§ 3.9 p.m.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 12 [The Criminal Defence Service]:
§ Lord Kingsland moved Amendment No. 145:
§ Page 8, line 17, after ("shall") insert (", after consultation with the Law Society, the General Council of the Bar and such other providers of existing legal services as its proposals may affect,").
§ The noble Lord said: Amendment No. 145 has a simple purpose. The noble and learned Lord the Lord Chancellor has, in his Bill, introduced the novel concept of a criminal defence service. The amendment seeks to ensure that before the defence service is established, full consultation takes place with all interested parties. I shall say no more about this amendment now because I know that my noble friend Lord Windlesham wants to speak to it. I beg to move.
§ Lord Windlesham
I am grateful to my noble friend Lord Kingsland for that brief introduction by way of moving the amendment. We should make no mistake that the amendment to Clause 12 on the introduction of a new criminal defence service represents a landmark in the development of criminal policy. The clause establishes by statute for the purpose of protecting the interests of individuals "involved in"—words to which we shall return later—criminal investigations or criminal proceedings".Those words come in Clause 12(1).
The new criminal defence service will, we should note, be an entirely separate service from the community legal service which was discussed earlier in Committee. I refer to Clauses 5 to 11. Although initially—that word is important—both services will be run by the legal services commission as set out in Chapter 6, paragraph 10 of the White Paper, I should like to suggest that the establishment of a criminal defence service goes much further and may have more profound effects on procedural justice in future than the overhaul of the system of paying legal aid, which is what brought the issue before the House in the first place.
The proposed service is not simply a novelty; it was entirely unforeseen until the publication of the White Paper, Modernising Justice, which appeared virtually simultaneously, within 24 hours of the First Reading of the Bill. From the comments made in a letter to the editor of The Times by the then chairman of the Bar, and later confirmed by the Law Society, there was no prior consultation with, nor any notification to, those two professional bodies.
879 The noble and learned Lord the Lord Chancellor has the reputation of a man in a hurry. The reform of legal aid is an issue where perhaps a degree of haste was not overdue—it has been a bugbear of successive governments for many years—but what was the reason for that lack of prior consultation? At Second Reading I asked for an explanation, but received no reply from the Minister of State when he wound up the debate.
Those Members of the Committee who were present at Second Reading will remember that very little was said about the criminal defence service either by the Lord Chancellor in opening or by the noble and learned Lord, Lord Falconer of Thoroton, when he replied, apart from the highly charged exchanges on the fear that employed lawyers in criminal proceedings might be less independent than under the present arrangements. Nobody was more eloquent in advancing that argument than the noble Lord, Lord Hutchinson of Lullington, whom we are all pleased to see in his place this afternoon.
Perhaps I may repeat those questions now: why was there no prior consultation? Was the CDS a last-minute idea? Were arguments raised against it within the Government, and, if so, what were they? Was it a fear of hostile reaction? Were the spindoctors unhappy—surely not—or was it more likely that it was just a misjudgment of the proper way to approach legislative change?
In replying to my noble friend Lord Kingsland on an amendment to Clause 9 last week, the Lord Chancellor confirmed that it was his practice to consult on major innovations. Nobody can question that this is a major innovation. The amendment provides an opportunity to explain why consultation in advance of publication of the Bill did not happen in this instance; but it goes further than that. The amendment looks to the future and not to the past. By accepting that there should be consultation with the Law Society, the General Council of the Bar, and with other providers of existing legal services, once the Bill has become law—that is, after the event, but before the new service is set up—the Government would have a graceful way of making amends for their failure to consult earlier.
§ 3.15 p.m.
§ The Lord Chancellor
Clause 12(1) imposes a duty on the commission to establish, maintain and develop the criminal defence service to protect the interests of people involved in criminal investigations and proceedings. The amendment would postpone that duty arising until consultations had taken place and would make all subsequent activity by the commission to maintain and develop the criminal defence service subject to consultation with the legal profession and others.
Since becoming Lord Chancellor on 2nd May 1997, I feel that I spend half my life consulting people. If I am "a man in a hurry", certainly the extent of the consultations which I undertake operate as a considerable brake upon that. I believe wholly in full discussions, consultations and piloting before changes are introduced. Looking back over the past year or two 880 at the continuing development of what is now criminal legal aid, the Legal Aid Board has consulted and discussed with the Law Society, and others, the development and introduction of franchising in criminal cases. Its proposals for criminal advice and assistance and police station and court duty solicitor schemes, as well as the design of the pilots to test them out, have all been consulted on most fully. Similarly, since last December the board has been involved in discussions with the Law Society and the 68 firms which are to pilot the new youth court arrangements. There have also, for example, been consultations recently with the Bar and the Law Society about the alterations needed to the criminal legal aid scheme to accommodate changes relating to how we pay for bail applications in the magistrates' court; solicitors attending behind counsel in the Crown Court and for work done in the magistrates' courts for indictable-only cases that go to the Crown Court. The Law Society has in addition been very fully involved in the renumeration arrangements for the so-called "Narey" pilots as part of the Government's overall initiatives to reduce delay in magistrates' courts. At the same time the Bar was fully involved in setting up the graduated fee scheme for Crown Court cases. It is currently actively discussing with my department the prospect of extending that scheme and of gaining better control over the 1 per cent. of high cost criminal cases that account for about 40 per cent. of legal aid expenditure in the Crown Courts.
The examples of consultation and discussion that I could give are legion and will grow as we move further along the road to reform. With respect to the noble Lord, I believe that his amendment is based on a misunderstanding of what the Government are about in their reforms of the way in which we secure defence services and how they intend to proceed. The amendment appears to assume that we are on the verge of a revolution when in fact we are already in the midst of continuing evolution of which the changes under the Bill are only a part. I dare say that the noble Lord, Lord Windlesham, is right that this is a landmark, but it does not begin to represent a revolution. The Government have reached the conclusion that in all areas of legal aid they need to become more active in securing services for those who need them rather than simply being reactive and paying lawyers' bills when they come in once a service has been provided; hence the shift over time to contracting or other means of better ensuring that the services are of good quality and value for money in protecting the interests of criminal defendants.
As my examples of recent consultations and discussions indicated, we are already proceeding well along this road as regards criminal legal aid. For example, limited contracting is possible under the current statute. In June last year the Legal Aid Board started a pilot scheme to develop contracts to provide criminal advice and assistance, including at the police station and in the magistrates' court. The Government's aim is that all advice and assistance in criminal matters should be provided under contracts by the year 2000. Contracts for representation in the youth courts will begin to be piloted next month. As the pilot proceeds, 881 the contracts will be gradually rolled out to cover more areas and providers and magistrates' proceedings more generally. Even further down the road, and again subject to consultation and piloting by the year 2003 we might expect to see solicitors operating under contracts in Crown Court cases.
Meanwhile I hope to make much faster progress on very expensive criminal cases. Again, my department is currently in discussion with the Bar and the Law Society about the prospect of one-off individual contracts in such cases. However, the current powers to contract are limited and are not appropriate to a system where we expect contracting to become the predominant but not necessarily the only means for securing criminal legal services for defendants over time.
Matters of principle or major changes will need to be the subject of discussion and consultation as we develop the scheme. But the purpose of the Bill is to allow us to go further down the road towards contracting. Perhaps I may explain to the noble Lord that there is not going to be any sudden realisation of a grand plan to be unveiled and foisted on the legal world on the day we implement the Bill. In most respects the organisation and types of services available on day one of the new statutory regime will be no different from what they were on the last day of the current regime.
Perhaps I may take as an example one of the matters raised in our discussions in Committee; namely, how contracting will affect the Bar. At present we have a graduated fee scheme covering trials in the Crown Court of up to 10 days. That will still be there when this Bill comes into effect and in all likelihood it will last until the year 2003. Therefore, depending on what progress we make with the Bar in our discussions on contracting directly with it for its services, that scheme could remain in place for some years. In some types of cases it may remain indefinitely. In that time it might even be extended in its coverage.
This is a practical and incremental strategy and to my mind it is the right way forward. It gives us time to consult as we go. It is no big bang on which there must be some specific consultation exercise. The way in which we are proceeding will ensure that we can pilot new arrangements rather than chancing our arm with major untested changes without piloting and discussion.
I am at pains to emphasise to the noble Lord that there is not, and there is never going to be, a wholesale, redesigned system on which to consult specifically. I take the opportunity to reassure the Committee about that. While I am in no doubt that contracting will play an ever larger part in securing defence services in the future and that there may well be a place for a salaried element in the provision of criminal defence services—we shall discuss that later today—the upshot of what I am saying is that it is not possible to consult on the establishment of the criminal defence service as an entity precisely because there is no fixed grand plan on which to consult. However, we shall need to debate, discuss and consult on key elements and important changes as we go. Indeed, the passage of this Bill and our discussions in Committee on it are providing just such an opportunity.
882 I believe in proper consultation. As I said at the outset, I believe I spend about half my time engaged in it. If we are going to achieve real progress in improving defence services, consultation will be a vital, ongoing aspect of the reforms. To my mind the amendment as it stands points to the difficulty of enshrining this in law. The amendment not only seeks to make consultation a precondition of imposing a duty on the commission to establish the criminal defence service. It would also make it a precondition of maintaining and developing it, a task that holds out the prospect of really undefined and uninterrupted consultations stretching continuously into the indefinite future.
I apologise for detaining the Committee but I hope that on the basis of what I have said the noble Lord is reassured and that he will be able to withdraw the amendment.
§ Lord Hutchinson of Lullington
As regards consultation, the noble and learned Lord said that examples of it are legion. But was there any consultation with the profession concerning the revolutionary proposal of a salaried non-independent public defender before that appeared in the Bill?
§ The Lord Chancellor
We shall debate that in specific amendments appropriate to that matter. But, yes, I have had discussions in my office with representatives of the Bar and the Law Society on that subject.
§ 3.30 p.m.
While listening carefully to the noble and learned Lord, it seemed to me that he was making out a very strong case for the amendment. He said three times that he was going to have consultation of the kind envisaged in the amendment. Therefore, why should that not be written into the Bill?
§ Lord Thomas of Gresford
In rising to support the amendment of the noble Lord. Lord Windlesham, I noted what the noble and learned Lord the Lord Chancellor said regarding there being no "big bang" about the proposals. Nevertheless, major changes are proposed to the way in which people are supported by the state in defending themselves against criminal charges. It is surprising that there has not been a greater degree of consultation than that to which the noble and learned Lord referred.
It is important that there be independence between the defence and prosecution in a criminal case. We have maintained that principle up until now. Criminal legal aid has always been organised and supervised by the courts, which were responsible, first, to the Home Secretary, but from the 1980s, in the case of the higher courts, it became the responsibility of the Lord Chancellor's Department. But independence of the legal aid system for people charged with criminal offences was guaranteed by the interposition of the courts and accountability was secured by the powers of the taxing officer who ensured that expenditure was reasonable and justified. Indeed, at one time it was the clerk who actually heard the case who determined what was 883 appropriate in the way of defence costs. But today, in more serious cases, he has been replaced by the central taxing unit and by graduated fees.
However, the criminal defence service which is now proposed in the Bill is a step nearer to government control. It will affect the independence of the defender in a number of ways. For example, the "right to representation", as it is called, is not an inherent right of an individual accused of crime. According to Schedule 3, a person accused of crime has a right to representation only after the court or the commission has, in its discretion, granted that right. Then the grant of that right depends on the criteria set out in paragraph 6 of the schedule, which, as it appears to me, will limit the eligibility of a person charged with a criminal offence very considerably, as compared with the position today.
The right to representation is being limited by the proposals and is being limited on the face of the Bill. There has been no consultation about it. Further, the Lord Chancellor has the controlling power to alter the criteria himself and to determine what is in the interests of justice in the granting of what is effectively legal aid, or the right to representation, to an individual defendant. Then the power of the commission to provide advice and assistance and itself to provide representation, as my noble friend Lord Hutchinson pointed out, introduces the concept of the state prosecutor versus the state defender. It really is only one short step to the removal of the principle that a defendant is entitled to independent counsel of his own choosing. That principle has been part of the law of this country for centuries.
So these are major changes which do appear on the face of the Bill. The sort of consultation to which the noble and learned Lord referred in his initial reply to the noble Lord, Lord Windlesham, related to matters of detail and matters of practicality, which have nothing to do with the broad principles with which this Bill is concerned. As the noble and learned Lord the Lord Chancellor rightly observed, we shall consider the detail at a later stage of these proceedings. However, we are faced with the policy set down by the Government without full and adequate consultation upon it having taken place.
§ Lord Windlesham
I am grateful to the noble and learned Lord for his full reply to my amendment. I do not doubt for a moment that he spent a great deal of time in well-intentioned negotiation with the professional bodies. However, the noble Lord, Lord Thomas. put very clearly in his final remarks what is in my mind; namely, that the discussion and negotiations have been very much on operational matters—that is to say, the working of the contracting system and the pilot scheme which is in progress. They did not, however, deal with the central issues.
For those who are not familiar with these matters, I should point out that there are six chapters in the White Paper. One of them is 10 pages long and is exclusively devoted to the criminal defence service. Indeed, a clear scheme is set out there. It contains the heart of the proposals and outlines matters that call for 884 scrutiny and review. I do not question the interpretation of the noble and learned Lord the Lord Chancellor. That must be how he saw it. Nevertheless, he said that the establishment of the criminal defence service is no big deal.
§ Lord Windlesham
I stand corrected. Let us use more formal language. We are talking about a matter of considerable significance for the future. I am sure that we can all agree in that respect. Nevertheless, I believe that this debate has served its purpose; indeed, we have had a full discussion. If my noble friend Lord Kingsland decides to withdraw the amendment, I shall not object.
§ Lord Kingsland
The noble and learned Lord the Lord Chancellor was quite right to say that he has consulted extensively on many matters contained in this Bill; and if I may say so, he has, in most cases, done so in an extremely professional way. He has issued well-prepared and well-thought-out documents. He has listened to what has been said in response and has taken into account many of the observations made. That is why the appearance of the criminal defence service in the Bill is so strange. I say that because the rights of the criminal accused are absolutely central to the successful operation of a free society. Therefore, any attempt to change those rights or the framework in which they are exercised, will always be a matter of profound parliamentary concern.
The criminal defence service initiative in the Bill is the odd man out, because no prior consultation of the type which has taken place in all the civil initiatives has taken place in relation to it. I shall read carefully the reply of the noble and learned Lord the Lord Chancellor to the points made by my noble friend Lord Windlesham; and think about either reintroducing this amendment, or tabling a modified one, on Report. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Ackner: moved Amendment No. 146:
§ Page 8, line 19, leave out ("involved") and insert ("suspected or accused").
§ The noble and learned Lord said: In moving this amendment, I shall also speak to Amendments Nos. 147, 148 and 149. This group of amendments was due to be dealt with shortly before 10 o'clock on the evening of last Tuesday. I had marked it down as containing four modest "post-prandial" amendments. However, the timing now makes that a rather superfluous description.
§ The amendments speak for themselves to a large extent. Amendment No. 146 relates to the word "involved", which I believe is intended to cover "suspected or accused". If that is right, then the latter should be inserted in the wording of the subsection. Amendment No. 147 relates to subsection (2) of Clause 12. I do not know what is intended by the clause and, therefore, I have tabled this probing amendment in an effort to discover why the subsection has been 885 worded in that way. The same principle relates to Amendment No. 148. I should like to know what is contemplated as being likely to fall within this subsection. If it is known, then it should be stated with some precision. Who is to do the prescribing? Amendment No. 149 is designed to ensure that the quality of the service provided is kept under careful review so that what is an important change to the whole system of defence is properly catered for by ensuring that it is monitored effectively. I beg to move.
§ The Lord Chancellor
I appreciate that the noble and learned Lord has tabled this amendment as a probing amendment. Of course because we gave way on the previous Committee day to the suggestion that we should rise earlier the noble and learned Lord is able to move this probing amendment conveniently before afternoon tea!
I think that the noble and learned Lord has failed to appreciate that the provisions he wishes to exclude are, and are intended to be, of exclusively beneficial effect. However, as I say, I appreciate that this is a probing amendment. The wider circumstances encompassed within the word "involved" are deliberate. Clause 12(1) defines the circumstances in which criminal defence services are to be available as those where an individual is involved in criminal investigations or criminal proceedings.
Subsections (2) and (3) respectively define what is meant by criminal investigation and proceedings and give the Lord Chancellor power by order in effect to extend the categories of investigations and proceedings for which defence services are available. The noble and learned Lord's amendments would remove the definition of criminal investigations and the power to extend the definitions of criminal investigations and proceedings. The loss of a power to extend the definition of criminal investigations and proceedings for which defence services are available would be regrettable.
For example, I would not be able to extend criminal defence services to post-conviction investigations such as those by the Criminal Cases Review Commission into alleged miscarriages of justice. Or again, I would not be able to extend the meaning of criminal proceedings for which defence services are available to representation in Parole Board reviews of discretionary life sentences or sentences of young offenders detained at Her Majesty's pleasure.
For those reasons and because the significance of the language is to enable me to give rather than to take away, I invite the noble and learned Lord to withdraw his amendments.
§ Lord Windlesham
Before the noble and learned Lord replies, I accept that those arguments are intended to be helpful. Nevertheless "involved in" is surely a loose and conversational term. I am rather surprised to find it in the vocabulary of the government draftsman at all.
The noble and learned Lord pointed out that the suggested wording of "suspected or accused" would leave out quite important categories of activity; for 886 example post-conviction review. I believe another category might comprise those who go to a police station voluntarily but are not accused or suspected. The Law Society has mentioned that as possibly an additional category of person who would not be covered by the proposals of the noble and learned Lord, Lord Ackner. I have been closely involved with the question of discretionary life sentences and the representation of those who present their case to panels of the Parole Board. It is clearly important that legally aided qualified people should be available. I suspect that the amendment will be withdrawn. However, will the noble and learned Lord ask the draftsman to reconsider his phrase book to see whether there is a better phrase than "involved in"? It may be possible to make that term somewhat more precise.
§ Lord Wigoder
I can see nothing in subsections (2) or (3) that would prevent the criminal defence service under subsection (1) having the duty to protect the interests of the prosecuting solicitor, the Home Office pathologist, the witnesses, the jury and the judge. Surely the wording as it stands is too loose. If the noble and learned Lord is not happy with the phrase "suspected or accused", he might consider something along the lines of,subject to criminal investigations or criminal proceedings"—something that links the person involved with the fact that it is the defendant we are considering, not everyone else who is involved in the trial.
I wish to pursue further the meaning of the word "involved". It seems to me that it could include victims of a crime, complainants, witnesses, and indeed people professionally involved. But I find it hard to believe that that is what is really intended.
§ 3.45 p.m.
§ The Lord Chancellor
I am not persuaded by the arguments I have heard which suggest that "involved" is the wrong word. Although it is not our practice when in Committee to draft on our feet, I observe that no alternative has been put forward. However, I am well content to take back our discussions on these provisions to the parliamentary draftsman and invite him to consider whether any other expressions are more apt to fulfil the purpose.
I should perhaps have said when I was on my feet earlier that I did not speak to Amendment No. 149 because it is grouped separately. It may be more appropriate for the noble and learned Lord, after he has indicated his intentions in relation to this amendment, to speak separately to Amendment No. 149.
§ Lord Ackner
On the basis of my noble and learned friend's willingness to look again at that which has been criticised, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 147 and 148 not moved.]887
§ Lord Ackner moved Amendment No. 149:
Page 8, line 43, at end insert—
("( ) The Commission shall keep under review, or secure that others keep under review, the quality of service provided by all persons or bodies accredited under subsection (5); and the Commission shall withdraw accreditation, or secure that others withdraw accreditation, from any person or body who fails to provide a satisfactory quality of service.").
§ The noble and learned Lord said: I have already outlined my basis for justifying this amendment. Accordingly I beg to move.
§ Lord Windlesham
As my name is also attached to this amendment I shall say a few words about it. The amendment bears directly on the quality of service provided for defendants and others who are advised, assisted or represented by the criminal defence service. The three words, "advised, assisted, or represented", describe the functions of the new service. Importance should be attached to that because, despite the very frequent references in the debate so far, in the White Paper and in other published documents to a quality service—"this will be a service of high quality", "quality assurance" and so on—these are in most instances aspirations, and we should accept them as such. Of course it is intended that any new service set up by statute should function properly, and should be of good quality. However, the idea of assuring quality goes somewhat further. We need to look at the enforcement machinery which is devised to maintain standards of delivery.
Amendment No. 149 places a specific obligation on the legal services commission—under whose umbrella the CDS is to come initially—to keep under review the quality of the service provided by those who will have the responsibility for managing it and by its accredited contractors. Furthermore, the amendment provides sanctions by virtue of the power to withdraw accreditation should those standards not be met. The amendment goes further than the power to accredit, which we find elsewhere in the Bill; there is a sanction in the event of a falling short of the standard. It seems to me a reasonable enough provision. I hope that the Government will tell us whether they can accept it.
§ Lord Campbell of Alloway
Is there any other specific provision in the Bill in which it is expressed or implied that there should be some monitoring of the quality of the service? On the assumption that there is not, how will monitoring be carried out in practice by the Lord Chancellor's Department?
§ The Lord Chancellor
The amendment sets out what really is implicit in an accreditation scheme—that quality standards shall be kept under review and appropriate action taken if they are not met. One of the main objectives of the Bill is to ensure that the legal services provided by the commission are of high quality. This amendment provides me with the first opportunity this afternoon—I hope not the last in our discussions—to demonstrate to the noble and learned Lord, Lord Ackner, that this is a listening Government. I am grateful to him for suggesting the amendment and I am happy to accept it 888 in principle. I am prepared to go even further. I propose to bring forward a similar amendment to apply to the provision of community legal services.
In answer to the noble Lord, Lord Campbell of Alloway, when the Government bring forward amendments to this effect, in line with the undertaking that I have given, I shall indicate how we would anticipate that monitoring will operate in practice. Meanwhile, on that basis, I invite the noble and learned Lord to withdraw his amendment.
§ Lord Ackner
I am most grateful to my noble and learned friend the Lord Chancellor. This shows that the shorter an amendment the more effective it is. Accordingly, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Lord Ackner moved Amendment No. 150.
§ After Clause 12, insert the following new clause—
§ CODE OF CONDUCT FOR DEFENCE SERVICE PROVIDERS
§ (" .—(1) The Commission shall issue a code of conduct ("the Defender's Code") for persons or bodies providing services as part of the Criminal Defence Service ("defenders").
§ (2) No defender shall be accredited under section 12(5) unless—
- (a) where the defender is an employee of the Commission or an employee of a body funded by the Commission, the defender's contract of employment includes the Defender's Code; or
- (b) in any other case, the defender is bound by other professional rules of conduct which are as least as comprehensive and as stringent as the Defender's Code.
§ (3) The Defender's Code shall include rules about—
- (a) the defender's duty to the court;
- (b) the defender's duty to protect the interest of the individual concerned, including the defender's duty to decline or cease to act because the defender has insufficient skill, experience, competence or available time;
- (c) the defender's duty to avoid conflicts of interest and to act with independence, integrity and freedom from external pressures;
- (d) the defender's duty not to discriminate because of race, sex or other unjust reason; and
- (e) the defender's duty of confidentiality.
§ (4) Before the Commission issues a Defender's Code, it shall prepare and publish a draft of that Code and consider any representations about the draft; and it may modify the draft accordingly.
§ (5) Subject to subsection (4), the Commission shall submit the draft Defender's Code to the Lord Chancellor who shall lay it before both Houses of Parliament; and if the draft is approved by resolution of each House of Parliament, the Commission shall issue the Defender's Code in the form of the approved draft which shall come into force on such day as the Lord Chancellor shall by order appoint.
§ (6) The Commission may from time to time revise the whole or any part of the Defender's Code and subsections (4) and (5) shall apply to any revised Code as they apply to the first draft.").
§ The noble and learned Lord said: I shall do my best to continue to be brief because the harmony in regard to the last amendment should spread swiftly to this one.
§ The amendment is designed to provide a code for the defence provider. It is based on the Bar's code of conduct in general terms and has been drafted by the Criminal Bar Association. It is intended to ensure that 889 the public are appropriately safeguarded. For that safeguard to exist, there ought to be on the face of the Bill a clear obligation to issue a code of conduct and an obligation which spells out on the face of the Bill the essential provisions and philosophy of the code. I beg to move.
§ Lord Borrie
The noble and learned Lord, Lord Ackner, has, as one would have expected, very carefully and comprehensively drafted something which would be suitable as a code of conduct—or, rather, a list of requirements for such a code—for those engaged by the criminal defence service to provide criminal defence services. He has covered all the vital matters concerning obligation to the court, integrity, confidentiality and so on. I have only two perhaps relatively minor queries. The noble and learned Lord has, in my view, been extremely constructive in inserting this amendment as part of the provisions concerned with what is, after all, a controversial set of proposals concerning the criminal defence service.
My first query is this. The code is intended for those who are providing a criminal defence service as part of that service. It would presumably be undesirable if in some way members of the Bar or the solicitors' profession who were providing such services independently were under a different set of rules or there were in any way variations between them. In the longer term, does the noble and learned Lord want all people who represent alleged criminals in our criminal courts to be under the same code, or under the same code with statutory backing, or is he merely pinpointing a problem which could arise if variations occur?
My second query is this. The compendious term for those who are engaged by the criminal defence service is rather inconvenient; hence, I suppose, the noble and learned Lord has seized on the word "defender". I do not want to make too much of a meal of it—certainly not in the presence of a number of Scottish lawyers, such as the noble and learned Lord, Lord Jauncey of Tullichettle, and others—but the term may be slightly inconvenient because in Scottish civil litigation the word "defender" means "defendant" in English terms. The Bill applies mainly to England, but certain parts of it also apply to Scotland. It might be mildly inconvenient or inappropriate if the selfsame word were used for entirely different purposes.
§ Lord Windlesham
The Law Society also supports the principle of a defenders' code for those employed by the criminal defence service, and therefore its name can be added to those bodies referred to by the noble and learned Lord, Lord Ackner, in moving this amendment.
We can probably all agree that there are four key elements which should be covered in any code of conduct: first, independence for the professional judgment of the lawyer; secondly, sufficient freedom of choice for the individual; thirdly, equal competence between prosecution and defence, which is easy to proclaim but sometimes very difficult to achieve; and, fourthly, respect for the rule of law. Where services are provided by an employee of the state, there should 890 surely be standards which the lawyers are professionally and legally obliged to put before the interests of the employer.
In this connection the Law Society has drawn attention to the situation in the United States where the American Bar Association has set out standards for representation, both by public defenders and by those providing services on a contract basis. As so often is the case in America, the aspiration does not always meet the reality. As those standards do not have the force of law in many states they frequently have not been observed by public defenders' offices. One of the main features—and perhaps I may ask the Lord Chancellor to comment on this, either now or later—that has arisen is that case-loads are often too heavy. The American Bar Association is supporting case-load limits, and is trying to provide in a code a limitation on the weight of work carried by public defenders.
That may be a relatively narrow point. If the Lord Chancellor does not feel able to comment on it now, as may well be the case, perhaps he would write to me and also to the Law Society with his comments on ways of limiting case-loads.
§ 4 p.m.
§ Lord Thomas of Gresford
If it reassures the noble Lord, Lord Borrie, the term "public defender" is the one customarily used in the United States and in Australia in dealing with people who are employed by the state to defend accused persons.
There is a prosecutors' code. That code, which is published and is well-known, applies both to those who are employed by the Crown Prosecution Service and who conduct prosecutions in the lower courts and to those who are instructed to prosecute as independent counsel. The code applies across the board. In those circumstances, I see no reason why there should not similarly be a defenders' code which would apply across the board. It would apply whether a person was independent or whether he was employed under the terms of these proposals.
§ Lord Campbell of Alloway
I totally accept that the code should apply right across the board and that there should be a prosecutors' code which also applies right across the board. Surely the terms of the code, which does not have, as such, legal efficacy, ought to be included in the statute or the clause should be included in the statute. I should be very grateful to have the advice of the noble and learned Lord, Lord Simon, on this point, because so often I have heard him say that one should not clutter up a statute.
§ Lord Mishcon
I rise only with a query because of the contribution usefully made, as usual, by the noble Lord, Lord Windlesham. Would it not be a precedent, and an unfavourable one, if a statute were to impose on solicitors and counsel privately instructed a code of conduct covering matters which are usually left to their professional bodies to cover? One can well understand that when the Government employ a lawyer or a barrister as an employee one would be entitled to look to an Act of Parliament to see the terms upon which that 891 employment took place and the code of conduct which related to it. I ask my noble and learned friend the Lord Chancellor to consider what precedent would be created not only for this profession but for other professions, which are already adequately covered with regard to their ethical codes by their own bodies.
§ The Lord Chancellor
I agree in principle that it is most important that the criminal defence service, including any salaried defenders engaged by the legal services commission, should uphold the highest standards of the legal profession. Defendants are entitled to expect no less. It is certainly no part of our plans that any service provided by salaried defenders should be second-rate. On the contrary, we believe that in those cases where salaried defenders may be used—perhaps where there might otherwise be gaps in the provision of defence services—they will provide a bench-mark of quality and cost against which other defence lawyers can be judged.
The noble Lord, Lord Windlesham, asked about a problem on the other side of the Atlantic concerning case loads being too heavy. Any provision in that regard would not be appropriate for a code of ethical standards for defending criminal lawyers. However, I shall certainly respond to his invitation and write to him on this subject. Nor do I think, at first blush at any rate, that what the noble and learned Lord, Lord Ackner, is prescribing in his proposed new clause would entail that a stricter standard was being applied to such salaried defenders than is already applied by the Bar or solicitors in independent practice who engage independently in the courts in this class of work.
The noble Lord, Lord Mishcon, called attention to an important point. It would be curious to put on the face of the Bill, by a side-wind from prescribing a code of conduct for salaried defenders, rules which would statutorily override the existing rules of the professions. I tend to think that the closest analogy is probably with the Crown Prosecution Service, which is already subject to a code issued by the Director of Public Prosecution and laid before Parliament as part of the DPP's annual report to my right honourable and learned friend the Attorney-General.
The sense of what I am saying is that I agree in principle with the noble and learned Lord that the commission should be required to issue a similar code. If the noble and learned Lord is content, I would undertake to move a government amendment at the Report stage. However, that said, if the noble and learned Lord is persuaded that it would be right to withdraw his amendment on that basis, I hope that he will not abstain from saying anything that might be of assistance to us arising out of the specific points made in the course of our discussion on his amendment.
§ Lord Ackner
I am grateful to my noble and learned friend for his indication of sympathy and willingness to take whatever is the appropriate action in the light of this amendment. I am not sure that either the noble Lord, Lord Borne, or the noble Lord, Lord Mishcon, has taken the point that the private practitioner is already covered 892 by his code of conduct. The Bar, acting in its private capacity and not as an employee, has its code of conduct. The content of this clause has been largely modelled on it.
Subsection (2)(a) provides what should occur,where the defender is an employee of the Commission or an employee of a body funded by the Commission".That then requires the contract of employment to include the code. The subsection continues:or … in any other case, the defender is bound by other professional rules of conduct which are at least as comprehensive and as stringent as the Defender's Code".That provision seems to be designed to ensure that there is basically a parity of obligation. I submit that that is right, and that this proposal is rational and justifiable. I ask leave to withdraw the amendment, having regard to the offer made by my noble and learned friend the Lord Chancellor.
§ Amendment, by leave, withdrawn.
§ Clause 13 [Advice and assistance]:
§ Lord Ackner moved Amendment No. 151:
§ Page 8, line 44, leave out ("it considers appropriate") and insert ("are necessary in the interests of justice").
The noble and learned Lord said: There have been many references to value for money. Although it will be said that what I am proposing can be implied, I believe it is desirable that it should be stressed by removing the words, "it considers appropriate" and inserting,
are necessary in the interests of justice".
§ As presently drafted, Clauses 12 to 21 dealing with the criminal defence service contain no specific reference to the requirement of justice. The amendment would allay fears as to the possibility that the essential aim of this part of the Bill is a cost-saving approach and would therefore stress that justice must always be the paramount consideration. I beg to move.
§ Lord Windlesham
As the noble and learned Lord has explained, this amendment would remove the power of the legal services commission to decide what advice and assistance it considered to be appropriate. To decide what is appropriate is a wide discretion. It would be replaced by an "interest of justice" test. If it is suggested that the phrase, "the interests of justice", is too vague and ill-defined, we should recall that Article 6.3 of the European Convention on Human Rights relates to the right of the defendant to defend himself in person, or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. That article is a right that has been "brought home"—as a result of recent legislation it now forms part of our domestic law. It already includes an interest of justice test which, if necessary, will need to be argued before the courts. So "the interests of justice" is a phrase with a legal meaning. If there is any doubt about that, it will shortly be resolved as a result of the incorporation of the European Convention on Human Rights.
§ Lord Campbell of Alloway
I strongly support the amendment. "Necessary in the interests of justice" is the only manner in which it would be possible to consider 893 what is done as appropriate. So why not say so? If the rectitude of the act is called into question, if the matter is left as it stands the answer is: why was it not appropriate? That leads to a circular argument. However, if the act is done and is said to be done as "necessary in the interests of justice", that is a far more precise and enforceable requirement.
§ 4.15 p.m.
§ The Lord Chancellor
I am ready to accept the spirit of this amendment, which would place on the face of the Bill a clear statement that the commission is to provide advice and assistance in criminal cases where that is necessary in the interests of justice.
As I have already said, it is my intention to move an amendment to the Bill setting out more clearly that the purpose of the criminal defence service is to provide advice, assistance and representation where that is required in the interest of justice. That was the intention of the Bill as drafted which at Clause 13(1)(a) places on the face of legal aid legislation for the first time the entitlement of an individual arrested by the police to advice and assistance. The words, "it considers appropriate", in Clause 13(1) were not intended to restrict this entitlement, but to leave to the commission the form and nature of assistance to be made available.
I am receptive to the idea that it would be appropriate to set those decisions in the context of the interest of justice. If he is content, I shall ensure that the noble and learned Lord sees in advance a draft of the amendment that the Government propose to bring forward. On that basis, I ask the noble and learned Lord to withdraw his amendment.
§ Lord Ackner
I do not know what the procedure is if one wishes to apply for entry in the Guiness Book of Records. With, as always, the co-operation of my noble and learned friend, I have certainly achieved a hat-trick. On that basis, I ask leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Lord Ackner had given notice of his intention to move Amendment No. 152:
§ Page 9, line 5, leave out ("or bodies").
§ The noble and learned Lord said: Merely to show my gratitude, I shall not seek to move this amendment.
§ [Amendments Nos. 152 and 153 not moved.]
§ Lord Goodhart moved Amendment No. 154:
§ Page 9, line 13, leave out ("or loans").
§ The noble Lord said: This is a brief and purely probing point. I am concerned to know why the Government propose to include the power to make loans to individuals to enable them to obtain advice or assistance. In what circumstances will loans rather than grants be provided? Is there to be a means test to decide whether a loan rather than a grant is appropriate? If so, does that not undermine the Government's welcome objective of, by and large, getting rid of the means test in providing criminal legal aid?
§ The Lord Chancellor
The noble Lord, Lord Goodhart, makes a good point. I am grateful to him for 894 drawing my attention to what, on reflection, I regard as an anomaly. In the drafting of the Bill, some elements are common to both the community legal service and the criminal defence service. An identical range of powers, including loans, is contained in the civil context.
In criminal matters, the provision of loans to individuals as one of a range of payment methods for advice and assistance is, I agree, not appropriate. Indeed, no payment is required for advice and assistance in criminal investigations or proceedings. Clause 16(2) makes it clear that it is only in limited circumstances in respect of representation that an individual for whom services are funded by the commission might be required to make any payment. I am therefore content to accept the amendment.
§ Lord Campbell of Alloway
I refer to the earlier subsection (2)(c), which must run with Amendment No. 154. The phrase "grants or loans" is used in subsection (2)(c) and also in subsection (2)(e). I merely point out that there seems to me to be a need for a consequential amendment.
§ On Question, amendment agreed to.
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
I must point out that if Amendment No. 155 is agreed to, I shall be unable to call Amendments Nos. 156, 157 and 158, owing to pre-emption.
§ Lord Archer of Sandwell moved Amendment No. 155:
§ Page 9, leave out lines 15 to 17.
§ The noble and learned Lord said: With this amendment it may be for the Committee's convenience if we discuss Amendments Nos. 156 to 158 and 163 to 166.
§ Having achieved such an accommodating atmosphere, I regret that I am not making greater demands upon my noble and learned friend, but these are probing amendments. Whether they might be discussed in more detail at a later stage depends on what the probe reveals.
§ Amendment No. 155 deals with the method by which it is intended that the commission shall carry out its duties. We are debating its nature and functions. The amendment is there, granted that the purpose is to fund advice and assistance in criminal cases, to say how it is proposed by my noble and learned friend that that might be done. The idea is welcome, as is the provision to pay people and make contracts in order to provide those services.
§ These amendments seek to explore the means which would enable the commission to provide those services. I appreciate that the service must operate through salaried employees. I see no objection to those employees, if they are shown to be competent, providing advice in suitable circumstances. It is clear, from the earlier debates today, that that is what is envisaged.
§ But there may be some dangers which we may need to consider and possibly address, although to some extent they may have been addressed by the concessions 895 which my noble and learned friend made earlier in response to the amendments by the noble and learned Lord, Lord Ackner.
§ First, in any locality the personnel of the criminal defence service and that of the Crown Prosecution Service are likely to be closely acquainted. They are likely perhaps to develop almost a collegiate relationship. There would be a common interest in the disposal of any case which would spare everyone time and trouble. The most conscientious of advisers may be at risk of allowing that to colour the advice which he gives.
We have heard much discussion of defence systems in the United States, mentioned earlier this afternoon by the noble Lord, Lord Windlesham. The Committee may remember that in 1980 Professors McConville and Mirsky produced a report on the system as it then operated in New York. It is fair to say that that was before the code to which the noble Lord, Lord Windlesham, referred. It lists the dangers which might exist. What the two professors said was:
Indigent criminal defendants in state criminal cases in New York City receive ineffective assistance from lawyers who, for largely systemic reasons, fail to provide competent adversarial representation. Those lawyers cannot fulfil their responsibility to their clients because those in control of indigent defense want low-cost, efficient processing of criminal defendants through guilty pleas and other non-trial dispositions. To achieve the efficient processing of defendants (and to legitimate a system that fails constitutional and statutory mandates to provide effective assistance of counsel), defense providers ally themselves with courts, prosecutors, local government and the organized bar rather than with indigent defendants".
How far that has changed since 1980 I am in no position to tell the Committee, but that those are possible dangers inherent in the system seems to be clear. Certainly that report was the subject of much criticism and controversy and I would not seek to impose on the Committee a review of the arguments on the two sides of the dispute. I am grateful to the Legal Action Group for having collected them. They are available if Members of the Committee wish to have them. I say only that at the lowest it is a possible danger to be addressed.
§ But it was a more specific concern which impelled me to set down Amendment No. 163 because it is addressed to a more specific question: not the giving of advice but the right of audience. It is not clear from the Bill—although I hope that my noble and learned friend will tell us whether it is envisaged—that salaried employees of the service will appear in the criminal courts to represent defendants. If so, perhaps he might tell us at what level and in what courts and in what kinds of cases that is envisaged.
§ If so, there are four possible dangers. First, someone who works for a salary and whose career prospects depend upon promotion within the organisation may not appear to the client to be (indeed he may not be) independent of a service which, however fair it seeks to be, has an interest in shortening cases and clearing lists. In any event, the qualities which make for promotion within an organisation are not necessarily those which mark the successful forensic lawyer, prepared to be critical of the Government or of services like the police.896
§ Secondly, the priority given to a particular case may turn on the workload—mentioned earlier, I believe, by the noble Lord, Lord Windlesham—and the resources then available to the organisation.
§ Thirdly, the salaried lawyers would gain their experience, unless they came into the service after service elsewhere, in a very restricted field, appearing in criminal cases in a particular locality and always for the defence. It may be replied that there are already members of the practising profession in that situation. If so, it is regrettable. But that would hardly justify extending the problem.
§ The fourth danger is probably the most fundamental. At present a defendant in a criminal case has a measure of choice as to which solicitor and counsel he employs. The question arises: would he have a similar choice if the only provision available to him is through a local salaried service? Alternatively, would he be assigned a representative, possibly the particular employee of the criminal defence service who is attending that court on that day? Certainly defendants are not always consulted now as to who, from their firm of solicitors, or which counsel, shall represent them. But if they have cause for complaint, they can now choose a different firm of solicitors next time. When the only public funding available to them is for representation through the criminal defence service, that will no longer be the case.
§ I am aware that a case can be made on the other side of the proposition. I do not propose to predict it, but it will be made by my noble and learned friend. I have no doubt that the question has been carefully considered and researched—at least I hope so. For the moment I await the outcome of that consideration and research and details of the method of operation. I beg to move.
§ 4.30 p.m.
§ Lord Thomas of Gresford
In speaking to Amendment No. 156 which is grouped with Amendment No. 155 I find it necessary to go further than the noble and learned Lord, Lord Archer of Sandwell, in that I object in principle to salaried employees giving advice to defendants or representing them in court. It is perhaps rather trite to say that it is in the interests of the state that guilty people are convicted of criminal offences. That is perfectly laudable provided that those who are convicted have committed the relevant criminal offences. Every miscarriage of justice causes the criminal justice system to fall into disrepute.
Even one case of injustice has a disproportionate effect on public confidence in the system. Public co-operation is weakened, witnesses are less willing to come forward and juries are less willing to convict, quite apart from the effect of an unjust conviction upon the life and family of the convicted individual. Hence, we have the very correct principle that a person who is accused of crime should be properly defended; that there should be equality of arms; that whereas on the one hand a prosecutor backed by the CPS and the police investigation should carry out his duties with skill and integrity, on the other a defender for whom the state provides the necessary resources to defend the accused should have the same quality, integrity and ability as the person who prosecutes.
897 Obviously, the resources provided to defenders must be spent wisely and well and they must account for their use. As a matter of principle, however, when the Government are the opposing party—the prosecutor—they should not be able to control in any way the nature or quality of the defence, nor the extent to which the defender can properly prepare his case. If a public defender system competes for funds it may be able to offer only minimal salaries and the quality of defending advocates will suffer; or it may be that the number of advocates employed will be low in order to keep down costs, in which case each defender will carry an overwhelming caseload with the consequence that he will not be able to give adequate time and attention to the investigation and preparation of his case. I do not believe it is generally realised that defence counsel do not simply appear in court and speak but that, together with their instructing solicitors, they must do a great amount of preparatory work and investigation before that stage is reached.
I believe it is essential that the defender is independent of the Government—the prosecutor—although accountable for the efficient use of his time and the state's money. There is also the problem of unpopular causes. I have experience of what can be done in Hong Kong, where a state prosecutor in the shape of the Attorney-General's chambers is matched by an entirely independent legal aid board which on occasions has to my knowledge resisted both public and government pressure on behalf of unpopular defendants; for example, illegal immigrants, Vietnamese boatpeople and, in one important case, Filipina maids. That independence must be preserved. As I said earlier this afternoon, the criminal defence service as envisaged in the Bill is a step nearer to government control. It affects the independence of the defender in the ways that I have already outlined.
There are also practical considerations. I believe it to be undesirable to have sheep and goats in the criminal justice system. It is not right that there should be those who make a career of prosecuting and those who make a career of defending. I say that based largely on provincial experience where the tradition is that counsel engaged in criminal cases prosecute and defend and have experience of both sides. I believe that to be a preferable system to that which tends to operate in London where some people specialise in prosecuting or defending. It is noticeable that Treasury counsel at the Old Bailey normally take silk and defend before they are considered for judicial appointment. One problem that arises from a division of the criminal Bar into defenders and prosecutors is that if one does not have experience of the other side one's approach to the task can be unbalanced.
The noble and learned Lord, Lord Archer, and others have referred to the collegiate common interest that may grow up between the Crown Prosecution Service and a defender service in disposing of cases. Anecdotal evidence from Australia is certainly to the effect that plea bargaining is a curse of the criminal system. On the one hand, over-charging by the prosecution and, on the other. a deal done behind closed doors, sometimes with 898 or without the assent of the judge, results in a lack of that independent advice that is so much the mark of the English system.
Another problem that is likely to arise relates to investigation on behalf of the defence. The Crown Prosecution Service has the police behind it. When the CPS presents its case it has all of those resources available to it. One wonders whether a criminal defence service with employed defenders will be able to turn behind it, as it were, to ask for investigations to be made, statements to be obtained, witnesses, to be brought to court and so on. Yesterday I completed a case in which the defence called six witnesses, every one of whom had to be interviewed at considerable length in order to obtain statements. One wonders whether the time and resources would be available in a state defender service for such detailed investigation to take place.
There is also the problem of the defendant falling out with the person who is assigned to defend him. What happens? It happens frequently in our courts that a defendant loses confidence in the person who represents him. With the assent of the court the defendant can obtain representation from another counsel. I believe that a public defender service will make that very difficult. I am forced to the view that the independent Bar chosen and instructed by solicitors who are aware of the abilities of the particular barrister, and monitored as to quality by the criminal defence service, which is all part of this Bill, is still the way to proceed. There is nothing to supplant the independent Bar.
I was very much assisted by reading the speech of the Chief Justice of Australia, the Hon. Sir Gerard Brennan, to the Australian Bar Association conference in San Francisco in August 1996. He said this:An absent and independent Bar—how would the voice of the oppressed by heard? Where would one find an effective champion of an unpopular cause? How would the courts be able to function without the distillation of issues by skilled and independent minds; and how would any tendency to judicial tyranny be restrained? The point was well made by Chief Justice McKeekan of British Colombia who said, 'I believe an independent Bar and an independent judiciary are sentries posted by the constitution to guard our people of their danger. A reborn Erskine would remind us that our greatest threat is not from insurrection but rather from earnest, misguided, well intentioned philosophies that suggest that some combination of Jeffersonian democracy and Harvard business school efficiency could organise the legal system better if troublesome judges and lawyers would just get out of the way'".I feel that that is a spirit which informs some of the proposals here.
When talking about the Australian Bar, which faced similar issues to those we face in this Chamber, the learned Chief Justice said this:An Australian Bar will not be created, I hope, merely as a supplier of services in what some economic regulators choose to call the national legal services market. The Bar has far more extensive duties to perform than the provision of services to the so-called consumers. If the Bar were to see itself simply as such a supplier, our national court system would have to be reconstructed with features and safeguards that are presently unnecessary. The survival of the Bar as a separate and independent institution may make little sense to an economist who does not appreciate its social utility and does not foresee the consequences of its destruction. But the possibility that the Bar will not survive is minimal provided the Bar has a sufficient conceit of its function in the maintenance of 899 a free democracy and to that end retains its competence and its independence. It must reject the notion that it is concerned with the marketing of expertise rather than with the use of skill and knowledge in the service of the client and the community".Those are wise words which were spoken recently by the Chief Justice of Australia; and they apply to this situation. I am opposed to a public defender's service which employs barristers or solicitors to defend.
§ Lord Borrie
Does the noble Lord agree that the quotation he gave, and many of his remarks, would be relevant if there were a proposal in the Bill to replace the independent Bar by a state service?
§ Lord Thomas of Gresford
I entirely accept what the noble Lord says. However, things being what they are, it is one step towards the replacement of the independent Bar by a national defender's service of employees. I resist that step.
§ 4.45 p.m.
§ Baroness Mallalieu
Amendment No. 155, and the amendments grouped with it, address a part of the Bill which gives me greater anxiety than any other. In supporting the amendment I must first declare my interest as a practising member of the criminal Bar.
Whatever the scope of the intended use of these provisions, they seem to me to be in danger of breaching three principles which I think important not just to those who defend in criminal cases and those who are accused of crime but to the interests of justice and therefore to the public as a whole. The first principle—it has been referred to—is that the state, which makes the accusation, should not either control the defence of those who are accused by the state or even appear to the accused to do so. The state pays for the defence in legally aided cases. But it must not, either in reality or in perception, call the tune. The ability of an accused person to instruct his or her own independent defence lawyer is the prime safeguard of that principle.
The second principle which is enshrined in Article 6 of the European Convention is that the accused should have the right to be defended by a lawyer of his choosing. The wording of the Bill, we are told, is not itself in breach of that article but I fear its implementation could easily be so in practice, with a defendant being told in effect, "Mr. Bloggins of the criminal defence service will be down to defend you in the morning. Take it or leave it".
There can be no quarrel with the restriction of a publicly funded defendant's right to choose only from those who practise to the required standard or those who have the relevant experience. Of course in reality a lawyer of his choice may well not be the lawyer of his choice. The top Silk may be unavailable. So may his second or even his third choice. But I find it hard to see how the accused in reality would be able to have any meaningful choice of advocate under the proposed salaried defender system, as he does at present when the accused himself—usually, it is true, he acts on the advice of his solicitor—has the opportunity to select the most appropriate available advocate for his particular case.
900 The third principle was well expressed, if I may say so respectfully, by the noble Lord, Lord Hutchinson of Lullington, at Second Reading, at col. 1148 of Hansard of 14th December 1998. He said that,access to the best should be available for the least favoured and the most stressed".But in the cases where salaried defenders are employed, these provisions would effectively restrict access to the most readily available member of the CDS staff. Experiences of public defender systems in other countries have varied. The general view—I have no experience of the system in the United States—is that the system is little short of a disaster. Elsewhere, for example in New Zealand, I understand that the situation is much better. But inevitably the result is directly linked to the amount of money available to it. If the service is run "on the cheap" the result is extremely predictable and those who lack experience or the ability to succeed in private practice gratefully accept the reduced rewards of salaried work. Whatever guarantees may be made today may not be met, or may be unable to be met, by others in the future.
Our present system is widely admired. In my field of practice most of those at the very top of the profession still do legal aid work and are therefore available to defend the poorest defendant in the most serious trouble. That is the great strength of the criminal Bar in England and Wales. We surely must not endanger that.
In his speech at Second Reading, the noble and learned Lord, Lord Falconer, said that it was not his intention that these provisions should apply to the majority of cases. At col. 1200, the noble and learned Lord added:It will more likely be filling gaps and, for example, providing defence services in the magistrates' courts".However, the explanatory notes to the Bill include an alarming prophecy. In relation to Clause 14, it states at page 19:The intention is that, in time"—I ask the Committee to note the words "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".In his speech at col. 1112 of the Official Report of 14th December 1998, the Lord Chancellor said:There should be equality of arms between prosecution and defence".I agree with that, but under the Bill unamended I fear that there will not be equality. The prosecution would remain free in any case to instruct an independent practitioner or a salaried member of staff and to chose who that should be. In contrast, the defence could simply be provided with an employed advocate from the criminal defence service.
There is no convincing evidence, so far as I am aware, that there is a need for this part of the legislation at present. If and when such a need ever arises, that is surely the time for debate and possibly legislation to fill any gap—but not now, when there are ample, independent practitioners ready to do the work.
901 Perhaps I may say, with great respect to the noble and learned Lord the Lord Chancellor, that to take such powers now fuels a rife suspicion that it is intended to set up a cheaper salaried service to undermine and undercut independent practice. We all understand his desire to reduce costs where possible, particularly in the light of other pressing government priorities. But it would surely be ironic if, in seeking to fulfil promises to increase choice and to provide better services in other areas, the seed should be sown now for the destruction of a system which allows our very poorest people the very best there is when their freedom is at stake. I urge the noble and learned Lord to think again about this matter, particularly in the light of the reassurances which he sought to give during earlier stages of the Bill to the independent legal profession, which he has said he is pledged to uphold and support.
§ Lord Hutchinson of Lullington
I rise to support the previous two speakers and I am sorry if I do so at a little length. This is a matter of profound importance. My inquiries of the Bar Council reveal that there was no consultation about the possibility of introducing a salaried public defender. I do not wish to embarrass the noble and learned Lord the Lord Chancellor in front of any of his colleagues, but I cannot help believing that deep down he is a "radical libertarian". If he is that—and I think of the refreshing, open-minded approach to matters of principle and substance that he has brought to our deliberations—he could most honourably listen to the voices which come from behind him and from other parts of the Committee and face the fact that he has gone too far. I recognise that people who sometimes do not go too far often do not get anywhere. Nevertheless, if one goes too far it is important to recognise the fact and set it right.
What is this character, the public defender? He has been introduced into the Bill as a complement to the state prosecutor, who emerges later in the Bill. Is this salaried employee, who is to be assigned to and not chosen by the defendant in jeopardy of his liberty, to be a full-time advocate, providing a specialist service, answerable only to his client, the court and to his own professional body? Where is his daily workplace to be? What are his career prospects?
How complicated this has all become. I am glad to see the noble Lord, Lord Mishcon, in his place because when I was a young man at the Bar the noble Lord occupied an office near Lambeth magistrates' courts. He was, if I may say so, a high street solicitor; the very essence of the provision of legal services to the ordinary person. I was a young man at the Bar and the noble Lord instructed me time and again in small criminal cases. He was a first-class advocate in a magistrates' court. He did not want and had not the time to be a full-time advocate. He did not want to deal with cases which were going for trial and where questions could be asked in a magistrates' court with a view to what was going to happen in the Crown Court. He did not want to be involved in cases which would probably go to the Divisional Court or the Court of Appeal because he had a huge, vital practice looking after members of the public in a wide area of the law.
902 Sometimes the noble Lord would ask me to do cases for nothing; sometimes he would ask me to do cases for a very small fee. There was no problem. He was in his area and I was in mine. We provided a perfectly straightforward, cheap, efficient service to the ordinary person who is often involved in matters of great importance from the point of view of human rights. Why must we have this state salaried defender?
Of course, the noble Lord, Lord Mishcon, has built up a tremendous monument and a wonderful firm of solicitors. I of course, as a mere member of the Bar, have built up nothing. He ended up with Lady Diana. I had to be content with only Lady Chatterley. But there we are—we each had our own areas and the matter was perfectly straightforward. Now we have this massive Bill, the legal aid proposals and the public defender.
We have been vouchsafed only two pieces of information—and the noble Baroness, Lady Mallalieu, has referred to both—as to what the public defender will be. He is to be used only to fill the gaps. So this great new bastion of liberty is to be a part-time, stop-gap advocate. How would the noble and learned Lord the Lord Chancellor feel if, when he had a burst appendix, he was told that a stop-gap, temporary surgeon would look after him when he went into hospital. having been rustled up from the admin block?
The other reference appears on paragraph 97 of the Explanatory Notes. According to that text, the lawyer is to fulfil a more zoological role: that of the guinea pig or the Trojan Horse, to provide,the Commission with better information about the real costs of providing these services";that is, the real costs of providing a defence to a defendant. The Members of the Committee can visualise the picture: "See how cheaply you can do it, George. Cut down the witnesses; avoid any forensic or expert evidence; cut short your cross-examination; make no legal submissions; do not apply for bail; get the defendant to plead guilty; strike a good bargain with your colleague along the road at the CPS; and the judge and Big Brother will be delighted with your performance". It is easy to waste money, but it is even easier to cut costs at the expense of justice.
The Bill focuses on the needs of users and not providers. But what will this user get from the salaried employee operating opposite his colleague in the CPS? I gather that there may even be cross-appointments between the two in order to widen what is called their "mutual experience". What confidence will the user have in the independence and detachment of the advice and that crucial confidences will be kept? What will be the perception of him?
I make no trade union point because a safe, salaried job in the commission would be an attractive proposition for the struggling independent advocate.
Professor Zander, the most revered academic versed in criminal law and a member of the Runciman Committee, pointed out in a recent letter to The Times:It's not to do with the integrity of the lawyer, but everything to do with the institutional and bureaucratic pressures that arise unavoidably from being an employee of an organisation".903 All Members of the Committee will have seen that in the present parlous state of the CPS where, apparently, 70 per cent. of the lawyers are dissatisfied with the quality of their own service in that organisation.
Perhaps I may just enlarge upon that because it is a matter of the greatest importance. I suggest that this provision is another example of the "dumbing down" of the role of the criminal advocate and the place of the criminal law in our constitutional arrangements. A view very much held in the noble and learned Lord's department and in the higher echelons of my profession is that highly qualified lawyers, professionals, should not be wasting their abilities and the taxpayers' money dealing with unsavoury persons in the criminal courts and that their proper place is in the High Court and the Court of Appeal.
It is in the criminal courts—in the magistrates' courts in particular and in the Crown Court—where matters of personal liberty are fought out; where human rights are most abused; and where miscarriages of justice are most outrageous and acute. It is there that the citizen is daily up against the power of the state, the police and the government and it is there that, as the noble Baroness, Lady Mallalieu, said, the user is surely entitled to the service of the best; that is, a whole-time specialist, an independent and dedicated advocate.
While I am on this matter it is worth noting in passing, without breaking the sub judice rules, that all the advocates for both parties in the Pinochet case are from the criminal Bar whereas not one of the seven Law Lords sitting on the matter has had the advantage of a criminal practice. When the user chooses the noble Baroness, Lady Mallalieu, or used to choose my noble friend Lord Wigoder, what did he get? It was someone answerable to no employer, no shareholder, no partner, no firm, with no certainty of income, pension or perks but someone who, on the cab-rank principle, remained available if chosen, whatever his professional status may rise to be, for the most deprived and oppressed. I say to all Members of the Committee that that is surely a principle worth preserving.
Is not the American experience a sufficient warning in itself because the DA and the public defender have brought the criminal process in the United States into disrepute? At the end of this debate on these amendments, I urge the noble and learned Lord to take away this matter and to think about it again. Ministerial assurances butter no parsnips in this Committee.
§ 5 p.m.
§ Lord Bach
I rise with some trepidation because I speak in opposition to so many distinguished lawyers who have spoken already in this debate. I notice that they are all Queen's Counsel. In particular, I am in some trepidation because I follow the noble Lord, Lord Hutchinson of Lullington. When I was a Bar student I would go to the Old Bailey to watch him conduct his cases and I said to myself then—and nothing has changed my mind since—that if I were ever charged with murder, I should want him to fight my case, whether or not I was guilty.
904 I am a barrister in private practice. The cases in which I appear are 100 per cent. criminal cases and in the great majority of those I am defending. I speak against the amendment. Why do I do that? First, there seems to me two particular ways in which the Bar does itself no favours. Many of those who speak on its behalf do so as though being called to the Bar is some kind of spiritual calling; in other words, that there is something about being a member of the Bar which makes it a distinct, different and much higher job than, for example, teachers or doctors. That is an unattractive way in which the Bar goes about defending itself and it does not cut much ice with the general public. The Bar is a distinguished profession and I am proud to be a member of it. However, I do not see it as being a profession which should have special rights and responsibilities, particularly in the modern world.
Secondly, it always seems to be assumed by those who defend the status quo that the Bar, and particularly the criminal Bar, is full of the most distinguished expert counsel; in other words, that there is a quality among those who defend in our magistrates' courts and Crown Courts that is really universal and that there is no distinction between barristers which can be made.
That just is not my experience. The present system quite often sets up weak defence counsel against strong prosecuting counsel. That is under state legal aid as we have it at present. That happens when those charged with criminal offences are supposed to have a wide choice. They sometimes, and often, end up—and I am not talking about the kind of cases in which those who have spoken for the amendment are used to appearing but in the every-day bread-and-butter Crown Court cases—being defended by barristers who, if Members of the Committee heard them, would not be considered to be of the highest quality.
§ Lord Thomas of Gresford
Does not the noble Lord agree that the Bar is the most competitive of professions and that as the complexity of the case increases and its importance increases, so only the competent barrister of the independent Bar is instructed? Does he not agree also that in a criminal defence service with employed barristers, the risk is that people who are not up to the job will appoint themselves to defend and find themselves at a distinct disadvantage against a strong prosecutor?
§ Lord Bach
Perhaps I may say in reply that at present the competition which of course exists at the Bar, as it does in other professions—and sometimes we lawyers tend to forget that—is not such that if you are not really first rate you will not obtain good work. It does not happen like that. It very much depends on what chambers you are in and on the returns system, about which I intend to say more in a few moments. To think that somehow pure competition runs through the barristers' profession is to hide one's face from what actually happens.
Of course, at the very top of the profession, from which the noble Lord speaks, competition is ruthless and the very best get to the very top. It is not always so lower down.
905 I wish to turn to the returns system because the point has been made by the noble Lord, Lord Thomas of Gresford, that commonly, there is a relationship between the solicitor and the chosen counsel in a defence case which means that the two of them undertake a great deal of research together before the matter comes to trial.
That may be so in cases of the utmost seriousness. It may be so in cases which will take a long time to try. It does not happen as a matter of course in the ordinary Crown Court case because the barrister may well receive the brief at the very last minute, so there is no question of the barrister and the solicitor together carrying out the research to which the noble Lord referred. There is also the prospect of returns, which happens a great deal and sometimes at extremely short notice. I am referring to every-day, bread-and-butter Crown Court trials. To pretend that there is some kind of mystical relationship between solicitor and barrister in regard to criminal cases which does not exist elsewhere is, in the majority of cases, wrong.
There was also talk about collegiate undertaking and understanding which would occur between a Crown prosecutor and a summary defender, as though that is something that is completely unheard of in our present arrangements. Of course it is not to be approved when it takes place; but one only needs to visit any robing room in any Crown Court in this country to know that bargaining takes place between an independent prosecuting barrister and an independent defence barrister. Sometimes it is for the convenience of the offender; sometimes it is not. To suggest that that is a problem which will suddenly emerge if we introduce salaried defenders seems to me again to be hiding away from what actually happens day by day in our courts.
Also, it has been presumed that the salaried defender, if he or she comes into being, will necessarily be a young lawyer at the start of a career or a more senior lawyer who has failed in private practice. For my part I can see no reason why that should be the case. As I understand it, in some countries where salaried defenders work alongside independent defenders, it is a distinguished career; it is one which may well lead to the Bench in due course; it is one in which only lawyers who have been in practice for a certain number of years can enter. So there is no need today for us to panic and think, "If they are salaried defenders, they will be either inexperienced or failed members of the Bar".
Much of the reaction against this "modest" step—no-one is proposing that our system of centuries should be altered overnight—is very much overblown. The Bar and those who represent its interests should be much more self-confident about the future than they sometimes give the impression of being. The Bar has survived many things. There will always be a place for an independent Bar, particularly in the criminal defence field. Why this modest step should gain such opprobrium from so many Members of the Committee I find difficult to understand. I hope that in due course the amendments will be withdrawn.
§ 5.15 p.m.
§ Lord Phillips of Sudbury
I had not intended to speak in this debate but was rather provoked by the noble Lord, Lord Bach, into saying just a few words. I do so from the vantage point of being a practising solicitor; in fact, it is 40 years since I first briefed a young barrister called Michael Havers on the South-Eastern Circuit.
I want to refer to what the noble Lord said in relation to the reference of my noble friend Lord Hutchinson regarding the almost "spiritual" quality of the Bar. I detected a note of scepticism, if not scorn, in that remark. Indeed, one can seriously overdo the "noble calling" aspect of this debate; on the other hand, one can understate the importance of the sense of vocation which should and does still exist in the Bar and in defenders at the Bar in relation to their work.
I endorse entirely what was said by the noble Lord, Lord Thomas of Gresford. He read from the speech of the Lord Chief Justice of Australia, which was very relevant. It is easy to underestimate the change in ethos that both branches of the legal profession—particularly my branch—are and have been rapidly undergoing in the past decade or two. It is easy also to underestimate the impact of what I would call the "institutionalisation" of the provision of legal services at all levels. That is a reality. While in no way wishing to denigrate those who work in organisations, I would point out as strongly as I can the virtue I see in the independence of the advocate at the Bar; the ruggedness, often bloody-mindedness and the eccentricity, as some would think, of the independent advocate.
As my noble friend Lord Hutchinson said, lawyers receive no perks, no pensions, no nothing. They exist in a highly-competitive environment and we must consider with care the prospect of replacing such a person whose talents and characteristics of independence are so crucial to the defence process by someone of no doubt equal intellectual capability and integrity, but nonetheless operating within an organisation that is subject to all the constant pressures of price, value for money and so forth. It is too easy to underestimate that.
We engage in short-term economies at the expense of the larger interests. The number of wrongful convictions that we have suffered in our system in recent years of the most notorious kind had huge consequences, not only in terms of respect for the system, but also in terms of the expensive repercussions which one can never quantify because they spin off in all directions—the police, the courts and so forth. I do not believe that this is an area where we should either disregard or underestimate the factors to which I referred. Therefore with great respect to the noble Lord, Lord Bach, who speaks from day-to-day experience, as a solicitor I endorse strongly what has been said on the other side of the debate.
I conclude by saying that of course the present system is not perfect; of course there are returns; of course there are incompetent advocates. But that is not what we are discussing. No perfect system exists. We are discussing a system which loses perhaps its most essential element 907 for any prospect of improvement; that is, absolute, rugged, unquestionable independence on the part of advocates.
§ Baroness Kennedy of The Shaws
My views on this matter were expressed the last time we were together at Second Reading. I expressed them forcefully then and do so again today.
My starting point is that if it is even a possibility that our law officers might introduce a scheme such as the public defender system, it is not appropriate for it to be kept as something which exists as a possibility, to be brought into being at some later stage. It should be contained within a separate Bill, brought before this Chamber and discussed in a debate which allows the public to know what is going on. I say that because the Access to Justice Bill contains many good aspects. On these Benches there are a number of people who, with good will, are supportive of the Government in seeking to widen access to justice, but to slide into such a Bill something as undermining of the justice system as a public defender system is wholly inappropriate and should not be taking place in this way.
I do not demur from holding in regard what I consider to be a vocation. I find it distasteful to sit in this Chamber and hear the profession to which I belong spoken of as if it were some sort of corner shop. In saying that, I in no way demean those involved in the world of entrepreneurship, but I believe that there is something special about being a member of a profession and seeking to fulfil that role honourably.
I do not accept the criticisms of the noble Lord, Lord Bach, that lawyers are somehow seeking to describe their role as some sort of calling. Being a lawyer and doing that well makes special demands on us. If we are to serve our clients well, we have to go the extra mile. I did not go into the law to make large sums of money but because I believed that I might be able to make a difference to people's lives. I have always seen my role in the law as, and my practice in the law has always been about, representing those parts of our community which have little voice. Most of my clients have been the poor, the disadvantaged, and those who have experienced discrimination in one way or another. It is the role of the Lord Chancellor and the Law Officers within the system to protect those persons, particularly because they often have little support in the wider community.
Making representations on behalf of those who may have criminal records and who seek legal aid in criminal cases does not often summon up much support from the public. When the noble and learned Lord the Lord Chancellor tells us that he wants to save money for other services such as health and education, the majority of people will have great sympathy with him. Most of us in this Chamber would share that view. However, the Lord Chancellor and the Law Officers also have the role of protecting the liberty of the subject; of ensuring that the system of justice functions well for those who are disadvantaged and that those who are put on trial are 908 well represented, and of being the champions of the honour which there has to be in our profession. Their role is not, I hope, to ridicule it in any way.
So, I can proudly say that I consider myself to be part of an honourable profession. My colleagues here today who are expressing concern about this are not speaking from self-interest—it is so easy to insist that that is the case in our discussions on legal aid and "lawyering"—they are speaking about the disadvantaged and the reasons why legal aid was brought into being. It was to protect the system and its integrity and to ensure that those who are less well off have as much right to justice as anybody else.
Several miscarriages of justice have recently been exposed. Very often the lawyers who acted in those cases were those who went that extra mile in discovering evidence which showed that things had gone wrong. There are serious risks in introducing a system which does not allow for such independent, spirited activity. I believe that that would become lost in a system of salaried lawyers such as has been spoken of today.
How is choice preserved in a system such as that described? How is quality maintained? If the question is, as has been suggested by the noble Lord, Lord Bach, that at the lower end of the scale many people who are not terribly skilled are representing the disadvantaged, surely the challenge is to ensure that quality is improved—but not by creating a salaried system in which lesser quality may be institutionalised. There are other ways of improving a system and ensuring that people are well represented.
At the moment—I am afraid that I must operate in a world which is very different from that of the noble Lord, Lord Bach—the profession is being pursued by many young people as a chosen career. The numbers of people applying to chambers such as mine are countless. The selection process at that stage means that only the best get through, and the best from the widest of choices now that so many of the new universities are providing us with law graduates.
The processes of becoming a practitioner at the Bar are such that there will be fewer and fewer "less able" practitioners, as described by the noble Lord, Lord Bach. I find it most surprising that at a time when the market is being extolled by governments (of whatever political complexion), we are seeking also to move away from the independence of the Bar and the very market which is being so promoted everywhere else. Better performance and competition is the name of the game at the Bar. Those who survive and do well in the profession are those who hone their talents, and continue to do so daily, in the courtrooms.
It is a matter of great sadness to me that this proposal has been included in the Bill. I can only imagine that it was to see whether there was a way of saving public funds. However, there are other ways of saving public funds; this is not the way to do it. It is not necessary for me to repeat what has been said far more effectively by others. All that I would say is that there are ways of driving up quality, if that is what concerns those behind this Bill. However, I urge that this matter 909 is not pursued at this time. If there is a serious intention to create a public defender system, I urge that it is contained within a separate Bill and that this House and the other place are allowed to debate it properly, with the public fully aware of the consequences of such an introduction for the interests of justice.
In conclusion, I have seen at close quarters this system working in other parts of the world. It is all very well for the Government to say that it would be introduced only at the lowest level of case, but how can we prevent the creeping nature of such a system? How do we prevent it creating a two-tier system of justice which, inevitably, is what has happened in other places where it has come into being?
§ Lord Wigoder
The noble Lord, Lord Bach, put forward a number of criticisms of the Bar which have been heard before and which undoubtedly have some validity. However, the noble Lord has compared the Bar as it is now with a sort of ideal that some people create in their minds. The real test is how do we compare the Bar as it is now with how a public defender and public prosecutor service would operate. The answer then becomes rather different.
The noble Lord mentioned three matters. First, he said, quite rightly, that not everybody at the criminal Bar is a person of high calibre. Of course, there are beginners at the Bar and people who last for several years before finally giving up the struggle. All that one can say is that at least the average member of the criminal Bar is likely to be a person of higher calibre than the average member of a state prosecution or defence service. That is not because they work in the state prosecution or defence service, but because the average member of the Bar has survived in a highly competitive world and could not have done so unless he was a person of real ability. The same does not necessarily apply to members of state prosecution or defence services.
The second point which the noble Lord raised is that there are trials in which a private barrister is pitted against an independently instructed prosecutor, and one is very much superior to the other. If I may say so, that is abundantly obvious. However, what will happen if there is a state defender and a state prosecutor? Will the person in charge of the state defender ring the Director of Public Prosecutions and say, "In the case of Jones tomorrow, we are putting up only a class 5 chap. Would you be good enough to put up a class 5 chap as well and then it will all be fair?". Life is not like that. If there were a state prosecutor and a state defender there would be exactly the same disparities as one inevitably gets from time to time now.
The third argument is the old one that as the Bar functions at present there are sometimes problems with the late return of briefs and counsel who are inadequately instructed. That is undoubtedly true. However, it is fair to say that in a well-organised set of chambers if counsel has to appear at the last minute he at least gets the benefit of counsel who were instructed prior to the date of the hearing. His replacement should be given the benefit of his experience. It is not the Bar's problem really, but more of the organisation of the 910 courts. The Bar becomes involved in cases which are expected to last two or three days. The individual members of the Bar have their commitments for the following days. Suddenly a witness becomes ill or a case continues two or three days longer than anticipated. There is then a problem with a barrister who has been briefed in perfectly good faith, weeks in advance, in the apparent knowledge that he would be available for a particular trial. I do not blame the judge for not saying, "In that case we shall adjourn for two or three days" and do nothing but have a couple of rounds of golf or whatever it may be while awaiting counsel to become free of his previous obligation. With the way the listing system works there is no alternative but for the Bar to find itself with such problems.
A state defence or prosecuting solicitor or barrister will find exactly the same problems. One frequently has been in a magistrates' court when the prosecuting solicitor has arrived with an armful of briefs which have been handed out that morning because it was the turn of that particular solicitor to attend that particular court, but with no opportunity for preparation. One will get exactly the same problems with a state defence service because one will become involved in a case which has gone on longer than anticipated and a subsequent case has to be handed over to a colleague.
I suggest to the noble Lord, Lord Bach, that the criticisms he made should not be set against an ideal Bar in an ideal world, but against the alternative which is being put forward in this Bill of a state-employed, salaried defender and a state-employed, salaried prosecutor. I believe that if he looks at the matter impartially what can be said in favour of the alternatives in this Bill is that they are probably cheaper. But against the alternatives there is the service which the independent Bar has given and continues to give.
§ 5.30 p.m.
§ Lord Clinton-Davis
I have listened with very great care to all the lawyers who have spoken in this debate and in particular to the noble Lord, Lord Hutchinson, who paid a very valid tribute to my noble friend Lord Mishcon. I was once his articled clerk. On the very first day of my articles I went to a conference with the noble Lord, Lord Hutchinson. No one had instructed me as to what I was supposed to do. I thought that I ought to intervene from time to time as I considered that to be an obligation. I was asked by the noble Lord. Lord Hutchinson, to remain behind after the conference. He said, "Mr. Clinton-Davis, there is no mandatory requirement to intervene quite as much as you did". I took that to heart afterwards.
I am not persuaded that we should not go ahead with this scheme provided that it is very carefully monitored. We are not living in a situation where we can necessarily take on board that which applies in Australia, New Zealand or the United States of America. We can build on our own experience. I do not see the dire consequences that have been portrayed as necessarily becoming a reality. Until 1984 I also practised in the criminal courts. I gained quite a lot of experience there as a solicitor advocate. But when I wanted to employ counsel situations frequently arose 911 about returns which were embarrassing not so much to me as a solicitor, because I was not doing my own advocacy, but to the person whom I represented. I had never seen the person before. He might have had conferences with the barrister who was supposed to represent him. That is very embarrassing not simply in terms of the relationship between the client, solicitor and barrister concerned, but because it also brings the law into some measure of contempt as regards the lay person. We have not heard too much about that.
Of course, it is quite right that in certain circumstances one wonders whether someone in a salaried occupation would fight quite so hard to expose injustice in the way in that it has been over the past few years in particular. We should listen very carefully to the evidence which has been garnered. As regards advocacy, we should apply very high standards which, as the noble Lord, Lord Bach, said, are not always present in either of our professions. One has only to go into court to know that. People get away with rather low standards. We should be concerned about that. The fact remains that it is an important element of the whole argument that we should retain the standards of the independent Bar, and that is what I understood was the subject of the previous debate.
I ask my noble and learned friend what steps he will take to ensure that some of the dire consequences which have been mentioned in this debate by other Members of the Committee will be carefully monitored and that the whole system will be watched carefully. I hope that evidence will be accumulated in order to ensure that such situations do not arise.
There is one other factor which has not been mentioned as regards people employed in a salaried service. I do not want to make too much of it. They can accumulate for themselves quite a lot of experience which can be put to use in the private sector once the learning curve has been undertaken. In the United States one of the great benefits of having young people in particular working in the department of justice, in the district attorney's office or in the security and exchange commission, is that they have some measure of security while undertaking that process of education. That can most certainly be put to the advantage of their clients in the private sector later on without compromising their position. High standards do exist in the United States. It is quite wrong that people write off the experience of other countries as a colossal failure. There is no evidence of that. There is good and bad.
Subject to the caveat which I have entered and to which I hope my noble friend will respond positively and affirmatively, we should engage in what I regard as a useful experiment which could bring better value to the lay client than sometimes exists at the present time. It is not all good or all bad. Many of those who have argued against my noble and learned friend's proposition have adduced good arguments which I find 912 very persuasive. But there are good arguments on the other side, too. A balance needs to be maintained and to do that one needs a chip on both shoulders.
This, for me, is a nostalgic occasion because I was called to the Bar 66 years ago this very evening.
In fact, it has been a nostalgic occasion for several reasons. I once had the privilege and pleasure of leading the noble Lord, Lord Wigoder, when, while prosecuting a criminal case at Hertford Assizes, we embarked upon a scheme which had not been tried for 200 years and which subsequently became an acceptable part of the law. Moreover, the noble Baroness, Lady Mallalieu, did her first brief in front of me when I was Recorder of Guildford.
However, I wish to be brief. When I first looked at the Bill I was scared. I really thought that it would lead to a deterioration of standards. But, as we have proceeded in Committee, I have become more and more encouraged by the fact that the noble and learned Lord the Lord Chancellor has accepted the views of those who have criticised the Bill. I hope that he will continue to do so.
§ Baroness Crawley
I am not a member of the legal profession. However, as the noble Lord, Lord Renton, has just told us that this evening is an anniversary of his being called to the Bar, I have to say that my father was also called to the bar as a young man; but only to start a lifetime of serving alcoholic beverages to the great British public.
As a non-lawyer, I hope that Members of the Committee will forgive my boldness in questioning the wisdom of all these amendments, which seek to remove from the Bill the right of the commission to employ lawyers. From listening to noble Lords and noble and learned Lords, it would appear that those supporting the amendments believe that the present system is working, by and large, perfectly satisfactorily and that, therefore, "If it ain't broke, don't mend it".
However, after 15 years of representing constituents who have not always felt that they have been legally defended to the highest possible standard on every occasion, I believe that in no profession can we be complacent and think that change could never improve effectiveness; and that it could not, in this case, achieve greater access to justice for the public by providing a mixed defender system.
Some noble Lords have talked about "thin edge of the wedgery" in this debate, but we are talking about a mixed private and public defender system and not about one overtaking the other. I believe that one of the strengths of that mixed system is the fact that it has within it the offer of competition and complementarity. The present system, unamended, allows a monopoly of private practice to exist, whereas a mixed representation of public and private may well be a significant improvement in terms of efficiency and—let us say it 913 out loud—value for money. That is the responsibility of this Chamber, as well as ensuring that the highest possible standards of access to justice exist.
In the offer that a mixed system may give us of efficiency and value for money, I believe that we should consider some of the more recent research which has been carried out in other countries and look at how mixed systems have actually operated. I recommend to Members of the Committee the document, Legal Aid Delivery Systems published in 1997, as an unemotional reference to how this system works in other countries.
The present system has no formal quality assurance built into it. Although noble Lords supporting these amendments may say that the practice of solicitors of only referring cases to banisters in whom they have confidence is a form of quality assurance—indeed, a recognition that the market cannot lie—I contend that people's civil liberties are too important to be left to the vagaries of such a questionable market if a better system is on offer. Indeed, I believe that a better system is on offer in the Bill.
I have in mind a better system where the cost of the salaried service will provide a bench-mark which the CDS can use to assess whether the prices charged by the private lawyers are reasonable. Members of the Committee may also wish to reflect on the fact that, while the present totally private system is about lawyers running a business, a salaried service would mean lawyers would he freed from the burdens of running a business—that is to say, the burdens of paying the rent, touting for business, sorting out car park space entitlement and all the other important matters involved when running a business—and would, therefore, be able to concentrate more closely on the job of securing justice for people. More importantly, as stated in the White Paper, a salaried defender system would expose and fill the gaps in the system where too few local solicitors' firms and barristers' chambers now participate. I urge my noble and learned friend the Lord Chancellor to resist these amendments enthusiastically.
§ 5.45 p.m.
In listening to the powerful and eloquent speeches that have been made, I have more and more wondered whether they are tilting at the right windmill. The amendments now before the Committee seek to leave out the power of the commission to use salaried lawyers from its own department; that is to say, one method of fulfilling its duty. If the amendments are passed the commission will not be allowed to provide advice and assistance or representation by means of salaried defenders, even when the accused wants it.
It seems to me that what those who have spoken are against is not that that alternative may be available but the fact that, in certain circumstances, an accused may be forced to have such a state defender. Surely the mischief that gives rise to that possibility is to be found in Clause 14(6), which allows the Lord Chancellor to prescribe that you could only have representatives of a "prescribed description". If that subsection were to be deleted, as suggested in Amendment No. 170, the possibility of providing a salaried defender as an alternative would become innocuous.
914 I ask the noble and learned Lord the Lord Chancellor not merely to express his attitude to the amendments, but also to say whether he is minded to accept Amendment No. 170; or whether he is at least prepared to ensure that the regulations cannot produce a situation in which a person could be compelled to have a state defender if he does not want one.
§ Lord Hacking
When my noble and learned friend Lord Archer introduced the amendments he described them as probing amendments. Indeed, after a debate lasting one hour and 27 minutes, I believe it can now be said that the amendments have had a good probing as, indeed, have the issues involved. However, as the noble Viscount just said, if we were to pass the amendments one means of the commission to provide legal services would be removed. For that reason, and that reason alone, I think it would be undesirable for these amendments to be accepted. In any case they are probing amendments and we have treated them as such.
At this stage in our debate we should consider the overall objectives of the Government in bringing forward the legal defence service. The first objective of the Government is to bring taxpayers' money properly into control. There is a problem. Paragraph 6.6 of the Government's White Paper states,In 1992–93, the taxpayer spent a total of £507 million on all forms of criminal legal aid; by 1997–98, the figure was £733 million. This is an increase of 44 per cent., compared to general inflation of 13 per cent.".Paragraph 6.7 states that,42 per cent. of legal aid spending in the Crown Court (almost £116 million) was on just … 1 per cent. of the cases".When the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor, I was wholly supportive of his measures in this area. This was a concern that he and his department frequently expressed. There has to be a remedy for that problem. We simply cannot go on spending such large sums of money on a legal resource when the Government need to spend money on many other resources; for example, education and health.
The second objective of the Government is to bring quality of service to the criminal defence process. As my noble friend Lord Clinton-Davis rightly said, we should be concerned about low standards. Therefore the proposal that there should be an assessment under the contracting system of the quality of the service of the criminal defender from the private sector is a measure that I believe is sensible and highly desirable.
The third objective of the Government is to provide legal advice and assistance at all levels. Let us start at the level of the high street. Yesterday morning I was walking in Clerkenwell on my way to attend an arbitration. I walked up St. John's Street in Clerkenwell and I noticed a surprisingly long queue of citizens—there must have been 15 or 16 of them—waiting outside a citizens advice bureau for the door to open to gain access to the advice that was on offer there. It was because the citizens advice bureau, which does much noble work, was found to lack sufficient legal expertise that funded law centres were established with salaried lawyers. The proposal in this Bill for criminal law 915 centres to be set up seems to me a sensible step. There is also a need for citizens to obtain advice on criminal matters from salaried lawyers. That, incidentally, would be cut out altogether if these amendments reached the statute book.
The fourth objective of the Government is to seek to ensure independent representation in court. I well remember the setting up of the Crown Prosecution Service. At the time I was a practising member of the Bar. All kinds of remarks were made as regards that service lacking independence. That has not proved to be the case. There have been deficiencies in the Crown Prosecution Service, but not as regards its independence.
It seems therefore, looking at the overall proposals of the Government, that it would be entirely sensible to have available salaried lawyers to represent defendants where needed. My noble and learned friend is not proposing a wholesale salaried system or the destruction of the Bar. He is merely proposing to run a few pilot schemes and to give the legal services commission the ability to use salaried lawyers in certain areas where there is a deficiency of defence lawyers; for example, in certain rural areas. This is not a case of putting a great hammer to a nut. It is simply a case of providing a wide scope of resource. On that basis I support my noble and learned friend.
§ The Lord Chancellor
These amendments would remove the power of the commission to secure advice, assistance and representation in criminal cases by itself employing lawyers. It has been suggested that behind the provisions in Clauses 13 and 14 is some kind of ambition on the part of the Government to introduce a wholly salaried service in place of private practitioners. That, it is said, would result in a serious erosion of the independence and quality of defenders. Let me assure those who nourish such fears that they are mistaken.
It is patently not the case that being dependent on the state for funding or for payment of one's salary undermines independence. I believe that the public think that barristers claim too much for themselves when they claim that only they can be honourably independent, and that they insult those who are in employment by maintaining that they cannot be honourably independent. I go further. I would say that many members of the public think that this is special pleading by banisters.
Is it to be suggested that our judges, who are conspicuously independent, lack independence because they are employed by the state, or that prosecuting counsel, members of the independent Bar, instructed and paid by the Crown Prosecution Service case by case, with the overwhelming bulk of their practices coming from that single source, lack independence? Yet from the standpoint of precariousness such prosecutors are in a more precarious position and in theory subject to greater risk of pressure than a salaried lawyer who has job protection, a steady, predictable salary and other safeguards, including Clause 36 of the Bill. That clause will give statutory force to the overriding duty of all advocates to the court to act in the interests of justice 916 and comply with their professional rules of conduct so that salaried lawyers will owe the same duties to their clients and the courts as private practitioners.
In addition, earlier in our discussions this afternoon I readily accepted in principle the proposal of the noble and learned Lord, Lord Ackner, to introduce a statutory code of practice for salaried defenders. I should perhaps remind the Committee that any government employed lawyer has a right of access to the Attorney-General, the leader of the Bar, if he feels he is being pressured to act improperly. I also intend that salaried lawyers will be responsible within their organisation to a professional head to reduce even further any risk to their professional independence. Some Members of the Committee may have other specific ideas about how the independence of salaried defenders could be further guaranteed. If so, I should be more than ready to consider them. However, what I am not willing to do is to exclude the possibility of salaried lawyers from the Bill.
The noble Baroness, Lady Kennedy, if I may say so, casts herself in a quite suitably heroic role fighting for the disadvantaged. Many of us who are lawyers have done this, and in many areas of the law beyond the criminal law.
Most salaried defenders, however, would represent the disadvantaged in just the same way as independent banisters. Nor do I accept that dedicated lawyers of quality, integrity and commitment to their clients are incapable of being attracted to become salaried defenders. The noble Baroness, Lady Kennedy, wants this modest power to be shelved and brought forward, if need be, in a special, separate Bill. I could see the point of that if I was proposing a salaried defender service to replace the independent Bar—but, emphatically, I am not doing that.
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.
§ 6 p.m.
§ Lord Thomas of Gresford
Does the noble and learned Lord envisage a competitive situation—that is to say, a free choice for an accused person either to have the employed defender under the criminal defence system or to have an independent counsel and solicitor team which is paid for by that system?
§ The Lord Chancellor
I wonder why the noble Lord, Lord Thomas of Gresford, thought that he needed to intervene to ask me that question. Of course I would not let this debate pass without expressing a view on that point. I will do so, in due time, in my reply to this debate.
I see us starting, very small, with pilots. I would expect the pilots to cover the solicitor litigators' role and perhaps advocacy in the magistrates' court. We would of course want to consult on the details and, if we 917 decided to extend the scheme, it would only be after we have had experience and the opportunity of a well-informed debate based on that experience. I give my noble friend Lord Clinton Davis, who is following our discussions closely, the assurance that we would start with small pilots and monitor them precisely to see how effective our arrangements were in avoiding the risk to which this debate has called attention. It would only be against that background that decisions could be taken—on evidence rather than heresay.
The noble Lord, Lord Thomas of Gresford, in his intervention and the noble Viscount, Lord Bledisloe, in his contribution asked whether there would always be a choice. The appropriate time to discuss this, as the noble Viscount envisaged, is when we come to Amendment No. 170, when we will have a detailed discussion. Running ahead, there will be certain, special and limited circumstances when there cannot be a choice. That will be discussed in the context of that amendment. We certainly intend that generally there will be a choice between several quality-assured providers, contracted providers and salaried defenders.
One reason this will happen in practice is because both contracted firms and salaried defenders will take their turn as duty solicitors at the police station and the magistrates' court. That is where many people first meet the representative they choose to use. Of course people will not be required to use the police station duty solicitor at their hearing in the magistrates' court unless they choose. In practice, and subject to the detailed explanations we will give in relation to Amendment No. 170, there will be a choice in almost all circumstances.
Running ahead, it might be desirable in order to have an effective pilot, in some cases not to have a choice—for example, in rural areas where no suitable private firm of the requisite quality exists, and in certain other cases. In rape cases, where the defendant is unrepresented, it might be necessary to assign counsel on the day to cross-examine in order to avoid the delay of an adjournment. But generally there will be a choice.
As I say, I am not willing to exclude from the Bill the possibility of salaried lawyers. They could be the most effective way of meeting need where otherwise there might be a gap in provision—for instance, in rural areas or deprived inner-city areas where there is limited or no access to other good quality defence services.
Those who are prejudiced against the concept of public defender systems will not have it that they can ever be good. But of course the same can be said of private practitioners in some countries. It does not follow that all private practitioners are bad or that all salaried providers of services are bad simply because bad examples can be found around the world. There are also good examples of quality salaried services in countries such as Canada. In Quebec 55 per cent. of cases are handled by staff lawyers. Clients there are generally allowed a choice of salaried or private lawyer, and experience has shown that the majority of clients express a preference for a staff lawyer. Indeed, despite the lower average case costs, staff lawyers in Canada were found to achieve broadly similar or slightly better 918 outcomes for their clients than private lawyers. Clients of staff lawyers were neither more nor less likely to be convicted than clients of private lawyers.
It is vital that defenders, whether they are private or salaried, should be properly resourced, qualified and supervised. In addition to meeting gaps, one reason why I believe an element of salaried service would be beneficial is that in a mixed economy of private practitioners and salaried defenders we would be able to bench-mark each against the other in terms of quality and cost.
At the outset of our discussions this afternoon there were complaints that the proposal for a salaried defender service has been sprung on the legal world. The noble Lord, Lord Windlesham, suggested that—I see that he is not now in his place. I can only assume that those who feel taken by surprise have not been reading the newspapers and the legal journals, much less listening to the speeches that I and my Minister of State have been making over the past year or more. That may be a very wise allocation of their time but it does not lie in their mouths to say that this very limited proposal has been sprung on an unsuspecting legal world.
Finally, I think I should turn to the amendment put down by the noble and learned Lords, Lord Ackner and Lord Archer of Sandwell, which will remove altogether the power of the commission in Clause 13(2)(g) to do anything else that it considers appropriate for funding advice and assistance. That amendment is part of this grouping too. The amendment would remove what I regard as an essential element of flexibility. Gaps may arise in the provision of advice and assistance in ways that we cannot now foresee. Opportunities, as circumstances change, may present themselves which are not precisely or expressly encompassed by the Bill. So I think that we would risk denying those in need of the benefits that the future may offer if we were vain enough to think that we could identify in this Bill specifically all the ways in which we may be able to secure good quality and cost-effective advice in the future. On that basis, I invite the noble and learned Lord to withdraw the amendment.
§ Lord Ackner
Before my noble and learned friend sits down, am I right in thinking that one of the main purposes of the public defender system is to establish whether that system can provide an adequate service at significantly less cost than the private system; and if so established, does that mean that the ratio which my noble and learned friend has already described will move more and more in favour of the public defender system?
§ The Lord Chancellor
I do not deny that the employment of salaried defenders will afford a useful benchmark in terms of quality and cost. I have to say to the noble and learned Lord that I operate within a controlled budget. The truth is that the only money that is left for civil legal aid is what is left over out of that budget after the requirements of criminal legal aid have been met, as those requirements are underpinned, as they should be, by international obligations. But the simple truth is that I have to seek to deliver economy 919 and quality together in the provision of criminal legal services. I do regard the employment of salaried lawyers as providing a useful benchmark in relation to that critical mix of quality and cost-effectiveness, both of which are essential.
I am not good at looking very, very long distances into the future but I would expect that salaried lawyers would be in the highest degree unlikely to do more than the lesser cases and never to undertake—it would be very unlikely that they would ever undertake—cases of major difficulty.
§ Lord Hutchinson of Lullington
Looking into the future, perhaps I may ask the noble and learned Lord one question. He has told the Committee that he has no intention of bringing in a salaried defender scheme. I accept that entirely. But if one of his successors intended and desired to do so and these clauses remain in the Bill, would he be able to do so?
§ The Lord Chancellor
Subject to the objectives of the Bill, the commission would have the powers which are in the Bill. That is certainly so. The power is there for the commission to employ salaried lawyers for the purposes of defence services. But I can do no better than indicate to your Lordships what I anticipate for the future.
§ 6.15 p.m.
§ Lord Archer of Sandwell
I now understand how Pandora must have felt. This debate began with what I declared an hour and fifty-four minutes ago to be some probing amendments. I am most grateful to all the noble Lords who participated in the debate which, whatever other controversy there may be, I think we would all agree has been a fascinating and very informative debate.
I set out to ask some questions and to indicate some anxieties. There was even at the back of my mind a hope that we might quietly woo my noble and learned friend into meeting some of those anxieties. I feel a little like someone who suggested a trip round the bay and now finds himself sailing with Columbus. I say at once that I do not endorse everything that has been said in support of my amendment. There may well be a case for salaried employees giving some advice in appropriate circumstances. That is done every day of the week in numerous citizens advice bureaux and in numerous law centres. It may be appropriate in some cases for some people who are not members of the practising profession to represent litigants. It is done in a number of tribunals and, so far as I am aware, it is done without complaint. So I would not go as far as some noble Lords who have participated in the debate, although I am grateful to them for their support.
I think that there are some very real dangers and clearly my noble and learned friend has them in mind and will address them later. I agree with the noble Viscount, Lord Bledisloe, that the appropriate place to discuss them may well be on Amendment No. 170. I say with great humility that I hope your Lordships will excuse me. I have an unavoidable commitment elsewhere and so I will not be able to participate in that debate. However, I understand that the noble Lord, Lord Goodhart, will kindly move the amendment in my place. I shall certainly read with great interest what has been said.
920 Beyond that, I think it may be wise for us to read what has been said and to consider it in tranquillity. I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Thomas of Gresford had given notice of his intention to move Amendment No. 156:
§ Page 9, line 15, leave out from beginning to second ("or").
§ The noble Lord said: I do not propose to move this amendment. I have not as yet cited America and I consider that there are many matters which will have to be looked at again. Therefore, I shall be coming back to this series of amendments at the Report stage.
§ [Amendment No. 156 not moved.]
§ [Amendments Nos. 157 to 161 not moved.]
§ Clause 13, as amended, agreed to.
§ Clause 14 [Representation]:
§ [Amendments Nos. 162 to 169 not moved.]
§ Lord Ackner moved Amendment No. 170:
§ Page 10, line 7, leave out subsection (6).
§ The noble and learned Lord said: This matter was referred to during the debates that we have just had as being the right point at which to consider the extent to which a member of the public who requires to be assisted in a defence can be compelled to have a public defender, so that his choice which presently exists, as to how he is defended is taken away from him.
§ There has been sufficient discussion on this subject for me merely to say at this stage that I wish to move the amendment.
§ The Deputy Chairman of Committees (Baroness Lockwood)
I must point out that if this amendment is agreed to, I cannot call Amendments Nos. 171 to 176 inclusive under the pre-emption rule.
In his extremely helpful reply on the previous amendment, the noble and learned Lord indicated his intention to prescribe use of the public defender service only in a very limited number of cases. However, in his reply to the noble Lord, Lord Hutchinson of Lullington, he accepted that as matters presently stand, a future Lord Chancellor could say that the defender service was to be the only recourse available to the accused over the whole spectrum of cases. That is the right answer in the light of subsection (6)(c). Under that provision a future Lord Chancellor could say that in all cases except murder an accused may select only a member of the group of salaried lawyers. It is that mischief that rightly concerns a large number of Members of the Committee. I hope that the noble and learned Lord will be able to tell the Committee that he will in due course at least amend subsection (6) so that it could not have that wide and highly undesirable effect.
§ Baroness Scotland of Asthal
I did not think that I should be moved to contribute to the debate, either in relation to the previous amendment or this one. However, for the past few moments I have found myself somewhat troubled. That is because I am in sympathy with many of 921 the concerns raised during our debates today; it is also because of the importance of Amendment No. 170 in relation to the preservation of choice.
Choice is at the core of this legislation. The Bill deals with access to justice and the improvement of people's ability to receive appropriate representation. Part of our debate has related to those who are currently at the independent Bar and solicitors not being subject to the pressures involved in accepting state-funded cases.
That is not entirely correct. Independent prosecutors already feel pressure from the CPS and those who instruct them to behave in a certain way. There are approved lists. If people do not comply with the standards that are set for them, they may be dropped from the list. One of the reasons for being dropped is not complying with the way in which those who prosecute see the management of the case. Therefore, independence is already under threat, and we do not yet have a defence system.
If we do not strengthen this provision, I very much fear that choice, which is so important and is at the centre of the Bill, will evaporate.
§ Lord Thomas of Gresford
Amendment No. 173, grouped with this amendment, stands in my name. The amendment purports to exclude from the Bill sub-paragraphs (a), (b) and (c) of subsection (6). The reason has already emerged in my remarks on the previous amendment.
The right to representation is set out in Schedule 3. As I indicated earlier, it is not a right of representation which exists as the right of an individual. It arises only when, in the discretion of the court or the commission, that right of representation is granted. So it requires a decision by the court or the commission to grant the right. Paragraph 6 of Schedule 3 sets out the criteria for the grant of that right. The paragraph states:Any question as to whether a right of representation should be granted shall be determined according to the interests of justice".But in deciding what are the interests of justice, a restrictive series of "factors" are set out in sub-paragraph (2) under headings (a) to (e), which, under sub-paragraph (3),The Lord Chancellor may by order amend … by adding new factors or varying any factor".So the right of representation is considerably prescribed by the provisions in Schedule 3.
I now turn to the matters that are the subject of my amendment. Clause 14(6) again includes a power, in sub-paragraphs (a), (b) and (c), for the Lord Chancellor to make regulations in prescribed circumstances that,the right … is not to apply in cases of prescribed descriptions",and that the,right is not to include a right to select a representative of a prescribed description".So the regulations may prevent the choice of a lawyer whom the accused person wishes to act for him. And under those regulations the right may be,to select only a representative of a prescribed description".So the limitations upon this so-called right of representation are great. In my submission, the Lord Chancellor ought to be satisfied with the 922 limitations imposed in the schedule and not seek to cut the representation down even further by means of sub-paragraphs (a), (b) and (c) of subsection (6).
§ Baroness Kennedy of The Shaws
I wish to put a question to the Lord Chancellor about choice. A pilot scheme is currently taking place in Scotland in relation to salaried public service lawyers. Locally in Edinburgh, where the scheme is operating, it is known as "trial by astrology", because those who were born in January and February are required to have a lawyer from the public service and are not allowed a lawyer under legal aid from any other source. The aim is to see how the pilot scheme operates. My question to the noble and learned Lord is this. Will the pilot schemes under his jurisdiction operate in the same way? Will they prevent the operation of choice, which is the subject of our concern: or will they, too, require persons arrested who were born under a certain star sign to enter into the public defender system?
§ Lord Goodhart
My silence on the previous group of amendments was not intended to indicate any lack of support for them but was a recognition of the fact that they were already receiving more than adequate support from these Benches. In this case, although I strongly believe that there should not be a salaried defender service, if there is to be one, when it comes to representation it is essential that the right to choose to be defended by someone who is not a member of that service should not be excluded.
Clause 14(5) seems to me to include a principle of the highest importance. It is that:An individual who has been granted a right to representation … may select any representative or representatives willing to act for him";that is, the right to a lawyer of one's own choice, which features clearly in Article 6 of the European Convention on Human Rights. In those circumstances, paragraphs (a), (b) and (c) of Clause 14(6) go far beyond anything that is legitimate to be provided for by regulations. Under those paragraphs it would be possible to exclude the right to employ anyone other than a salaried defender. It seems to me that that would be extremely dangerous and would represent a serious risk of infringing the European convention.
The amendment in the names of my noble friend Lord Thomas of Gresford and myself substitutes for paragraphs (a), (b) and (c) a right to prescribe by regulations that the defendant may not seek services from someone who is not accredited or someone who is not prepared to accept fees on a basis of reasonable comparability. That is acceptable, as are paragraphs (d) and (e). However, I regard paragraphs (a), (b) and (c) of subsection (6) in their present form as being entirely unacceptable.
§ 6.30 p.m.
Several Members of the Committee have referred to subsection (6)(a), (b) and (c). However, we should invite the attention of the noble and learned Lord the Lord Chancellor to paragraph (e). It seriously 923 interferes with freedom of choice which, after all, is the basis of confidence in the selection of one's legal representative. It reads:that right is not to include a right for an individual to select a representative if another representative has been previously selected by him".It is just possible that the person who has already been chosen may turn out to be unsatisfactory in one way or another. I need not elaborate on the various possibilities. Surely there must be the right to change one's representative if one feels strongly about it. Therefore I suggest that Clause 14(6)(e) bears that criticism.
§ The Lord Chancellor
Discussion in the Committee has concentrated on Clause 14(6)(c). Clause 14(5) provides that:An individual who has been granted a right to representation in accordance with Schedule 3 may select any representative or representatives willing to act for him".I omit the following words.
Members of the Committee have called attention to subsection (6):Regulations may provide that in prescribed circumstances—(a) the right conferred by subsection (5) is not to apply in cases of prescribed descriptions".The concern expressed by some Members of the Committee is within the ambit of regulations that might be made pursuant to subsection (6)(a). Paragraph (c) provides that regulations may provide that in prescribed circumstances:that right is to select only a representative of a prescribed description".I begin by an explanation of the latter provision and shall then revert to the concerns that have been expressed.
The intent of subsection (6)(c) is to allow choice to be restricted to a lawyer with a contract. Contracting will enable us to protect the interests of individuals involved in criminal investigations and proceedings and to ensure that they have fair treatment by providing quality assured services. That is the main purpose of subsection (6)(c). It is intended gradually to extend the provision of representation under quality-assured contractors to cover almost all circumstances. So there will be choice, but the choice will be confined to quality-assured suppliers of advice, assistance and representation. For example, someone who needs advice at the police station will be able to choose any solicitor with a contract with the criminal defence service or call on the duty solicitor. The solicitor chosen at that stage will be expected to continue to represent the client throughout the lifetime of the case, unless there is a compelling reason to change. That is the reason for subsection (6)(e).
Subsection (6)(c) is also necessary in order to achieve quality-assured representation, for example in very expensive cases, where special skills, experience and technology are often needed, especially in complex fraud cases. In those, the defendant's choice might be restricted to those on a specialist panel who had demonstrated the necessary competence. In my view, it 924 is better to have such a restricted choice of approved specialists than a wider choice from among non-approved specialists.
The principal concern that has been expressed was heralded in earlier discussions by the noble Viscount, Lord Bledisloe. He first focused upon the significance, or potential significance, of Clause 14(6)(c): that regulations might provide and prescribe circumstances in which the right of selection should be a right to select a representative only of a prescribed description. That was intended to limit choice to quality-assured contractors or to salaried defence lawyers. It was not intended to confer a power to restrict choice, for example, to salaried defenders only.
Having listened to the debate, I take the view that we ought to revisit the expression of subsection (6)(c), to ensure that what I have stated as being our intention is the limited power contained in the regulations referred to. If, on the face of the statute, we go to a provision that makes it plain that the choice lies between quality-assured contractors and what is called the "independent profession" or salaried lawyers, it would meet many of the concerns expressed earlier by the noble Lord, Lord Hutchinson of Lullington. When exceptionally it may be necessary to assign a salaried representative to the defendant—that is to say, to allow no choice, which would be in only very limited and special circumstances—I concede that that outcome could be achieved only by way of regulations under Clause 14(6)(a). The Committee will be aware that under Clause 14(7) regulations made under subsection (6)(a) would be subject to the affirmative procedure. But in the light of discussions I believe that these provisions should be revisited in the manner that I have indicated and I undertake to do so. On that basis I invite the noble and learned Lord to withdraw the amendment.
Before the noble and learned Lord sits down, is he suggesting that all of subsection (6) should be reconsidered or only certain paragraphs to which he refers? I believe that paragraph (e) has real dangers in it. Suppose that the person first chosen is found to be the brother of the victim of the alleged crime. The accused would have a reason to seek to change his representative and that should be allowed.
§ The Lord Chancellor
I have said that I shall consider the interaction of Clause 14(6)(a), (c) and 14(7), but I am content in response to the noble Lord, Lord Renton, to think again about Clause 14(6)(e).
§ Baroness Kennedy of The Shaws
I rise again because my noble and learned friend has not answered my question, which was not intended as a joke. There is a pilot scheme currently in Scotland which does not allow for choice. I wondered whether or not the pilot schemes intended to come into being following the enactment of this Bill would allow for a choice.
§ The Lord Chancellor
I apologise to my noble friend for not responding to her observations about the astrologically-based pilot in Scotland. I am sure that there is a rational explanation for it as that is going on 925 north of the Border. No doubt it is to ensure that there is a random selection of individuals to participate in the pilot. But I confess to my noble friend that I am not fully informed of the details of these astrological excursions north of the Border. I shall inform myself and write to my noble friend.
§ Lord Donaldson of Lymington
Perhaps I may invite the noble and learned Lord the Lord Chancellor to look also at subsection (6)(b). I raise this point because normally it is possible to arrive at a particular destination either by excluding all other destinations or specifying that destination. I believe that (b) and (c) are two sides of the same coin.
§ The Lord Chancellor
I see the force of the observation of the noble and learned Lord. I shall consider that matter also.
§ Lord Ackner
As I understand it, by process of elimination my noble and learned friend is prepared to consider subsection (6) in relation to all of the subsections in the clause.
§ The Lord Chancellor
I said nothing about (d) but if that will make the noble and learned Lord more content I shall look also at that provision.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 171 to 178 not moved.]
§ Clause 14 agreed to.
§ Schedule 3 [Criminal Defence Service: right to representation]:
§ Lord Ackner moved Amendment No. 179:
§ Page 55, line 27, at end insert (", including bail proceedings").
§ The noble and learned Lord said: Amendment No. 179 and the two following amendments are minor matters and I shall spend virtually no time upon them. Amendment No. 179 seeks to insert at line 27 on page 55 the words "including bail proceedings". That speaks for itself. Amendment No. 180 is essentially a probing amendment to discover on exactly what matter this is meant to focus. Amendment No. 181 is essentially a drafting amendment. I beg to move Amendment No. 179.
§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
Under paragraph 2(1) of Schedule 3 a right to representation for the purposes of criminal proceedings includes a right to representation for the purposes of any proceedings preliminary or incidental to those proceedings. In my view that would include bail proceedings and interlocutory hearings. Strictly the amendment is unnecessary, but the noble and learned Lord believes that a restrictive interpretation excluding bail proceedings is possible. There is no dispute between us as to what we seek to achieve, although with the greatest respect I doubt the construction that he puts upon it. He knows that under the tutelage of the noble and learned Lord, Lord Simon of Glaisdale, I am an enemy of surplusage. 926 Nevertheless, in the giving age that now exists in relation to this Bill, and if it makes the noble and learned Lord happier, on behalf of the Lord Chancellor I am content to accept his amendment.
§ On Question, amendment agreed to.
§ Lord Ackner: I have moved the amendment.
§ Lord Renton: The noble and learned Lord must formally move the amendment.
§ Lord Ackner: I have moved the amendment already.
§ The Lord Chancellor
Perhaps I may try to assist. Is the Committee not concerned now with grouping No. 69?
§ Lord Ackner moved Amendment No. 180:
§ Page 56, leave out lines 3 to 21.
§ The noble and learned Lord said: I beg to move Amendment No. 180. I have moved the amendment three times. I shall move it a fourth time if the Committee wishes.
§ The Lord Chancellor
The noble and learned Lord need not be concerned because this is a continuation of the giving age to which my noble and learned friend Lord Falconer of Thoroton referred and into which he moved shortly in order to deal with the previous amendment.
In substance the effect of paragraph 4 of Schedule 3 is to carry into the present Bill powers similar to those contained in Section 20(9) of the Legal Aid Act 1988, which allows the Lord Chancellor to transfer to the Legal Aid Board the power to grant legal aid for representation in criminal cases by providing that,In the event of the Lord Chancellor making an order under section 3(4) as respects the function of granting representation under this Part for the purposes of proceedings before any court, the Board shall be competent as respects those proceedings, on an application made for the purpose".In the event the power has never been used. On reflection, I do not believe that the power as regards representation in criminal proceedings before the courts would ever be used and in principle I am content to remove it. However, if defence services under the Bill were to extend to proceedings not in the courts, such as Parole Board hearings, it might be appropriate for the commission to decide whether representation should be granted.
927 In the light of that explanation, and if the noble and learned Lord is content, I shall come back with an amendment to clarify our intentions on the face of the Bill.
§ Lord Ackner
I am most grateful to my noble and learned friend. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 181 not moved.]
§ On Question, Whether Schedule 3, as amended, shall be agreed to?
§ Lord Mackay of Clashfern
I desire to ask a question on this. I have discussed the matter with the Lord Chancellor's officials. I think that I understand t`e position. However, as the noble and learned Lord knows, the House of Lords has a jurisdiction to hear appeals from the Divisional Court of the Queen's Bench Division. That divisional court also has a jurisdiction to hear cases from the magistrates' court. Those are usually concerned with criminal matters, but for some reason I have never fully understood they seem to be treated as civil appeals. That is why they do not seem to appear in this schedule.
I had understood that the matter was under consideration. For convenience it would be better if these appeals from the Divisional Court of the Queen's Bench Division—in the Bill a judge of the High Court being substituted for that—were treated as criminal appeals. For the most part they are concerned with criminal matters.
I wish to ask about that point so that it is not lost sight of. I do not invite the noble and learned Lord to give a detailed exposition now, but simply to keep the matter in mind.
§ Schedule 3, as amended, agreed to.
§ Clause 15 [Regulations about payments to representatives]:
§ [Amendment No. 182 not moved.]
§ Lord Ackner moved Amendment No. 183:
§ Page 10, line, 35, at end insert—
§ ("( ) Such provision shall include provision for separately negotiated remuneration—
- (a) for specialist advocates in any criminal proceedings where the court directs that the interests of justice require their services; and
- (b) for all representatives in any criminal proceedings where the court estimates that the length of the trial will exceed such number of days as may be prescribed.").
§ The noble and learned Lord said: The amendment seeks to follow what was in the White Paper. It was designed to ensure that where the case justified it provision would be made for the expert services of the specialist Bar.928
I invite the Committee to consider paragraph 6.14 of the White Paper Modernising Justice. It reads as follows:
So far as possible, contracts with solicitors' firms should cover the full range of criminal defence services, from advice at the police station, to representation in the magistrates' court and, if necessary, the Crown Court. This will eliminate the fragmentation that bedevils the current scheme. Contracts of this type would require the firm to cover a number of duty solicitor slots at local police stations",
and so on. The paragraph concludes:
These contracts would not set a limit on the number of cases the firm could do. If a case also required the services of a specialist advocate in the Crown Court, this would be provided under a separate contract".
Paragraph 6.15 makes provision for the very expensive cases—those where the trial is expected to last 25 days or more—which fall outside the scope of contracts designed to cover ordinary cases. The paragraph states:
Instead, a separate contract will be negotiated for each individual case".
A little later the paragraph states:
The negotiations will usually include the cost of specialist advocates and other experts".
Amendment No. 183 is designed to reflect that. At page 10, line 35 of the Bill it inserts the following paragraph:
Such provision shall include provision for separately negotiated remuneration—
I beg to move.
§ Lord Mackay of Clashfern
I support the thrust of the amendment. It is important that encouragement should be given to solicitors and banisters to specialise to some extent in particular types of criminal proceedings where lack of expertise may lead to an unnecessary prolongation of the proceedings. We have had some experience of that over the years.
§ The Lord Chancellor
I am the first to acknowledge the necessity for specialist advocacy services in the more complex criminal trials. However, I am not at present persuaded that the amendment should be accepted. It seeks to place on the face of the legislation mechanisms for remuneration which are more appropriately dealt with in regulations.
The amendment would require separately negotiated remuneration in two circumstances. The first is where the court appoints a specialist advocate, or directs the appointment of a specialist advocate, in the interests of justice. The second is where the court estimates that the case will last beyond a specified number of days.
On the first proposition—that there should be separately negotiated remuneration where a specialist is appointed—I have power under Clause 15 to settle separate payment arrangements for advocates. Let me state my position. I intend to continue with the graduated fee scheme and if current, and I believe positive, discussions between the Bar and my 929 department bear fruit it may even be possible to extend that scheme beyond the current 10–day limit. Whatever the future may hold for contracts, graduated fees may in some areas continue indefinitely, or at least provide a sound basis for contracting with the Bar. As I have already pointed out in relation to civil matters, but the same is true for crime, the Bill allows me to contract separately with the Bar.
I wish to emphasise that I have long thought and said—and the Bar knows that it is my view—that it should embrace the opportunities of contracting and be ready to contract for the provision of advocacy services either as individual sets of chambers or through particular groupings of barristers so that, equally with solicitors, it can offer volume services. If it were to contract in that way it would be at prices determined by the contract. The Bar would be free of risk of payment for its services via disbursements in solicitors' bills when the solicitors would be the only contracting Party.
I have said many times that the vulnerability of the Bar is obvious. It may be that that is part of the thinking of the noble and learned Lord, Lord Ackner. The solicitor has the contract. What the barrister receives for the provision of his specialist services out of the solicitors contract price, if the solicitor is contracting for the provision of a total service, is what the solicitor agrees to pay the barrister. I repeat that of course the Bar can contract directly. That is what I have been saying for ages. However, the Bar has its salvation in its own hands. We are ready to contract with it and I say that the powers exist so let the Bar get on with it.
The second part of the amendment deals with separately negotiated remuneration for all representation in longer cases. I repeat that we are looking at the issue in the context of graduated fees. What is more, everyone knows about the public concern over lengthy and high-cost cases. Again, my department is talking to the Bar Council and the Law Society about better control and is examining the prospect of negotiating one-off contracts to cover individual high-cost cases. As presently advised, I do not believe that the details of how we go about all of this is a matter for primary legislation. I have said as clearly as I can what our intentions are and how much we would welcome a willingness on the part of the Bar to contract. On that basis, I invite the noble and learned Lord to withdraw his amendment.
§ 7 p.m.
§ Lord Thomas of Gresford
Before the noble and learned Lord sits down, perhaps I may ask whether he envisages some form of partnership with the Bar. If it is contracting with chambers will the barristers in those chambers be partners and unable to appear against each other? What will be the knock-on effect of such a situation on specialist chambers where partnerships would reduce the choice available?
Before the noble and learned Lord replies, I hope that he will not encourage any kind of partnership with the Bar. The great strength of the Bar and the judiciary is its tradition of personal 930 independence and responsibility. Any attempt to form chambers on a partnership basis so as to include certain types of specialist is wrong in principle.
I have such respect for my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Ackner, that, greatly daring, perhaps I may say that I never specialised. However, one-quarter or perhaps one-third of my work was in criminal cases of a wide variety. They included murders and motoring cases. I remember a long-term fraud case in which the accounts amounted to 900 pages. Was there a specialist to handle that? If we want the judiciary to do its job in the years to come we must be careful that we do not encourage too much specialisation within the Bar.
§ The Lord Chancellor
With great respect to the noble Lord, Lord Thomas of Gresford, I have to say that he is a lawyer, all members of the Bar are lawyers and I am not in the business of giving them legal advice. I have long since given up doing that, unfortunately. It is not for the state to prescribe any particular method of organisation or business arrangements within the Bar. My long experience of the Bar, not that distant, leaves me with the firm belief that there is enough intellect and inventiveness within it to find a wholly effective means of adapting to changing times and contracting for the provision of volume services.
§ Lord Ackner
Before the noble and learned Lord sits down, I wish to ask whether he anticipates that it is highly probable that the changes he is making to the opportunities of the Bar to practice could lead to the need for the Bar to move into a co-operative situation such as a partnership in order to carry the risks, particularly of the conditional fee situation. I ask that question because I wholly agree with the noble Lord, Lord Renton, that partnerships are highly undesirable. As I think I told the Committee a day or so ago, when Chairman of Bar I was responsible for setting up a committee to consider partnerships at the Bar. I very carefully chose the noble and learned Lord, Lord Templeman, as he then was not, to preside over that committee. The result was that it came out unanimously and strongly against partnerships at the Bar in the interests of the public who, if there were partnerships, would to a high degree lose their ability to choose. I ask the noble and learned Lord whether, with his knowledge of the Bar as it stands at the moment, he agrees that specialisation is an increasing development at the Bar. The generalist virtually no longer exists.
§ The Lord Chancellor
I do not know about that. Until May 1997 I managed to continue to practice, I suppose, as a dinosaur, a generalist, in many different classes of civil litigation.
We are, if I may say with respect, a little adrift from the subject matter of the amendment, which refers specifically to remuneration for barristers and whether barristers can aid their position by contracting for the provision of volume services. I am firmly of the view that they can do so without having to enter into partnerships. They can adapt particular contractual arrangements to achieve that outcome.
931 As regards conditional fee agreements, again that is wide of the mark but I have every belief that the Bar will adapt and that a strong, independent Bar, as I wish it to be, will remain a continuous feature of the provision of legal services in this country.
However, I conclude by giving an undertaking to my noble and learned friend which is this. There was an article a little time ago written by a senior barristers' clerk in a set of chambers saying how they had been engaging in conditional fee agreement business for a year or two completely successfully and without any difficulty and he did not really know what all the fuss was about. I am minded to send a copy of that article to my noble and learned friend.
§ Lord Ackner
It is not always wise to mention all one's knowledge. I should like the opportunity to consider what has been said about this amendment and in the meantime, I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 184 and 185 not moved.]
§ Clause 15 agreed to.
§ Clause 16 [Terms of provision of funded services]:
§ Lord Goodhart moved Amendment No. 186:
§ Page 10, line 41, leave out ("(and the individual is not acquitted)").
§ The noble Lord said: This is a very short point and really it is a probing amendment. Under Clause 16(2), if a criminal defendant is acquitted then the trial judge cannot, in any circumstances, make an order requiring him to pay some or all of the costs of representation.
§ Although I do not practise regularly in the criminal courts, I understand that from time to time trial judges make orders that, although a particular defendant has been acquitted, nevertheless, because he, by his conduct, has brought the prosecution on himself, he should not be refunded his costs out of public funds. Clause 16(2) would make that course of conduct impossible and I wonder why that is being done. I beg to move.
§ Lord Falconer of Thoroton
The amendment tabled by the noble Lords, Lord Goodhart and Lord Phillips of Sudbury, would have the effect that, subject to any regulations, the Crown Court would be able to make an order requiring a defendant to pay towards the defence costs whether or not he was convicted. I think that that must be a correct proposition put forward by noble Lords. That would reflect, under the new system of costs orders, the current position when a defendant has made a contribution towards legal aid. At present, and in exceptional circumstances, the court may refuse to order legal aid contributions to be repaid even on acquittal if the defendant has, for example, brought suspicion on himself or has misled the police into believing that the case against him was stronger than it proved to be.
932 Because there will be no means testing or contributions in the future, there will be nothing to withhold. Nevertheless, in certain rare cases it may still be right for an acquitted person to meet some or all of the defence costs because of serious misbehaviour. The proposed amendment gives that discretion to the court. I believe that that is right. Accordingly, I welcome the amendment and accept it.
§ On Question, amendment agreed to.
§ Clause 16, as amended, agreed to.
§ Clause 17 [Funding]:
§ [Amendments Nos. 187 to 189 not moved.]
§ Lord Ackner moved Amendment No. 190:
§ Page 11, line 22, at end insert (", but shall always treat the interests of justice as paramount").
§ The noble and learned Lord said: This amendment seeks merely to insert at the end of the clause the obligation to treat the interests of justice as paramount. The noble and learned Lord the Lord Chancellor may well say that that is implicit. It would look a great deal more impressive if it were on the face of the Bill. I beg to move.
§ 7.15 p.m.
§ Lord Ackner
I did refer to a similar matter but not with regard to Clause 17. I did refer to this matter on Clause 13 and Amendment No. 151 which states:leave out (`it considers appropriate') and insert Care necessary in the interest of justice')".It is not the same clause; it is not the same words, although the philosophy is consistent.
§ The Lord Chancellor
I indicated in relation to a similar but not identical amendment a willingness to take it away and think about it, so I give my noble and learned friend the same indication in relation to this amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 agreed to.
§ [Amendments Nos. 191 and 192 not moved.]
§ Clause 18 [Foreign law]:
§ [Amendments Nos. 193 to 196 not moved.]
§ On Question, Whether Clause 18 shall stand part of the Bill?933
§ Lord Ackner
I merely wish to raise a note of caution about this particular clause because I am not at all clear how it operates. Clause 18(1) states:The Commission may not fund as part of the Community Legal Service or Criminal Defence Service services relating to any law other than that of England and Wales".I ask why that is so. Will there not be cases—for example, extradition matters—where it may well be necessary for foreign law to be gone into and be the subject matter of expert evidence?
§ Lord Hacking
I join with the noble and learned Lord, Lord Ackner, in expressing concern about this clause. The noble and learned Lord will remember that I raised the point not in relation to extradition—although it is equally valid made in relation to that—but in relation to the Civil Aviation (Amendment) Act 1996. The noble and learned Lord very kindly wrote to me to assuage my concerns in his letter to me of 18th January. In that letter he said that a situation could arise under the Civil Aviation (Amendment) Act 1996 when it is a ground for a defence to a charge under that Act that the conduct of the offender in the foreign aircraft landing in this country did not constitute a criminal offence in the country of the registration of the aircraft, although it did constitute a criminal offence in this country.
The noble and learned Lord replied in his helpful letter to me that this was an issue of fact to be adduced in proceedings in this country. He said that he was satisfied that this would not be caught by Clause 18, which is directed at advice about the application of foreign law and help in taking proceedings in other directions. Indeed, that latter would also refer to the point raised by the noble and learned Lord, Lord Ackner.
However, the question is that, in the drafting of the Bill, would that be the result? The phraseology in Clause 18 is that,The Commission may not fund … services relating to any law other than that of England and Wales.On a perfectly normal construction, if a lawyer was required, in the example of extradition or under the Civil Aviation (Amendment) Act, to research and advise the client on the law of a foreign country, that would be services relating to the law of a foreign country and therefore would not be covered under the provisions of the community legal service or the criminal defence service—in this case under the terms of the criminal defence service.
All I ask my noble and learned friend is that he look at the drafting of that clause and consider with his officials whether it truly does produce the result that he expressed in his letter to me. If that could be looked at again I would be extremely grateful. We are clearly agreed on the purpose of the clause; it is only a question of the correct execution of that purpose in the drafting of the clause.
§ Lord Donaldson of Lymington
I share the feelings of anxiety in relation to this clause. Foreign law is always a question of fact in English courts, but it does not cease to be foreign law. I can see an argument for 934 saying that Clause 18(1) restricts the grant of assistance to any issue relating to a question of fact which happens to be in the category of foreign law.
We have been talking of criminal cases but there are other categories of case. Nowadays I rely on newspapers for my knowledge of the law. Recently there was an article in relation to foreign marriages in which it was said, as I understand it, that English courts will only recognise marriage if it is valid in the country where it was contracted. The question of whether or not the parties were married from the point of view of English law would therefore turn entirely upon foreign law. It seems a bit odd that in those circumstances there should be no assistance.
§ Lord Hacking
Perhaps I can intervene to give a further example which occurred to me while the noble and learned Lord, Lord Donaldson, was talking. Under the rules of the Supreme Court it is possible to bring civil proceedings—for example, for negligence—when the event which caused the injury took place in a foreign country, provided that the defendant is ordinarily resident in the United Kingdom. For example, if a person was injured in a motor car accident in France, provided that the driver of the vehicle which caused the injury was ordinarily resident in the United Kingdom, with leave from the High Court it would be possible to bring proceedings in England for that act of negligence which took place in France. So, while the English law of negligence would apply, it is almost inevitable that issues of French law—for example, regulatory law—would arise in those proceedings and advice would be needed on French law.
§ Lord Donaldson of Lymington
Any contract governed by a specified foreign law would of course require examination of that law.
§ Lord Wilberforce
Perhaps I may add my small voice to the doubts expressed in relation to this clause. It is puzzling. First, it does not relate only to criminal cases; it relates also to the community legal service, and therefore instances given by other Members of the Committee can be multiplied in the whole area of civil law when a question of foreign law applies.
Secondly, the clause excludes not only Scottish law, which it may be necessary to consider in a number of cases, but also the law of the Channel Islands, the European Community or any other law which may happen to arise here. We all know that one of the great virtues of the English legal system is that it attracts a great number of cases in which foreign law is applied and which people are willing to have tried in this country. It is an important import.
We notice that subsection (2) now gives rise to an exception, though it is a narrow exception. It applies only where it is necessary to fulfil an obligation,imposed on the United Kingdom by any international agreement".That would no doubt cover some things, perhaps governed by community agreements or perhaps human rights or many other commercial agreements, but it is a 935 narrow exception. Perhaps the noble and learned Lord would be kind enough to explain why this clause is necessary in the very wide field to which it applies.
§ Lord Meston
I have spent many happy hours considering the validity of foreign marriages and divorces, but I want to add one more category of cases which can cause concern; that is, cases involving children and international child abduction in particular. As I understand it, Clause 18(2) will largely replicate the existing provisions of the Legal Aid Act under which there is usually no difficulty in obtaining quick advice—often very necessary—about foreign law relating to child custody, child contact and child support. However, there are categories of cases in which the international child abduction conventions, which presumably would be caught by Clause 18(2), do not apply. In those cases the English courts are normally exercising the wardship jurisdiction or the ordinary jurisdiction under the Children Act. Although it is not a case involving an international convention, often it is necessary to obtain details and urgent information about the law and practice in a foreign jurisdiction.
§ The Lord Chancellor
It is quite obvious that it was not intended to exclude from legal aid, whether civil or criminal, services in order to deal with foreign law when it is a fact in issue in English proceedings necessary to be determined in order to arise at a just outcome. I share the reservations of Members of the Committee about the effectiveness of Clause 18(1) to achieve that end and will therefore take it away and consider it.
On that basis the noble and learned Lord, Lord Ackner, may no longer wish to maintain his position that Clause 18 should not stand part of the Bill.
§ Lord Ackner
I am grateful to my noble and learned friend for reading my thoughts with such precision. I hope we have now reached a moment when I can go and celebrate for a short period his generosity over the past couple of hours or so.
§ Clause 18 agreed to.
§ [[Amendment No. 197 not moved.]
§ Lord Carter
My Lords, I beg to move that the House do resume. In moving this Motion I suggest that the Committee stage begin again not before 8.30 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.