COMMONS AMENDMENTS (Hansard, 26 July 1999)

§ The Lord Chancellor

My Lords, I beg to move that the House do not insist on their disagreement to Commons Amendments Nos. 27 to 30, and do agree with the Commons in their Amendment No. 30B in lieu thereof. With your Lordships' leave, I shall also speak to the remaining amendments in lieu, Commons Amendments Nos. 30C to 30F, and to Amendments Nos. 30BA and 30DA.

The new Commons Amendments Nos. 30B to 30E would restore to the Bill powers for the legal services commission to employ salaried lawyers to provide advice, assistance and representation as part of the criminal defence service. In addition, Amendment No. 3OF would extend the scope of Clause 15(9) to provide that regulations about choice of representative could not require a person to select an employee of a body established and maintained by the commission. As it stands, Clause 15(9) only precludes regulations that require someone to select a representative employed directly by the commission. Your Lordships may recall that the Government intend to pilot two models for employing salaried defenders; direct employment by the legal services commission, and employment by separate not-for-profit bodies established and maintained by the commission for the purpose of providing criminal defence services. Amendment No. 30F will extend the principle of choice enshrined in Clause 15(9) to both situations.

1294 The provisions in the Bill about salaried defenders have already been exhaustively debated. Despite some of the warnings we have heard in this House, these provisions would not create a US-style public defender system; they do not strike at the heart of our constitution or the rule of law; and I have the utmost confidence that they do not sound the death-knell of the criminal Bar, which—I confidently predict—will go from strength to strength. They are modest provisions to add a further item to the range of ways in which the legal services commission may secure criminal defence services.

The other place, the democratically elected Chamber, has now twice restored to the Bill the powers for commission to employ salaried defenders directly. Some 75 Members of the other place have signed an Early-Day Motion in support of salaried defenders, including Labour Members and some Conservative and Liberal Democrat Members. I invite your Lordships to respect the views expressed in the other place by not rejecting these modest proposals for a third time.

Salaried defenders are part of a package of reforms set out in this Bill that makes substantial changes to rights of audience and removes other restrictions on the provision of legal services that cannot be justified in the public interest. The Bill has established the principle that employed advocates should enjoy full rights of audience.

Our reforms of legal aid and legal services will benefit the public and widen consumer choice; as I have already said, the other place is proposing an amendment to improve further the clause about the right to choose a representative in criminal cases. I have to submit to Your Lordships that it must ultimately be for the elected Chamber to decide what is in the interest of the public and of consumers, on any issue concerning restrictive practices, rights of audience and whether the state may expend public money on criminal defence services through salaried lawyers or be confined exclusively to lawyers in the private sector.

I now come to the reasons why the Government see value in a power to employ salaried defenders and I will then deal briefly with the arguments against them put in particular by the noble Lord, Lord Thomas of Gresford, and others.

Salaried defenders will give the public a wider choice of representative; they will provide the legal services commission with the means to assess the value for money of criminal defence services generally, and provide a competitive stimulus to lawyers in private practice; and they will increase the commission's flexibility in providing criminal defence services, in particular allowing it to fill any gaps in coverage there may be in remote areas.

The noble Lord, Lord Goodhart, wishes to restrict salaried defenders to this last role alone. His Amendments Nos. 30BA and 30DA would allow salaried defenders to give advice and assistance or to represent clients only in areas too remote or insufficiently lucrative for the private provider to wish to provide a service. I have said on a number of occasions that salaried defenders will indeed give the commission the greater flexibility to provide access to 1295 legal services in every part of the country. But I cannot accept these amendments because salaried defenders have more to offer than just filling in gaps in provision. They will help the legal services commission to determine whether it is obtaining value for money, a matter to which I shall return shortly; and they will give the public a wider choice. On the all-important issue of choice, the noble Lord, Lord Thomas of Gresford, said in our last debate: I have no fear that the independent Bar would beat any public defender service if the accused person were given any choice. I have never been afraid of competition and neither has the Bar".—[Official Report, 14/7/99; col. 421.] He also described it as "ludicrous" that choice would be exercised in favour of the state defence service, although I have to remind him that more than 20 per cent of the clients of the Public Defence Solicitors' Office in Scotland are now using its services by choice. If no one would choose a salaried defender in preference to a member of the Bar in private practice, then surely the Bar has nothing to fear. The noble Lord says that choice will inevitably be removed. Heedless of my explanation that a salaried element in a mixed economy of criminal defence services will be built up gradually following a number of small pilots, he seems to have in his mind the concept of a vast bureaucracy, overstaffed and underemployed, pressing the Government to cast off the principle of client choice—a principle that permeates this Bill—in order to keep itself in business.

I stress this point as plainly and clearly as I can. The Government intend to ensure, first, that defendants will be offered a choice of representative; and secondly, that that choice will lie between contracted firms in private practice and, perhaps, a local salaried defender's office.

We have already announced that all franchise firms will receive a contract in the first round. After that, if they continue to meet quality standards and take part in the duty solicitors' scheme, I see no reason why they should not all win further contracts. The choice we intend to offer is enshrined on the face of the primary legislation in Clause 15(9). Clause 15(9) provides that regulations under Clause 15(8)—that is, regulations which limit defendants' choice of representative—may not require the defendant to choose an employee of the commission. As I have explained, the other place has proposed an amendment, Amendment No.30F, that will strengthen that subsection further.

We shall discuss the provisions regarding choice in some greater detail when we come to the next group of amendments. But it may be helpful if I anticipate that and remind the House that, while we are seeking to promote the greatest possible continuity of representation, a person's choice of representative will not necessarily be irrevocable. Regulations under Clause 15(8)(e) will define circumstances in which a change of representative is justified. I say in particular to the noble Lord, Lord Thomas of Gresford, that those will include a genuine and well-founded loss of confidence or other breakdown in the lawyer-client relationship. Regulations under Clause 15(8)(d), dealing with the permitted number of representatives, will define the circumstances, including all jury trials, when a defendant 1296 may choose a specialist advocate as a second representative. It would therefore be possible for someone who is represented by a salaried defender in the solicitor role to choose a barrister in private practice as advocate.

As I explained on Report, the right to choose a second representative as advocate would apply even if the original representative, whether a salaried defender or a solicitor-advocate, had the necessary qualifications to appear as advocate himself or herself. I hope that those examples will convince your Lordships that the Government are committed to providing real choice.

The noble Lord, Lord Kingsland, made a characteristically brief but pertinent contribution to our previous debate on this subject from the Opposition Front Bench. He saw no evidence of any need for salaried defenders; he could not understand how they would enhance competition and quality; and he feared that they would undermine the perception and perhaps the reality of criminal justice.

On the question of evidence, I would refer him to the body of international research and opinion based on comparisons of different systems in other jurisdictions. I described those in our last debate and will not repeat the details now. However, the consensus is that a mixed system, combining private and salaried lawyers, can be the best and most cost-effective way of providing publicly-funded criminal defence services: better, that is, than either a wholly private system such as ours, or a comprehensive public defender system of the type found in some parts of the United States.

The right to choose a representative, which I have already discussed, and the safeguards to protect the independence and integrity of salaried defenders, to which I shall return in a few moments, will, I submit, be more than adequate to preserve the perception and reality of justice.

As for the questions of the noble Lord, Lord Kingsland, about competition and quality, salaried defenders will provide a competitive spur for private sector lawyers and a benchmark to assist the commission to secure value for money—that is, the best possible combination of quality and price. In our previous debate the noble Lord, Lord Hutchinson of Lullington, inferred from this argument the entertaining but mistaken image of a Treasury spy reporting on barristers who waste public money in court. It may help the House if I explain that point in a little more detail, since perhaps it has not been fully understood up to now.

The legal services commission will be responsible for procuring high quality criminal defence services for people who need them. It will also have a duty of seeking the best possible value for money. It will do this, for the most part, by negotiating contracts with lawyers in private practice. The commission will be in a much stronger position to perform that function effectively if it provides some of the services itself. That will give it a clearer and more detailed understanding of what is involved in providing a quality service, how long it should take and how much it should cost. As a provider, the commission will be able to negotiate with more knowledge and authority than if it were solely a purchasing body.

1297 I turn now to what I think are the two main underlying arguments against salaried defenders: that they are inevitably of poorer quality; and that they are inadequately independent and will collude with the prosecution.

In the last analysis quality depends on adequate funding and proper training and support for the lawyers who provide the service. That is equally true whether the service providers are employed, contracted or working at prescribed rates or fees. The criminal defence service will be adequately funded and will have a career structure for its advocates which will ensure that they have regular and appropriate training and support. The Bill requires me to provide the funding that the legal services commission needs to fulfil its duty to provide the advice, assistance and representation required by suspects and defendants in the interests of justice.

Next, I address the need for independence. I have said repeatedly in our debates that I do not accept that a lawyer's professional independence and judgment depend on whether his status is self-employed or employed. I shall not weary the House by rehearsing all the arguments again. But I point out that salaried defenders will not work for the Crown Prosecution Service; they will not even work for the Crown. They will work either for the legal services commission, which will be an independent, non-departmental body, or for bodies established by the commission.

They will be employed as criminal defenders, and I have no doubt at all that, as such, they will dedicate themselves to defending their clients with the same professional skill and judgment, and the same independence, as would barristers or solicitors in private practice. There is simply no danger of collusion with the prosecution and perhaps less risk of an appearance or perception of collusion than where two barristers from the same chambers appear on opposite sides.

All salaried defenders employed by the commission will be operationally independent of the rest of the commission. They will be organised in a separate unit or units and will not have responsibilities for any of the commission's other functions. They will report to a senior lawyer responsible for managing them in a way that respects and protects their professional integrity. I draw attention to this last point in particular in answer to the question posed last time by the noble Lord, Lord Wigoder. A barrister or judge concerned about the competence or behaviour of a salaried defender would be able to make informal representations to the senior criminal defender at the commission, just as he could, in practice, to the head of chambers of a colleague in private practice. In exactly the same way in the case of the Crown Prosecution Service, he could make representations to the Director of Public Prosecutions or the Attorney-General.

Commons Amendments Nos. 30B and 30D are intended to give a slightly better flavour of the fact that salaried lawyers will be employed specifically as criminal defenders. Rather than saying that the commission may itself provide advice, assistance and 1298 representation, the amended Bill would say that the commission could employ persons to provide these services.

Lawyers in our country are rightly proud of their independence, but that independence flows from their membership of a profession and their obedience to the ethical rules which their profession enforces—not from the way in which they are paid. I believe that it is, to more than a little extent, offensive to the many thousands of employed lawyers to assert that the independence needed to advise and act for a client exists only among those in independent practice in the private sector.

The role of your Lordships' House is, essentially, as a revising Chamber. Perhaps I may say that that role was played to a very high order in the passage of this Bill. The Bill is replete with improvements made either in your Lordships' House, or in the other place following suggestions first made here. The purpose and objectives clauses for the community legal service and criminal defence service draw heavily on the principles clause proposed by the noble and learned Lord. Lord Lloyd of Berwick. The report of the Select Committee on Delegated Powers and Deregulation led to the substantial package of government amendments to the powers of the Lord Chancellor to give directions to the legal services commission. These amendments achieved a better distinction between those substantive matters which should be subject to further approval procedures in this House and another place, and those matters of an administrative or budgetary nature. At Third Reading I stated: I believe that the House is now broadly content that the parliamentary procedure attaching both to my powers and the legal services commission's funding code are appropriate".—[Official Report, 16/3/99; col. 690.] I take the opportunity to repeat that I believe that that is broadly so.

The improvements did not stop there. Clause 16, the code for salaried defenders, was inspired by the noble and learned Lord, Lord Ackner. The new clause on litigation funding agreements owes its existence to the persistence of the noble Lord, Lord Goodhart. There are other improvements of substance and drafting by the score throughout the Bill, from Clause 1 about the membership of the legal services commission to the clause clarifying the independence of justices' clerks in Part V.

At the outset of our debates in Committee (col. 487), I promised not to adopt the obdurate approach which we had seen in time past, where the Front Bench was unwilling to accept manifest improvements to Bills under consideration. I described that approach as destructive of the raison d'être of a revising chamber. I hope that I have been true to my word, and can claim some force in saying that this Bill, in its current state, is one in which this revising chamber can take some pride. I submit that to thwart the twice-expressed will of the elected chamber on the issue now before us would be contrary to the raison d'être of a revising chamber. It would bring discredit to this House on an issue where par excellence the will of the elected chamber really 1299 should prevail. On the basis of those explanations and arguments, I commend to your Lordships the amendments.