the salaried employee will be maintained; thirdly, that there might be a gap in the provision which a salaried defender service could fill; and, finally, that, having regard to his budget, salaried defenders might afford a useful benchmark against private practitioners in terms of quality and cost—that is to say, that his proposals will pull down the cost of defence services. In none of those matters referred to by the noble and learned Lord do I find the argument of principle fully addressed. We spent some two hours on that topic.

I now turn to the practical aspects of the proposal to see whether it will work. Article 6 the European convention guarantees the right to a fair trial in both civil and criminal proceedings. The concept of a fair trial contains many elements. At the core is the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Also contained in Article 6 is the right to defend oneself in person or through legal assistance, and to call witnesses.

However, as was said by the Supreme Court of the United States, mere access to the courthouse doors does not by itself assure the proper functioning of the adversary process. That court said that a criminal trial is fundamentally unfair if the state proceeds against a defendant without making certain that he has access to the raw materials integral to the building of an effective defence. Thus the Supreme Court has often reaffirmed that fundamental fairness entitles legally aided defendants to an adequate opportunity to present their claims fairly within the adversary system. To implement this principle the Supreme Court has focused on identifying the basic tools of an adequate defence or appeal and has required that such tools be provided to those defendants who cannot afford to pay for them.

The important lesson that one learns from the Supreme Court of the United States is that a state defence service in this country must provide not merely the advocate to appear in court but also the back-up team. The issue that has to be addressed is the cost to the public purse of the administration and the expense of the whole team. At present, wherever in the country a person is arrested there is available in every police station a solicitor of his own choosing to advise him. That solicitor will have his own back-up staff of legal executives and secretarial and other assistance in his own office. He will also have the physical resources to carry out the necessary investigations, the interviewing of witnesses, the instruction of experts—pathologists, psychiatrists, fingerprint experts and scientists specialising in fibre evidence or DNA and so forth. He must obtain the sanction of the court before he can incur such expense, whether from the court itself, the administrative staff or the Crown Court in a serious case. The independent solicitor, if he so desires, has the choice of independent counsel to act for his client in an appropriate case. He can match the level and breadth of experience of the advocate to the case before him.

A nationalised defence service will require the setting up of a central administrative office and regional offices. If the footprint of that service is to extend to the whole of England and Wales and is to cover every police station where interrogation may take place; every magistrates' court and Crown Court, clearly those regional offices of the state defence service will be numerous. If the CPS is any guide, it will require an office for each Crown Court area with the equivalent of the proposed CPS district attorney to oversee the region.

I always return to my home territory of North Wales in order to see how things work in a rural area. In North Wales the CPS employs a back-up team of about 1.5 personnel for every qualified advocate. The whole of the investigative arm of the CPS is covered by the North Wales police. They not only provide the witnesses, but they also ensure that they get to court. I expect that a state criminal defence service will require a ratio of three staff to one advocate in order to provide a comprehensive service.

Is it to be supposed for a moment that with this nationwide and expensive framework in place, with a central administrative office, regional and Crown Court offices, an accused person will for long be able to say "No, I do not want that service. I want my own solicitor to act"? If choice is permitted to continue, then the investment of so much national resources in the criminal defence service in providing the back-up team and the support staff is an enormous commercial gamble. If all defendants choose not to use the state defence service it will have nothing to do and the whole framework will be useless.

What about the workload of such a service? The American Bar Association states in Standards for Criminal Justice published in 1980, Neither defender organizations nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations. Whenever defender organizations or assigned counsel determine, in the exercise of their best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the defender organizations or assigned counsel must take such steps as may be appropriate to reduce their pending or projected workloads". The American Bar Association has said that there can be no overloading of a criminal defence service and that only an appropriate amount of work can be undertaken. If the criminal defence service is like the CPS in this country, it will be a unionised body with fixed hours (nine to five), with a salaried employee who, unlike the independent barrister or solicitor, has no need to move on to the next case to improve his own income. He will be entitled—and no doubt will do so—to prepare his cases not in the evenings or at weekends, as we all do, but during days set aside out of court. In addition, he will require time for training and for updating, time that independent practitioners take out of their daily routine.

The first casualty of such a system in order to save costs will be independent specialist reports. It is so tempting and attractive to ask, "If the pathologist who is instructed by the police comes to a professional conclusion and he is a witness who is not there as a party to the cause but to assist the court, why should the defence have a pathologist? Why should there he more than one scientist or one psychiatrist or one expert in finger printing or in DNA?" Yet when one considers the history of miscarriages of justice in this country, one sees it is precisely in those areas that miscarriages arise due to scientific inadequacies. One thinks of the Judith Ward case and the Birmingham Six case. I know of a man who was imprisoned for 14 years clue to a miscarriage of justice when it was ultimately discovered that the scientist who had been responsible for his conviction had faked his findings.

The noble and learned Lord, Lord Archer of Sandwell, referred to the report of Messrs. McConville and Mirsky in 1980 and queried how far things had changed since then in the United States. The Department of Justice in the United States produced reports in 1986 which covered 777 defender programmes in all of the 50 states of the Union and involved public defender systems, contract lawyers and assigned counsel. Revealingly, one county in Arizona which awarded contracts to the lowest bidder was found to violate the 5th and 6th Amendments of the United States Constitution because it did not take into account the time an attorney spent in representing his clients.

Importantly, the contract system in Arizona did not provide for support costs such as investigators. It did not consider the competence or experience level of attorneys bidding on contracts, nor did it consider the complexity or seriousness of the cases being bid on. The slate simply let out contracts to the lowest kidder. The changes in the criminal justice system in the United States have now caused the Department of Justice to undertake an entirely new comprehensive national survey of indigent defence systems in order to evaluate and compare the effectiveness of services offered. One of the unsolved problems is the question of co-defendants whose interests collide; for example, where one seeks to do a deal and claim immunity in return for giving evidence against another. It simply is not possible for the same organisation to act for both defendants. No such research, consideration or consultation backs these proposals.

In the White Paper The Machinery of Justice there is reference to a single study that was carried out by an individual in 1997. There is nothing more. In my view these proposals are simply pulled out of the air as a good, money-saving wheeze. Much is made of the cost of defence legal aid. It is said that 1 per cent. takes 40 per cent. of the criminal legal aid funds in the Crown Court. That is not surprising; it is the complex, lengthy and serious cases which consume the largest resources of skill, both in advocacy and particularly in expert support services. In fact the Bar Council has agreed in most cases to accept graduated fees. That system is working well, although its effects have not been evaluated. But now these proposals involve the costs of a nationwide administrative organisation, coupled with complete uncertainty as to the extent to which its services will be chosen by the consumer—the arrested, accused defendant. Is that value for money? I do not think so. I beg to move.

Lord Clinton-Davis

My Lords, I disagree with the fundamental premise of the noble Lord's argument which has just been adduced, and I have said so before. In providing a complementary service through the private side of the profession, I believe that one should encourage the provision of a salaried service. Moreover, I think that the noble Lord grossly exaggerated the draconian effects that the introduction of such a service would have. In fact, I do not believe that would be the case at all. I believe that it could be an important process in the development of someone's professional career. I do not believe that the experience in Arizona necessarily disqualifies the introduction of this proposition in this country.

It is, with respect, something of a slur on those engaged in the Crown Prosecution Service, for example, to imply—this was not said expressly—that they will not devote themselves assiduously to engaging in the task that is before them. There is not a shred of evidence to suggest that they are simply a nine-to-five operation. There is a considerable measure of pride in the work that they do, even if perhaps they are not rewarded for going outside the usual hours of service that are expected of them, just as in the private side of the profession lawyers take pride in their work and they are not necessarily compensated for every minute that they are engaged in the work that they undertake.

When we addressed these issues at the Committee stage my noble and learned friend said that he had no intention of providing the majority of services through the salaried service. That is an assurance that the House should welcome, as indeed it should welcome the amendment tabled by my noble and learned friend that would certainly remove the suggestion that there would be some compelling reason for an individual to have to use a member of the salaried service. That is how I understand the position although my noble and learned friend will, of course, summarise the argument for himself. As I understand it, that should be a satisfactory assurance for the House.

In approaching this issue, I think it is important to ensure that the service is provided with sufficient resources to protect the rights of the individual. There is no suggestion that that would not be the case, although it is again one of the arguments that is implied by the noble Lord. It is important in this context to ensure that there is a greater parity of representation—there cannot be complete parity of representation—between the defence and the prosecution. I urge the noble Lord not to pursue this argument because, as I have indicated, I think it could be interpreted unfortunately by those who are currently engaged in the prosecution service and who, by and large—of course, mistakes are made—do their work well.

Lord Carlisle of Bucklow

My Lords, not having taken part in the Committee stage, one of the disciplines that one imposes upon oneself is that one is required to read it. Having done so, I am happy to say that I do not propose to repeat the arguments so eloquently made by the noble Lords, Lord Hutchinson and Lord Thomas, and by the noble and learned Lord, Lord Ackner, against the whole principle of the salaried defender. Having read those speeches one is in the happy position of being in the situation of the third member of the Court of Appeal who is able to say, "I agree and have nothing—or, in this case, little—to add".

I wish to ask one or two questions. I make it clear that I align myself with those who are opposed in principle to this proposal. The noble and learned Lord the Lord Chancellor was good enough to accept at the end of one of his speeches that there was a distinction in principle between those who favoured a salaried defence service and those who did not. I make it clear that I put myself with those who are opposed to a salaried defence or salaried prosecution service. One of the great strengths of the English criminal Bars is that lawyers both defend and prosecute. Despite the words of the noble Lord, Lord Clinton-Davis, a salaried defence and prosecution service is inevitably bound in the long run to harm the independence of those services.

What is the purpose, as the noble and learned Lord the Lord Chancellor sees it at this time, of the criminal public defender? In particular, what is the need for the introduction so quickly in the Bill? On any view, it would have been accepted by all sides of the House that we are proposing a major, fundamental change in criminal representation in this country. We know that it first saw the light of day on the face of the Bill without any form of prior consultation with the Law Society or the Bar Council. What is the hurry for its implementation?

In Committee the noble and learned Lord the Lord Chancellor made it clear that he did not envisage that it would be greatly used. He said: I stress that it is not our intention that salaried defenders should supplant the independent Bar or, indeed, the solicitors' profession. That will never happen. We see value in the commission having power to introduce into the system a salaried element, subject to appropriate ethical safeguards. But it will always be a mixed system in which the salaried element will by far be the smaller part".—[Official Report, 26/1/99; col. 916.] What part does the noble and learned Lord the Lord Chancellor envisage the salaried defender will play? What is the salaried defender able to provide which the duty solicitor system at the moment cannot adequately provide? I am driven to the conclusion that the purpose must be, and can only be, the intention to try and save money. Let me make it clear that I fully accept the importance of that aim; I fully accept what the noble and learned Lord the Lord Chancellor has said on many occasions; namely, that one must be concerned about the rapidly increasing costs of criminal legal aid. Where I part company from him is in the criticism that he goes on to make of my colleagues at the criminal Bar without regard to the fact that almost all of those fees come through graduated fees agreed with his department.

I accept that there is a concern about the rapid increase in the cost of criminal legal aid; I accept that we should have value for money. But value for money is not the same thing as saying, "Let us provide the defence as cheaply as we possibly can". It seems to me that the only intention behind the creation, out of the blue, of the public defender—without adequate explanation of his role; without adequate consultation about the effect that it will have on the future of the legal profession in this country—is merely a demand to see how cheaply you can get the service done. I hope that when the noble and learned Lord the Lord Chancellor comes to reply to the debate, he will explain how he envisages that role, and why he believes it is necessary to bring it in now rather than in the course of separate legislation, as the noble Baroness, Lady Kennedy of The Shaws, suggested.

Baroness Mallalieu

My Lords, those parts of Clauses 13 and 14 to which these amendments relate continue to trouble many of us who practice at the Bar, some of whom are not able to be in their places today, in particular the noble Baronesses, Lady Scotland and Lady Kennedy of The Shaws.

I hope that the noble and learned Lord the Lord Chancellor will accept that that is not because our brains have atrophied into a backward-looking trade union mindset as a result of a surfeit of feather-bedding and rich pickings from the regal legal aid system—to use phrases used earlier at Committee stage—but rather because we have worked, with not a little pride, under a system which was largely shaped by those great reforming Labour Lord Chancellor's, the late Lord Gardiner and Lord Elwyn-Jones. Many of us are deeply fearful that these particular proposals, whatever the financial necessities that drive them, will result in a system which serves the public less well in the future.

Salaried defenders are not currently necessary. At present there are ample independent practitioners of the requisite skill ready and willing to carry out the workload under legal aid. I accept that that could change after the passage of the Bill. Firms of solicitors which currently carry out an element of legal aid work—often out of public spirit and at some commercial disadvantage to themselves—may no longer be prepared to do so once it becomes necessary for them to apply for franchises. In those circumstances, sadly, some areas could well find that there are insufficient legal aid practitioners available, particularly in specialist fields. But if and when such a situation arises, that surely would be the time for a proper debate based on actual need for these provisions, followed possibly by legislation to meet that need.

The underlying principle that causes many of us great concern continues—and continues despite the assurances which the noble and learned Lord the Lord Chancellor has already given. The state which makes the accusation and conducts the prosecution must neither control the defence nor appear to do so. The independent defender is the main safeguard which ensures that that does not happen. The public is rightly concerned about miscarriages of justice. Time and time again it has been independent practitioners—both solicitors and barristers—who, long after they have ceased to be paid to represent an accused, have continued to work and campaign at their own expense to right such wrongs, sometimes over many years.

Accepting what the noble Lord, Lord Clinton-Davis, has said about those who currently work within the Crown Prosecution Service, many of us worry whether the salaried defender will be permitted to devote the time of his employers to pursuing what were sometimes wrongly seen by others as lost causes.

I cannot support the principle behind this part of the Bill, quite simply because I do not think that it will improve access to justice; rather the reverse. I hope that the noble and learned Lord the Lord Chancellor understands the strength of feeling and, above all, the dismay which is widespread in my branch of the profession and beyond about these particular aspects of the Bill.

I hope that the noble and learned Lord will also understand that I and others are grateful to him for giving some way, and going some way, to meet concerns about the lack of choice for an accused which was raised by all sides of the House in Committee stage. In particular, Amendment No. 111—to which we will come soon—is helpful, if partial, reassurance. I hope that the noble and learned Lord the Lord Chancellor will be able to give a rather fuller reassurance before the Bill leaves your Lordships' House—namely, that every accused person will, unless it is wholly impractical, be permitted to choose whether to trust his defence to an independent practitioner rather than to a salaried defender allotted to him. Unless an accused person can do so, I am fearful that the role of the independent defender will be steadily undermined, and the underlying principle of criminal legal aid—that the very poorest should also have access to the very best—will, over time, become a thing of the past.

Lord Hutchinson of Lullington

My Lords, one of the problems about the public defender is that, this being an Access to Justice Bill, all those who speak are liable to be lawyers who are inevitably involved in the matter. That makes it very difficult for those who are riot lawyers to separate the wheat from the chaff. Because of the way the Lord Chancellor has replied to criticisms from his fellow lawyers—it has come to the fact, as the noble Baroness has just said, that any argument put forward is seen as special pleading—one has to start one's observations by showing that that is not one's attitude.

I am bound to point out to the noble and learned Lord that when, more than 20 years ago, my noble friend Lord Wigoder and I formed the Criminal Bar Association we did so in order to create a radical reforming body within criminal practitioners. That association continues and is flourishing. Indeed, I think I can say without exaggeration that it has played an influential part in all reforms to the criminal law in the past 20 years. My noble friend Lord Phillips has done very much the same on the side of the solicitors' branch. I really do think that we on these Benches need no lessons on reforming zeal in relation to the criminal law.

I should like to bring this matter nearer home. Anyone and any Member of this House may find himself in a police station. He may kill someone with his car. He may be wrongly identified in a public lavatory or at a demonstration. He may carry goods out of a shop and be charged with stealing. There are a hundred other ways in which any member of the public may find himself in a police station. When he gets there the routine is that he will be put in a cell, to await his production before the duty sergeant, in order to cool off or possibly to make him more amenable to making a statement.

What does that person want when he is in that cell, incommunicado, alone, frightened or indignant? He wants someone from outside; someone who will be on his side, with time to listen, to act, to restore his personal liberty and personal self-respect, and to understand his predicament. He does not want a friendly WPC, or a probation officer, or a welfare officer. He wants someone from outside. In other words, he wants an independent person, an independent lawyer. When he is awaiting trial he wants someone—this was referred to in Committee by the noble Baroness, Lady Kennedy—who is prepared to go the extra mile. In saying that, the noble Baroness was disparagingly accused of casting herself in a heroic role. It has nothing to do with heroism. It happens to be the essence of advocacy. Advocacy is not oratory, as many lawyers find in this and in another place. That is the essence of advocacy; to pursue someone's case, however long, however boring and however difficult it may be, and to establish his innocence or the probability of his innocence.

In Committee the noble Baroness, Lady Crawley, made a moderate and most thoughtful speech about this matter. As a non-lawyer, she felt that the part-time salaried advocate could provide a benchmark to measure the quality and cost-effectiveness of the advocate. I would say to the noble Baroness and to other Members of the House who think that there is something in that suggestion that it is simply not like that. Would the noble Baroness send a part-time surgeon into the operating theatre to monitor and see how the work was being done? Would she send a part-time pilot onto the flight deck to see whether the pilot's work was being done properly? Of course, any fool can do this job more cheaply, spend less time on it and cut every corner, but who is measuring the quality assurance; who is the master in that situation? It is the defendant who gives the instructions, but is the master going to be the Treasury, or the CDS or the LSC?

When it comes to trial, what does the person want when facing up to the accusation? Let us suppose that the police have put up a false case. Let us suppose that they have put in a false confession. Let us suppose that they have had a false identification or have planted drugs in the person's car, as, alas, happens only too often. What the defendant wants is, first, an independent judge; secondly, a jury randomly selected; thirdly, a fair and detached prosecutor; and, lastly, a fiercely independent advocate. All those players can be inefficient and incompetent, as any other professional person can be, but they form the indispensable structure which is there to resist the huge weight of authority—the lies, the corruption, the incompetence, the zealotry or even the simple human error of a person's accusers.

Governments have always sought to tamper with this structure—these awkward entities. It is said that judges are self-important and seek to control politicians. It is said that juries can be perverse, expensive and slow and that people's ability to go before a jury should be reduced in order to save money. It is said that juries are not intelligent enough to try difficult cases. In this House it is our job to be vigilant, to perceive the dangers that lie ahead and to stop the Executive when it goes too far. When a Minister, given powers, assures noble Lords that they will not be used, the warning bells ring around the Chamber and, I may say, have always done so in my time in this House.

This part-time lawyer will only fill in gaps and will never do difficult cases. Who is he? We have never been told. Where will his desk be? We have never been told. What are his job prospects? We have never been told. What will his experience be? We have never been told. A salaried defender service can be brought into existence, as the noble and learned Lord agreed, under this Bill. That is the true situation. As the noble Baroness, Lady Mallalieu, pointed out, the frank wording in paragraph 99 of the Explanatory Notes says precisely that: The intention is that, in time, the Commission will provide all, or nearly all, representation exclusively through contracted or salaried defenders, whom it will require to meet defined quality standards". There you have it. I ask the House: is that what the public wants; is that what the accused person wants? Can we imagine any independent judiciary drawn from the Crown Prosecution Service and the criminal defence service? One has only to ask that question to see the mischief which could come about.

Lord Clinton-Davis

My Lords, I am obliged to the noble Lord for giving way. I well remember during my many years of doing criminal work as a solicitor that many stipendiary magistrates were drawn almost exclusively from that class of barrister who practised as a prosecutor in criminal cases. The same applied to many judges in what used to be the Quarter Sessions and is now the Crown Court. What is the difference?

Lord Hutchinson of Lullington

My Lords, the noble Lord refers to the barrister who prosecutes. Every barrister can prosecute or defend and has a practice which may do more prosecuting or more defending. Every barrister to whom the noble Lord referred was a free member of the Bar who could take briefs from any area he wished. The noble Lord knows perfectly well that when Treasury counsel are prosecuting at the Central Criminal Court they may leave that area, take on other work and become judges or defending barristers, whereas someone who is employed in a government office could never be in that situation.

The advocate is repeatedly referred to as the "quality assured provider", the "contactual provider" or the "salaried defender". No longer will we refer to the noble and learned Lord, Lord Falconer QC; it will be the noble and learned Lord, Lord Falconer QAP, or some other such phrase.

That is the language of bureaucracy, of the Civil Service, of control, of intellectual isolation; it is a world of codes and guidelines, those fig-leaves of control. I must tell the Lord Chancellor that from my simple inquiries at the Criminal Bar the young men and women feel at this time that those at the top of the profession are losing touch with those at the coal-face. As has already been pointed out, this idea was inserted into the Bill without any consultation with either branch of the profession or indeed with the public. I suggest that it is a dangerous concept and should be removed from the Bill.

Baroness Crawley

My Lords, the noble Lord, Lord Hutchinson, hopes that any non-lawyer can separate the wheat from the chaff. As that non-lawyer I hope that I do not disappoint him.

First, I question the assumption of the noble Lord, Lord Hutchinson, that a salaried defender service would somehow be a part-time service. He colourfully illustrated his point asking whether 1, as a non-lawyer, would want a part-time pilot on the flight deck. As a current Member of the European Parliament who travels a great deal by air, I certainly would not want a part-time pilot on the flight deck, and I would not be defending a salaried defender service if I felt that that was an accurate way of describing it.

I support the arguments put so clearly by my noble friend Lord Clinton-Davis. These amendments reflect an unnecessary anxiety in parts of your Lordships' House about the prospects of salaried defenders. As far as I can see, the concern is based on rather emotive assumptions and some, though not all, questionable anecdotal information about a salaried defender service totally lacking in independence and overflowing with second-rate practitioners. Yet, from what we know of experience around the world, the picture of the quality of salaried defenders is quite mixed with some countries coming off much better than others. Recent 1997–98 studies referred to in the White Paper are attached to the Bill.

But even that mixed picture does not need to reflect our own proposed new scheme which, from the start, will be based on exacting quality control. Anxiety is also based on good old-fashioned resistance to change which, in some ways, is to be expected. Change is never easy, particularly where traditions and ways of working have a long and distinguished pedigree. But such resistance is no real justification for not even contemplating the introduction of a choice between salaried defenders and private practitioners. The Lord Chancellor made it perfectly plain on several occasions during the passage of this Bill that it is not calling for a summary take-over by a salaried defenders' service. As my noble friend Lord Clinton-Davis said, it is seeking a complementary competitive choice for clients.

There are opportunities here that should not be missed when we contemplate the prospect of our home-grown salaried defenders; opportunities of greater career flexibility within the profession and opportunities of establishing—I repeat—quality bench-marking for the profession. There are also opportunities for a salaried defenders' service to be a useful and invigorating spur to competition within the profession and an opportunity to fill current gaps in access to and availability of practitioners nationwide. As I see them, the opportunities far outweigh the concerns raised in response to this part of the Bill.

Lord Campbell of Alloway

My Lords, with respect to the noble Baroness, the concern is not one that manifests itself purely in your Lordships' House. It is a concern that manifests itself in both branches of the profession and in particular on the circuits throughout the country. It is not a question of resistance to change; it is a question of the quality of the service and maintaining that quality so that, as has been put so eloquently—I shall not repeat it—the citizen who is stuck in a police cell has at least the opportunity to choose someone who is independent to look after him.

It is said that that type of independent representation will not be excluded. It may not be excluded by statute, but if we ride two systems in tandem, it may well be the case—as it is genuinely feared to be—that the duty solicitors will not be available to provide the service or the choice for the man in the cell.

I do not understand what is meant by the phrase, "quality bench-marking for the profession". Certainly the Bar maintains its quality in its own way, and has done so with conspicuous success. From the start of one's time in the circuit one learns the ropes through the discipline that is imposed by the head of chambers and the advice and discipline imposed by the judges and by the general traditions under which we operate. I do riot understand how that can conceivably be applied to people who work under contract. Contracted men are subject possibly to union rules, to government control, to regulation by a commission, or to retirement, They are subject to this and subject to that, but they are never free independent lawyers. I support this amendment. I can see no justification for the introduction of a system of state defenders.

4 p.m.

Lord Hacking

My Lords, it is important before we conclude this debate to look at exactly what these amendments seek to achieve. Amendments Nos. 97, 98 and 104 tabled by the noble Lord, Lord Thomas of Gresford, and Amendment No. 103 do no less and no more than seek to remove altogether the Criminal Defence Service. Indeed, the noble Lord even seeks, in Amendment No. 97, to remove any right of the Criminal Defence Service to give advice.

Lord Thomas of Gresford

My Lords, that is not the purpose of the amendments. They relate to people who are employed, as the noble Lord will see if he reads them a little more closely.

Lord Hacking

My Lords, I can only go by the form of the amendments tabled by the noble Lord, and he specifically excludes the provision of advice as well as assistance in his Amendment No. 97.

The noble Lord, Lord Kingsland, has not yet spoken to Amendment No. 102. That is a more moderate amendment. If I understand it correctly, it seeks to remove the operation of the Criminal Defence Service in the higher courts.

Lord Kingsland

My Lords, Amendment No. 102 has nothing to do with me. My amendment is Amendment No. 103, which does not seek to remove the Criminal Defence Service. It simply seeks to limit its representational powers to magistrates' courts.

Lord Hacking

My Lords, I am grateful for that correction. My reference is to Amendment No. 103, which effectively seeks to remove representation by the Criminal Defence Service in the higher courts—which is of course a more moderate amendment.

There have been some very good speeches so far in this debate. I always listen with great respect to the noble Lord, Lord Carlisle, and to my noble friend Lady Mallalieu. Indeed, the noble Lord, Lord Carlisle, and I stood almost alone among the great political parties in debates on the Crime (Sentences) Bill in our firm opposition to mandatory sentencing and other matters. Similarly, in debates in this House, particularly concerning penal and social affairs, I am almost always in entire agreement with my noble friend Lady Mallalieu. I assure her that I (I do not speak for other Members of the House) do not consider that she is of addled mind, that she is a backwards looking lady or a feather-bedder, to refer to the three expressions that she used in her remarks.

The noble Lord, Lord Carlisle, was therefore right to identify one of the virtues of the present system, which is true not only of barristers but of solicitors—that we are open to representing both sides. I believe that that is a virtue and the noble Lord was right to draw attention to it. The noble Baroness, Lady Mallalieu, was right to draw attention to an essential fact in the bringing in of this new scheme; namely, to quote her words, that the state must not control the defender.

The reality is that the present system does not always work very well. We have the duty solicitor system, but sometimes very young, immature lawyers are required to do that duty and sometimes advice is in the hands of a novice. The barrister defender system in the private sector does not always go very well. For example, there is an enormous proportion of last-minute returns of brief, and barristers often have to appear in court without any proper opportunity to read their papers before the case has started.

Therefore, my noble and learned friend the Lord Chancellor is bringing forward this total review of both the criminal and the civil side, setting up the criminal defence service and bringing it into use on an "as need" basis. That is all that he is proposing. He is not proposing, as my noble friend Lord Clinton-Davis said, to abolish altogether the private defender in the system. Indeed, the system will continue to rely substantially on the independent private practitioner.

There are rural areas where the accused is not presently well served. It is a long time since I appeared as a member of the Bar at the Bodmin Crown Court in what was then the Bodmin Quarter Sessions. However, it is my recollection that amid all the dispute about rights of audience there was a recognition in certain areas in Cornwall and Devon that solicitors should have full rights of audience to represent defendants in that area. That was before the Courts and Legal Services Act came into force. The reason was very simple: there was a shortage of members of the Bar to serve those areas. That is not to criticise the Bar; it is to recognise that there are certain areas where further assistance needs to be provided to the accused in the defence services. That is all that my nobble and learned friend is proposing.

I must say to the noble Lord, Lord Thomas of Gresford, that there is not a shred of evidence that the proposed new service will be a 9 a. m. to 5 p.m. service. In so far as that comment is based upon the work of the CPS, it is a disrespectful one.

This House can be very conservative, not only politically in its contents, but also in its judgment over innovation. The amendment that has been pressed upon your Lordships during this debate seeks to prevent us moving forward, and to prevent us even having an alternative to the present system for the defence of the accused. At the end of the day, we are here to see that the defence is well represented.

As to Amendment No. 103, tabled by the noble Lord, Lord Kingsland, I shall make just one comment. It seems to me that it is one of the advantages of the new system that, once a defence is in the hands of a member of the Criminal Defence Service, it would be thoroughly sensible, particularly, for example, in the case of a guilty plea, if the salaried defender took the case all the way through to the Crown Court. It would merely blunt efficiency if he were to be cut off from representation at the magistrates' level. For all of the reasons that I have attempted to advance, I hope that my noble and learned friend will robustly reject these amendments.

4.15 p.m.

The Lord Chancellor

My Lords, the amendments in this group seek to remove completely, or, in the case of the noble Lord, Lord Kingsland, restrict, the ability of the legal services commission to provide services by employing salaried lawyers.

The purpose of the Criminal Defence Service is to ensure that people subject to criminal investigations and proceedings receive the advice, assistance and representation that the interests of justice require. The Bill provides flexible powers to achieve that in whatever ways will secure the best value for money, consistent with the interests of justice. One of those powers is the power for the legal services commission to provide some advice, assistance and representation through its own employees. It is that modest power that these amendments seek to strike down or restrict.

I have repeatedly made it clear that it is not the Government's intention to move to a fully-employed public defender service or anything like it. But that does not deter the noble Lord, Lord Thomas of Gresford, from referring to a nationalised defence service. At best, it is a figment of his imagination; at worst, it is a scare story to buttress a bad argument. To make that clearer still, I have tabled Amendment No. 111, which we shall discuss later, to preclude regulations which could prescribe circumstances in which people may only choose a salaried defender. I repeat that people will always have a choice. Talk of assigned lawyers is therefore equally inconsistent with what is proposed.

The noble Lord, Lord Hutchinson of Lullington, said, with a sense of discovery—he used the words, "There you have it"—that what was intended was that all, or almost all, criminal defence services would over time be provided through contracted or salaried lawyers. What he omitted to note was that contracted lawyers are lawyers from the independent legal profession. Salaried lawyers would be the lawyers employed by the criminal defence service. It is intended that there should always he mixed provision and a choice.

Some disparaging things have been said about the lawyers who would work for the criminal defence service, which has been described as prospectively a part-time service, as if lawyers in public service would not be as committed as lawyers in independent practice. I can assure noble Lords that the dedicated Civil Servants in my own private office, who work long hours which in many other walks of life would be regarded as unsocial, do so out of a strong sense of public service.

Noble Lords

Hear. Hear!

4.15 p.m.

The Lord Chancellor

My Lords, I have no reason to suppose that committed, salaried defenders would show anything other than dedication to public service.

I firmly believe that a salaried element has an important role to play in the overall scheme. First, it can step into gaps which cannot be filled adequately by the private profession alone. An example might be a rural area with relatively few solicitors' firms undertaking criminal work. The provision of a 24-hour duty solicitor service at the police stations in that area might be too great a burden for those firms to bear alone. At present, the result would probably be excessive use of telephone advice rather than attendance and over-reliance on non-qualified representatives; in other words, the quality of the service would suffer. In future, the commission's salaried employees could share the provision of 24-hour coverage with the local firms.

Secondly, it will provide the individual with a wider choice. It is my belief that salaried defenders will be seen as providing at least as good a service as private practitioners and that they will prove to be popular. In some areas there may be a limited number of firms which meet the quality standards for a contract. A salaried defender will therefore provide additional choice.

Thirdly, a mixed system of salaried and private providers will enable the commission to benchmark the costs and quality of each against the other. That spur of competition for salaried and private defenders will help promote value for money. It is my belief—and there are successful systems overseas which support that belief—that a mixed system of private and directly-employed lawyers can provide better value for money than either a fully private or a fully employed system. I make no apology whatever to the noble Lord, Lord Carlisle, for seeking better value for money.

Last Thursday the Liberal Democrat Benches pressed an amendment—not their own—that was concerned with the risk that increases in the cost of criminal defence services might reduce the resources available for the community legal service. The amendment was, rightly, rejected by your Lordships. But the underlying concern is real enough: indeed, I have expressed it repeatedly myself. The answer is to ensure that we can secure the best value for money for criminal defence services consistent with the interests of justice. Many of your Lordships may therefore think that it beggars belief to find that those same Liberal Democrat Benches now seek to strike down one of the powers which will help achieve value for money.

What are the arguments against this proposal? I wonder that it has not yet been said that, like Swift, I am proposing to reduce the private Bar to such penury that its members will have to eat their children. No, the objections reduce, I think, to two. First, it is said that salaried defenders will be second-rate, under-funded and overworked. That charge is developed by anecdote, not by evidence. The many successful public defender schemes in other countries are not cited. Secondly, it is said that defenders employed by the state will be insufficiently independent.

My proposals are underpinned by a great deal of research into public defender schemes abroad. The picture is mixed. There are some very good public defender schemes and some poor ones. It has been said that salaried defenders will be overburdened by heavy caseloads. Heavy caseloads and insufficient funding go hand in hand. Caseload limits are unnecessary where services are appropriately resoursed. I accept that adequate funding is essential; but that must be true also of schemes that purchase services from the private sector. Most of the horror stories relate to public defender schemes in the United States of America. These are organised at state or, more commonly, county or court district level. They are not overseen by any federal agency nor underpinned by the kind of statutory framework proposed in the Bill. I am determined to ensure that the criminal defence service, in both its private and directly employed elements, will be adequately funded to provide the quality services that suspects and defendants undoubtedly require.

We shall, of course, seek to draw only on the best examples from other countries when establishing salaried defenders in England and Wales. We shall also be taking account of the Scottish pilot. Salaried defenders will be introduced in a measured way, involving consultation and piloting to establish how and where salaried defenders can be deployed to best effect.

Nor is there any reason to believe that only the second-rate will be willing to work as salaried defenders. Salaried employment as a criminal defender could prove an attractive proposition for many

committed and public-spirited lawyers. Reference has been made to the hard-pressed barrister, with no pension or guaranteed income. Why should he or she not take advantage of this new career opportunity? The increased rights of audience proposed in Part III of the Bill should lead to greater career flexibility between salaried defence lawyers, crown prosecutors, the independent Bar and solicitors in private practice. Far from salaried lawyers becoming too "prosecution" or "defence" minded, this increased flexibility is likely to broaden experience and reduce that risk. At present, as all those who have spoken know perfectly well, there are many advocates in private practice who appear almost exclusively for either the prosecution or defence.

I now turn to the issue of independence. It has been argued that salaried defenders, motivated solely by crude bureaucratic targets, might collude with Crown prosecutors to find ways of shortening cases and clearing lists. Crown prosecutors and salaried defenders would work for different organisations. But the charge of collusion is never heard when two barristers from the same chambers appear on opposite sides in the same case. The assumption must be that lawyers in private practice are entirely free from any pressures that might conceivably threaten their professional ethics. That assumption is not well founded.

Is the solicitor, a partner in his or her firm, free of the pressure of the balance sheet? Are salaried solicitors in private firms immune to the pressure of the time sheet and need to impress the partners and retain valued clients? These pressures could just as easily influence judgment and actions as the pressures faced by a state-employed lawyer. In both cases it is the ethics of the profession, backed-up by vigilant judges, which ensure that the highest standards are maintained.

The pressing need for most members of the Bar is to ensure that they are briefed to appear in subsequent cases. Their livelihood depends upon it. Very many lawyers, solicitors and barristers, are largely dependent on state funding, through legal aid or prosecution work, for their financial survival. Are they really more independent than an employee? Pressures exist in many forms. The notion that lawyers in private practice are free spirits who live a halcyon existence, idyllic and free of pressures, is fanciful and unreal.

The reality is that the safeguards that will exist to protect the independent professional judgment of salaried defenders will, if anything, exceed those which apply to vulnerable barristers or profit-led solicitors. Salaried defenders will have a secure salary and a pension; they will not face the need to turn a profit case by case. They will enjoy protection from unfair dismissal.

It is most important that any salaried lawyers employed by the legal services commission should uphold the highest standards of the profession. That is why Amendment No. 122, which will be debated later, will introduce a comprehensive statutory code for salaried defenders to guarantee those standards. Clause 35 of the Bill also gives statutory force to the duty, which all advocates have to the courts before which they are engaged, to act in the interests of justice. Their duty to comply with the conduct rules of their professional body will again be underscored by statute. These duties take precedence over any other civil law obligation that an advocate or litigator may have, including any obligations to his or her employer. The necessary safeguards of professional ethics will be in place. I simply do not accept that salaried defenders will face greater pressure on their independence, ethics and duties to the court and their clients, than are already faced and generally successfully resisted by private practitioners.

The noble Lord, Lord Kingsland, has described shortly but not yet moved Amendment No. 103. Since it is in this grouping I shall deal with it at this stage. By this amendment the noble Lord seeks to exclude salaried defenders only from the higher criminal courts. I cannot see the logic of that restriction. It may he that a suitably-qualified and competent lawyer employed by the commission is chosen by a suspect to advise and assist him in the police station. The same lawyer would probably represent the client in the magistrates' court. Surely it is appropriate for that lawyer, if qualified to do so, to continue to represent the client if the case goes to the Crown Court, perhaps on committal for sentence. This will avoid duplication of instruction, secure value for money and, at the same time, satisfy the defendant, who is more likely to have confidence in a representative who is a familiar face.

Some noble Lords referred to the problem that affects the clients of the independent Bar arising out of returned briefs. A Crown Court survey conducted by the Royal Commission on Criminal Justice in 1992 by Professor Zandar found that one third of defence barristers said that they had their briefs on the day before the hearing or only on the day itself. Defence barristers said that the brief had been returned from other barristers in 44 per cent. of all contested cases. This causes great dissatisfaction to clients of the private Bar. I submit to your Lordships that the possibility of the engagement of salaried lawyers by the criminal defence service will break down restrictive practice, offer greater choice and improve the quality of service.

Lord Thomas of Gresford

My Lords, the noble and learned Lord the Lord Chancellor referred to the pressures on members of the private Bar and solicitors. The greatest pressure on those who are engaged in criminal practice is the ethos of the profession, which puts the interests of the defendant alone above everything else, even including advancement in a judicial career. That is what binds together noble Lords on all sides of the House for whose support in this debate I am grateful. That is what binds the noble Baronesses, Lady Mallalieu, Lady Kennedy of The Shaws and Lady Scotland, my noble friend Lord Hutchinson, the noble Lord, Lord Carlisle, and myself. One is concerned to protect the dynamics of the criminal Bar and the ethos of that profession.

The noble Baroness, Lady Crawley, said that we were resistant to change. What is the need for change? That was the question put by the noble Lord, Lord Carlisle. With the greatest respect to the Lord Chancellor, he has not demonstrated any need for change. He says that our proposals are based on anecdote, not evidence. The noble and learned Lord does not even have anecdotes to support his position; he has no evidence. No research has been carried out.

The noble and learned Lord made reference to what happened in foreign jurisdictions. In the course of my speech to your Lordships I drew attention to the fact that in the United States the Department of Justice was deeply concerned about the way in which indigent defence systems worked there. In 13 states the systems are precisely akin to that which is now proposed by the noble and learned Lord.

We on these Benches believe in value for money, but we do not interpret "value" to mean the disposal of a case. We interpret the value that is achieved for the money that is expended on defence services as the degree to which the interests of the defendant have been protected by his advocate in court, whether it be a solicitor or barrister. I am not satisfied with the answers that the noble and learned Lord has given and I seek to obtain the opinion of the House.

4.28 p.m.

On Question, Whether the said amendment (No. 97) shall be agreed to?

Their Lordships divided: Contents, 189; Not-Contents, 134.

Division No. 1
Ackner, L. Cranborne, V.
Addington, L. Crickhowell, L.
Addison, V. Cross, V.
Ailsa, M. Cumberlege, B.
Alton of Liverpool, L Dahrendorf, L
Anelay of St. Johns, B Darcy de Knayth, B.
Annaly, L Davidson. V.
Astor, V Dean of Harptree, L.
Astor of Hever, L Denbigh, E.
Attlee, E. Dholakia, L.
Avebury, L. Dilhorne, V.
Baker of Dorking, L. Dixon-Smith, L.
Belhaven and Stenton, L. Donegall, M.
Beloff, L. Dundee, E.
Belstead, L. Elibank, L.
Berners. B. Ellenborough, L.
Biddulph, L. Elliott of Morpeth, L.
Blackburn, Bp. Erne, E.
Blatch. B. Ezra, L.
Boardman, L. Falkland. V.
Bridgeman, V. Gainford, L.
Bridges. L. Garel-Jones, L.
Brightman, L. Geddes, L
Broadbridge, L. Geraint, L.
Brougham and Vaux, L. Gisborough, L.
Bruntisfield, L. Glanusk, L.
Burnham, L. Glenarthur, L.
Buscombe, B. Glentoran, L.
Butterfield, L. Goodhart, L.
Butterworth, L. Gray, L.
Caithness, E. Gray of Contin, L
Calverley, L. Grimston of Westbury,L.
Campbell of Alloway,L. Harding of Petherton,L.
Carew, L. Harmar-Nicholls,L.
Carlisle of Bucklow,L. Harris of Greenwich, L.
Carnegy of Lour, B. Hayhoe, L.
Charteris of Amisfield, L. Henley, L. [Teller.]
Chesham, L. Higgins, L.
Clark of Kempston, L. Holderness, L.
Clement-Jones, L. HolmPatrick, L.
Colwyn, L. Hooson, L.
Cope of Berkeley, L. Hothfield, L.
Craig of Radley, L. Howe, E.
Hunt of Wirral, L. Rankeillour, L.
Hutchinson of Lullington, L. Rathcavan, L.
Hylton-Foster, B. Rawlinson of Ewell, L.
Inglewood, L. Redesdale, L.
Jacobs, L. Rees, L.
Jenkin of Roding, L. Renfrew of Kaimsthom, L.
Jenkins of Hillhead, L. Renton, L.
Jopling, L. Roberts of Conwy, L.
Kingsland, L. Rodgers of Quarry Bank. L.
Kintore, E. Russell, E.
Knollys, V. St. Davids, V.
Lang of Monkton, L. St. John of Fawsley, L.
Lawrence, L. Sandford, L.
Leigh, L. Sandwich, E.
Liverpool, E. Savile, L.
Long, V. Seccombe, B.
Lucas of Chilworth, L. Sharp of Guildford, B.
Macclesfield, E. Simon of Glaisdale, L.
Mackay of Ardhrecknish, L. Skelmersdale, L.
Macleod of Borve, B. Stair, E.
McNair, L. Strathclyde, L.
Maddock, B. Sudeley, L.
Mar and Kellie, E. Swansea, L.
Marlesford, L. Swinfen, L.
Merrivale, L. Taverne, L.
Middleton, L. Taylor of Warwick. L.
Miller of Chilthorne Domer, B. Thomas of Gresford, L. [Teller.]
Miller of Hendon, B. Thomas of Gwydir, L.
Milverton, L. Thomas of Walliswood, B.
Monro of Langholm, L. Thurso, V.
Mountevans, L. Tope, L.
Mowbray and Stourton, L. Tordoff, L.
Moyne, L. Torrington, V.
Moynihan, L. Trefgarne, L.
Munster, E. Trumpington, B.
Murton of Lindisfarne, L. Tugendhat, L.
Napier and Ettrick, L. Vinson, L.
Newall, L. Vivian, L.
Newby, L. Waddington, L.
Noel-Buxton, L. Wade of Chorlton, L.
Northesk, E. Wakeham, L.
Norton of Louth, L. Walpole, L.
O'Cathain, B. Weatherill, L.
Onslow of Woking, L. Weir, V.
Oxfuird, V. Wigoder, L
Palmer, L. Wilberforce, L.
Peel, E. Wilcox, B.
Pender, L. Williams of Crosby, B.
Phillips of Sudbury, L. Winchilsea and Nottingham, E.
Pilkington of Oxenford, L. Wise, L.
Platt of Writtle, B. Wynford, L.
Young, B.
Acton, L. Camarvon, E.
Ahmed, L. Carter, L. [Teller.]
Ailesbury, M. Castle of Blackburn, B.
Alli, L. Christopher, L.
Amos, B. Clarke of Hampstead, L.
Ampthill, L. Clinton-Davis, L.
Archer of Sandwell, L. Cocks of Hartcliffe, L.
Ashley of Stoke, L. Crawley, B.
Attenborough, L. David, B.
Bach, L. Davies of Coity, L.
Barnett, L. Desai, L.
Bassam of Brighton, L. Dixon, L.
Berkeley, L. Donoughue, L.
Blease, L. Dormand of Easington, L.
Borrie, L. Dubs, L.
Bragg, L. Eatwell, L.
Brooke of Alverthorpe, L. Erroll, E.
Brookman, L. Evans of Parkside, L.
Bruce of Donington, L. Falconer of Thoroton, L.
Burlison, L. Farrington of Ribbleton, B.
Callaghan of Fitt, L.
Gallacher, L. Molloy, L.
Gilbert, L Monkswell, L.
Gladwin of Clee, L. Montague of Oxford, L.
Gordon of Strathblane, L. Morris of Castle Morris, L.
Goudie, B. Morris of Manchester, L.
Gould of Potternewton, B. Nunburnholme, L.
Graham of Edmonton, L. Orme, L.
Gregson, L. Paul, L.
Grenfell, L. Peston, L.
Hacking, L. Pitkeathley, B.
Hanworth, V. Ponsonby of Shulbrede, L.
Hardie, L. Prys-Davies, L.
Hardy of Wath, L. Puttnam, L.
Harris of Haringey, L. Ramsay of Cartvale, B.
Haskel, L. Randall of St. Budeaux, L.
Hayman, B. Rea, L.
Hilton of Eggardon, Rendell of Babergh, B.
B. Hogg of Cumbernauld, L. Sainsbury of Turville, L.
Hollis of Heigham, B. St. John of Bletso, L.
Howie of Troon, L. Sefton of Garston, L.
Hoyle, L. Serota, B.
Hughes, L. Sewel, L.
Hughes of Woodside, L. Shannon, E.
Hunt of Kings Heath, L. Shaughnessy, L.
Irvine of I airg, L.[Lord Shepherd, L.
Chancellor.] Sheppard of Liverpool, L.
Islwyn, L. Shore of Stepney, L.
Janner of Braunstone, L. Simon, V.
Jay of Paddington, B. [Lord Privy Simon of Highbury, L.
Seal.] Stallard, L.
Jeger, B. Stoddart of Swindon, L.
Jenkins of Putney, L Stone of Blackheath, L
Judd, L. Strabolgi, L.
Kirkhill, L Strafford, E.
Levy, L. Taylor of Blackburn, L.
Lofthouse of Pontefract, L. Taylor of Gryfe, L.
Longford, E. Thomas of Macclesfield, L.
Lovell-Davis, L. Thornton, B.
Macdonald of Tradeston, L. Tomlinson, L.
McIntosh of Haringey, L. Turner of Camden, B.
[Teller.] Varley, L.
Mackenzie of Framwellgate, L. Walker of Doncaster, L.
Marsh, L. Warner, L.
Masham of Ilton, B. Watson of Invergowrie, L.
Mason of Barnsley, L. Wedderbum of Charlton, L.
Merlyn-Rees, L. Whitty,L.
Milner of Leeds, L. Williams of Elvel, L.
Williams of Mostyn, L.

Resolved in the affirmative, and amendment agreed to accordingly.

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