HL Deb 26 July 1999 vol 604 cc1299-305

30BA Line 2, at end insert ("in areas where appropriate advice or assistance is not reasonably available from other sources").

3.45 p.m.

Lord Thomas of Gresford

My Lords, I beg to move, as an amendment to Commons Amendment No. 30B, Amendment No. 30BA. I give great credit to the noble and learned Lord the Lord Chancellor for the changes he has made to the Bill, either here or in another place, as a result of suggestions put forward by my noble friend Lord Goodhart and others. He has approached the Bill in a constructive way. I hope that he will not mind my saying that I have to cavil that he does not go quite far enough.

Mr Keith Vaz, the Minister in another place, sought to question the motives of those who spoke and those who voted in this House to delete from the Bill the provisions which set up a state criminal defence service. He said that our purpose was, in effect, to protect the vested interests of the established profession by preventing choice. I have also heard it said in this House on a number of occasions that we are upholding restrictive practices. I have to say, with the greatest respect, that "restrictive practices" and "vested interest" is the wishy-washy language of consumerism which ignores the historical reasons for an independent Bar.

The noble and learned Lord the Lord Chancellor said that the purpose of the state criminal defence service is to widen consumer choice. That phrase, when used, seems to overlook the fact that the consumer in the field of criminal law and practice is not somebody who is choosing between two different makes of motor car or two different sorts of television sets which may be the subject of a Which? report; he is a person facing a serious threat to his reputation and liberty.

Part of the struggle of the people of this country for freedom and democracy involved a fight to ensure that there were judges who were independent of the executive and that there were advocates who appeared in the courts of this country who put the interests of their clients above the interests of the people in power.

The recitals to the Bill of Rights 1688, for example, complain of partial, corrupt and unqualified persons serving on juries in trials, of excessive fines and of illegal and cruel punishments. That was a reaction to men such as Judge Jeffreys who was a venal attorney-general as an advocate, later a corrupt and cruel judge, and a servant of the Stuart Crown and not of justice and the people. I mention him as an outstanding example from history, and also because I was born in a house built in the parkland of his old mansion at Acton, Wrexham. I hope that not too much has rubbed off on me.

The Crown Prosecution Service is to be even more firmly in the hands of the state, because the Bill opens up all the courts to it. The state defence service is proposed in the name of wider choice. The accused currently has a wide choice of solicitors to represent him in his area. Through them, particularly in serious trials, he has access to the best advocates in the country.

The Government argue that state employees in a state defender service will act with the same independence as the rest of the legal profession because the statute says so in its code of conduct in Section 16. They argue that judges are paid by the state and they are incorruptible, so why should state defenders be different? We are reaching the stage when the state will be prosecuting, defending and paying for the judge. The only truly independent and impartial element of the criminal justice system in our higher courts will be the jury. It will not be many months before we are faced with legislation to limit the cases in which jury trial will be permitted.

The argument against the state defender system is not fuelled by vested interests. I was grateful to the noble and learned Lord the Lord Chancellor for repeating what I said on Third Reading. If choice is maintained between a state nationalised defence service and independent solicitors and banisters, there is no contest. Time and again we have been told that in Scotland, where a pilot project is running, 20 per cent of defendants choose the state defender service. The only light to be thrown on those figures came from Baroness Kennedy of The Shaws from the Government Benches. She said that it depended on the sign of the zodiac that a person was born under. Those born in January and February were assigned the state defender service and those born later in the year were entitled to an independent solicitor and barrister. I do not accept the arguments about free choice and the figure of 20 per cent in Scotland.

The standards of service to the consumer—the person who faces a threat to his liberty—are currently protected by the highly competitive nature of the independent Bar and the contract system introduced by the Bill. The legal services commission will insist on higher standards from those who are contracted to provide criminal defence work at the independent Bar. The court is currently protected by the strict disciplines of the legal profession, particularly the Bar, the chambers and the professional bodies. We are concerned to maintain the balance between the state, which prosecutes, and the individual who is charged.

The Government ask how we dare suggest that those attracted to the state defender service would be of an inferior quality. Those of us from all quarters of the House with practical knowledge of the functioning of the Bar and the solicitors' profession in criminal law realise that a state defender service will not attract the highest calibre of candidate. There are not glittering prizes in the state defender's office. The Lord Chancellor referred to my suggestion that the creation of a state defender service nationwide would result in a vast bureaucracy. The Crown Prosecution Service certainly has. I do not see how a state defender service could operate a little bit here and a little bit there, but not over large tracts of the country. Of course there will have to be a structure, of course it will be expensive and of course there will be a head of the service and various levels of management beneath that. There will be a bureaucracy.

Our position is not extreme. It is shared by the criminal practitioners in the House from all parties who have spoken, including some on the Government Benches. It is also shared by Mr Denzil Davies in another place. Our position is irreconcilable with that of the Lord Chancellor.

However, it would be churlish of me not to recognise the force of what the noble and learned Lord later said about the change in regulations concerning the right of a defendant to change his lawyer if he loses confidence in him. That has not been said before and I am grateful to the noble and learned Lord for making it clear that regulations will cover that.

I appreciate the constitutional questions that have been raised, but the principle of an independent Bar and independent solicitors acting for the accused when prosecuted by the state is fundamental. It is a freedom that has been long fought for and gained. It has nothing to do with fashionable consumerist ideas.

Moved, as an amendment to Commons Amendment No.:30B. Amendment No. 30BA—(Lord Thomas of Gresford)

Lord Campbell of Alloway

My Lords, I have two questions for the Lord Chancellor about the regulations. First, when the accused seeks to have a second defender, who decides whether that request should be granted? I hope that it is a magistrate, who is outside the set-up. Secondly, if that request is granted does the second defender have the conduct of the case?

The Lord Chancellor

My Lords, the answer to the first question is that I am fairly confident that it is a judge. The answer to the second question is yes.

4 p.m.

Lord Kingsland

My Lords, I fear that I may lay myself open to the charge of dissembling if I venture to compliment the noble and learned Lord the Lord Chancellor on his opening remarks. They were the most dispassionate and constructive that I have yet heard him utter on the subject.

I remain, however, fearful of the idea of a state-employed representative defending the accused in a criminal case. I find that repugnant in principle. It is even more repugnant if both prosecutor and defender are employed by the state.

I recognise that, in his amendments, the noble and learned Lord has sought to allay the fears of those who share my view by seeking to separate the criminal defence representation service from the criminal defence service itself, making it a self-standing body. That is a constructive proposal.

We are not seeking to question the integrity or professionalism of criminal lawyers employed by the state. However, we believe that duty to one's employer and duty to the court are irreconcilable. The noble and learned Lord supports the amendments from another place modifying this situation, and that means some progress has been made.

However, I am less happy about the noble and learned Lord's remarks both with regard to the question of need and with regard to the question of competition. I cart find no evidence in our country of the need for a state criminal defence service; nor has the noble and learned Lord sought to lay any evidence of need before your Lordships' House. With the addition of the solicitors' profession, which is to have full rights of audience in the Crown Court, the case for need is weakened rather than strengthened.

In relation to competition, I must first thank the noble and learned Lord for explaining the amendment which came from another place, making it absolutely clear that the criminal accused will be able to choose, in all circumstances, between a state employed defender where available, on the one hand, and a private sector barrister on the other. That is reassuring and welcome, and I thank him for it.

However, in relation to the criminal accused who is on legal aid, the fact that he chooses between a state employee on the one hand and a private self-employed barrister on the other who is in receipt of legal aid funds is irrelevant from a competition point of view. All the accused is concerned with is choosing the best man or woman to represent him in court. So what is the relevance of competition to that?

Surely it lies elsewhere. Surely the importance of competition to which the Lord Chancellor refers covers the cost to the state of employing a defender who is employed by the state, as against the cost to the state of employing a private sector lawyer who is the beneficiary of moneys which come from the new contracting process which will flow from this Bill.

But is that competition as we understand the term in a market economy? Market prices play no role in pricing either service. The cost of the state employee is determined by the Lord Chancellor's Department. Equally, the cost of a private sector lawyer will be determined by a process of contractual bargaining between the Lord Chancellor's Department and a particular firm of solicitors—a negotiation in which the Lord Chancellor's Department is a monopoly provider of funds.

Where is the competition? The fact is that the stale is in control in both cases. It will not be the forces of competition which determine the future role that the criminal defence service will play; it will be the forces of politics which lodge in the noble and learned Lord's department.

Having delivered myself of what is likely to be, in the noble and learned Lord the Lord Chancellor's opinion, a long speech, I now come to my closing remarks. Of course I entirely accept the constitutional position as set out by the noble and learned Lord the Lord Chancellor. Noble Lords have had the opportunity to amend this Bill at Committee stage, Report stage and at Third Reading. The Bill went to another place. Your Lordships' amendments were reversed. It came back and your Lordships sent it back again. It is now back in your Lordships' House. There is no question that, in terms of political legitimacy, another place is in a stronger position than your Lordships' House.

I regret the fact that another place chose to support amendments which in some respects undermine the constitutional position of the criminal accused. However, it is now your Lordships' constitutional duty, I submit, to accept that position; to take the noble and learned Lord the Lord Chancellor at his word; to accept that he has great confidence in what he has done and to leave matters to move to their obvious conclusion.

Lord Ackner

My Lords, in the words normally associated with a dying declaration, I have a settled, hopeless expectation that the Government will inevitably get their way. But I should like to record my personal dismay at the Government's dismantling of our system for the administration of justice as we know it.

There is no demand; there is no need for a state criminal defence system. Why therefore is it being foisted upon us? The answer, I fear, is not a surprising one. It is because the Treasury wants it, and the Treasury wants it, in the words of my noble and learned friend the Lord Chancellor, because it provides a means to assess whether value for money is being achieved. What goes into "value for money"? Where does justice feature in that concept? I fear it features very little.

The idea behind the Commons amendment is to establish that a state system is cheaper—that is what "value for money" in the Treasury approach means. If it is cheaper, what will happen? There will be no justification in that situation for the state criminal defence service existing alongside the private service. It will be the means of dealing with legal aid.

I referred to the "dismantling" of our system. Perhaps I may refer to the same process in regard to the Crown Prosecution Service. That is being imposed not out of a theoretical desire to give rights of audience to lawyers who are employed—there is no need for that; there is no demand—it is again to see whether it can be established that the employed lawyer, under the employed system, can provide better value for money, which merely means the Treasury concept of it being cheaper. If it is, there will not be any exception to the CPS doing all the prosecution work; and it is not only the CPS; it is also the government employed lawyers in their specialities; for example, Customs and Excise and the Revenue. The Treasury says it will be cheaper to employ them than to go outside.

I come now to the rights of audience where the position is the same. My noble and learned friend the Lord Chancellor was at pains to point out that, despite solicitors in private practice for the past five years having had the unfettered right to appear in all the High Courts so long as they pass the simple requirements of the Law Society, only 1 per cent of solicitors in private practice availed themselves of that advantage. We were provided with the explanation. First, they were not very good examinees. I do not blame them. Why should they be? They were not trained for advocacy, which is a specialist function. No doubt GPs would fare the same way if they were tested to be brain surgeons. Secondly, the solicitors found the work a disturbance to their methods for running their practices. It takes time to research a problem. It is cheaper to farm it out to the Bar.

The listing system can be accommodated by the Bar, which can take the rough with the smooth, but with solicitors there was too much rough and too little smooth. The quantity of work available to them was too small. That is what the Lord Chancellor's own advisory committee discovered through two universities retained to do the research. That information does not feature anywhere except in a long article by Professor Zander. We would not have heard about it but for that article.

Why should matters change? They should do so for two reasons. First, it has been made somewhat easier for the city solicitor who does not appear in the county court or police court to be allowed to qualify for advocacy rights. Much more to the point, advocacy will be forced upon the reluctant solicitor. The block contracts that will be the manner of retaining solicitors will be from start to finish and include advocacy. Of course a solicitor can contract out of the advocacy if he is so minded but that would cost him money—and block contracts will be highly competitive. It will not be a satisfactory financial situation if the solicitor contracts out. He will therefore avail himself of the audience rights.

The rights of audience imposed that way will produce a cheaper system. Block contracts will turn out to be cheaper than a contract with solicitors to do their side of the work, with the engagement by solicitors of others in cases that the Bar now does in practice although it has no entitlement solely to do so. The rights of audience will be another dismantling of the profession designed to be cheaper.

Your Lordships may say that all that is a bit far fetched, but I remind the House of the aetiology of the conditional fee, which was introduced by my noble and learned friend Lord Mackay of Clashfern when he was Lord Chancellor. He did not introduce it other than on the basis that regulations would fill in the details of what the arrangement would cost and so on. He told us in Committee that in Scotland the conditional fee was operative but there was no mark-up or increased fee for taking the risk. He thought that a moderate increase of 5 per cent was all that would be necessary. On that prospectus, power was given to enable the conditional fee system to exist which had hitherto been looked upon as contrary to public policy—largely over the conflict it raised between solicitor and his client.

That prospectus was false because 5 per cent became 10 per cent. That was not good enough so 10 per cent became 20 per cent. That was not good enough so it was multiplied by five, contrary to the Lord Chancellor's own advisory committee, and turned into 100 per cent. The noble Lord, Lord Mishcon, with that shrewd insight for which he is well known—said, "You must not use the conditional fee to prejudice and cause delay. It must not be open to the authorities to say that this is a case where one could get a conditional fee system up and running and there should not be legal aid". That provision to safeguard legal aid was put in statutory form in the Courts and Legal Services Act 1990.

What has happened with a change of government? It is not that the conditional fee has been to some extent modified but the conditional fee is essentially to do away with legal aid in all personal injury cases and others. That has been allowed by regulations or orders made by the Lord Chancellor—not by primary legislation—in the teeth of resistance by the Government to monitoring exactly what is happening. Risk evaluation was referred to by the one small investigation undertaken by a policy institute. Risk evaluation was rightly queried because in personal injury cases, it is common ground that the success rate is more than 90 per cent. The risk evaluation on the short test that was made showed that clients were being charged not 10 per cent or 20 per cent but close to 50 per cent. I wager that the majority of those cases did not come to trial, for the simple reason that they were observed at an early stage to be open and shut.

If the Government are prepared to use conditional fees in the manner that I have suggested, that is the clearest possible demonstration that, given the fascination with achieving something cost-effective, the evaluation is likely to be made without a proper introduction and assessment of justice. That is not what the Treasury is good at. For those reasons, in the words of the classicist, 0 tempora 0 mores.

4.19 p.m.

Viscount Runciman of Doxford

My Lords, I rise to query one implication of what I understood the noble and learned Lord, Lord Ackner, to be saying. I have almost always found myself to be in agreement with him whenever I have heard his silver-tongued eloquence in the House on these matters in the past.

My concern is the implication, which I hope he may be willing to disavow, that the quest for value for money is inherently misconceived because it is merely a euphemism for a loss of quality for the sake of cheapness. Anybody who has looked in detail, from outside and inside, at the criminal justice system will agree that in some significant areas it is seriously underfunded but that others—not least criminal defendants—do not get value for money in that the interests of justice and could be equally well served at less cost. To the extent that that is so, and to the extent that the noble and learned Lord the Lord Chancellor believes that the Government are introducing measures which will reduce cost without impairing standards, it seems to me that that is something which, in principle, all Members of this House ought to be willing to support.

Amendment No. 30BA, as an amendment to Commons Amendment No. 30B, negatived.

On Question, Motion agreed to.