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Mr. Dismore: Should not the response to the criticism of block contracts be to consider the trade union legal schemes, which have operated a block contracting system for decades? Through that process, they have achieved cost-effective and high-quality legal services, which are provided by specialist practitioners. I see no reason why the new scheme should not operate in a similar way.
Mr. Hawkins: The hon. Gentleman has extensive experience of working in that area, but I think that he would recognise that Baroness Kennedy suggested in the debate on the Bill in another place that the safeguards to ensure that the right things happen were not built in. The hon. Gentleman takes his own Government on trust, but the House has a duty to scrutinise what the Government propose. I say that there are not sufficient safeguards in the Bill to ensure that what the hon. Gentleman wants will happen.
I have no doubt that the trade union schemes have detailed rules and safeguards, but there are none on the face of the Bill. There should be. That is why Baroness Kennedy and I are concerned. Let me remind the hon. Gentleman, and Ministers, of some of the other things that Baroness Kennedy said. I agree with her criticisms. She says that she learned in her early days at the Bar--as I, like all other young barristers, did--that clerks in chambers had a clear idea of the importance of finding the right barrister for a particular case.
Baroness Kennedy rightly asked:
Baroness Kennedy's savage criticism of the criminal public defender system should cause Labour Members great concern. She said:
The powers that the Bill introduces for the Lord Chancellor were rightly criticised by my hon. and learned Friend the Member for Harborough. They also received detailed scrutiny in the other place. The General Council of the Bar, on whose inner cabinet, the general management committee, I had the honour to serve from 1992 and 1995, points out that a report by the House of Lords Select Committee on Delegated Powers and Deregulation sharply criticised the wide-ranging powers that the Bill would hand to the Lord Chancellor, who would be unchecked by parliamentary scrutiny. That took up much time in another place and no doubt will here,
perhaps in Committee. Although I do not expect to serve on the Committee because of other commitments, it is important on Second Reading to consider carefully whether the Lord Chancellor, who has often been compared to Cardinal Wolsey, in this Bill combines his usual Wolseyish attitude with that of Wolsey's boss through the so-called Henry VIII clauses that give him such untrammelled powers.
The Bar Council adds that the powers in the Bill as it stood when originally introduced included the constitutionally unprecedented power for the Lord Chancellor unilaterally to change the rules of independent legal professions. As noted earlier, that powerwas repeatedly and unsuccessfully sought by the pre-democracy apartheid Governments in South Africa. The Lord Chancellor has since undertaken to limit such interventions to rules that he considers unduly restrict rights of audience and to litigate. The Bar Council would like the powers to be subject to approval by a majority of the senior judges. That is an important constitutional safeguard in terms of the doctrine of the separation of powers.
The Law Society has no doubt sent its helpful briefing notes to all hon. Members. It is concerned about the Bill's equal opportunities implications. It would be helpful if the Government, on more mature consideration, were prepared to allow legal aid to continue for personal injury cases involving the elderly, those who suffer from mental incapacity or illness, and, most importantly, children. I sincerely urge the Government to consider those special needs.
I am concerned by the danger that the Government's introduction of the block contract system will make it much more difficult for people in rural areas to obtain a proper range of independent legal advice. Legal fees insurance, whose use the Government are keen to expand, will be expensive for all but the clearest cases. The uplift on no win, no fee will increase costs. While I support people taking out legal expenses insurance, it is wrong to make the entire system dependent on its existence, as the Government seek in these proposals. Those are serious concerns which have been commented on at length in another place and by many independent commentators.
Conservative peers have rightly described the Government's proposals as nationalising the criminal justice system. In criminal cases, it is important to maintain the suspect's or the criminal defendant's confidence in the system and ensure his or her effective participation in the process. That is what the Government said that they wanted in the White Paper "Modernising Justice". I am not sure that they have achieved that.
My constitutional concerns are among the most serious matters that the House must consider. I hope that the Government, if not today, then in Committee, will consider further questions, particularly in relation to ethnic minorities and cultural differences. How will the Bill and the Government's reformed legal system ensure that those issues are properly addressed? How will the duty of advocates to a court, particularly under a public defender system, to act in the interests of justice be measured and monitored in relation to clause 36? How will the impartiality of the public defender system be maintained? How will lawyers' independence be measured? What monitoring procedures will be put in place? What motivation will there be for lawyers to
achieve the most appropriate results for their clients? What steps will be taken to preserve public confidence in what is effectively a nationalised system?
Mr. Robert Marshall-Andrews (Medway):
I begin by declaring an interest as a practising member of the Bar. I declare another interest, which is that 25 years ago I was one of the team working in the Islington legal advice centre, which was one of the first to be set up. That part of London was at the time a deprived and destitute area and nothing like the new Labour paradise that it has since become. We set up the centre in a church hall. We had our 25th anniversary last year and it was attended by many elderly people, some of whom were unrecognisable from 25 years before. We were all proud to have been part of that centre, and the opening remarks by my hon. Friend the Minister could not have been more welcome in those circumstances. I congratulate him, the Lord Chancellor and the Government on setting up the community legal service to give some coherence and direction to the patchwork of provision, especially in welfare and housing law. I agree that it is high time that a larger proportion of our legal aid budget was spent on those worthy aims.
I also congratulate the Government on that part of the Bill that will extend on a statutory basis the right of audience of solicitors to the higher courts. Many members of my profession will not thank me for saying that, but I believe in the virtues of a split profession and they are not assisted by restrictive practices. The provision will not make that much difference. Solicitors are welcome to taste the delights of myopic, querulous and bad-tempered judges if they wish to do so, and I am confident that few of them will. I have never perceived any reason for such a restrictive practice and I welcome the change.
I further congratulate the Government on the provisions in the Bill that will ensure that those who apply for silk and are unsuccessful will bear the costs of that unsuccessful application. I give that my full-blooded and wholehearted support, realising as I do that it has no retrospective effect. That brings me to the end of that embarrassing eulogy on the Bill, because it also contains two aspects that are dangerous. One of them is profoundly dangerous for civil liberties, for all the reasons so eloquently articulated by my right hon. Friend the Member for Llanelli (Mr. Davies) in his long and valid analysis of the setting up of the criminal defence service.
I take the point that the Bill includes a provision to ensure the ability of those charged with criminal offences to choose their advocate from the criminal defence service or from the independent part of the legal profession, but the Bill does not set out in stone or in any other way the relative quantum that is to be allocated between the independent profession and the criminal defence service, which will be entirely in the employ of the state. Of course, it is the avowed intention of this Government that the criminal defence service employed by Government will take a small part of the quantum of funds that are available and thus genuine choice will remain. I accept the Lord Chancellor's assurance on that point, but we cannot question him about it in this Chamber. That is a pity and an anachronism, but I accept my hon. Friend the Minister's assertions on the point.
The present Lord Chancellor is, of course, a luminous lawyer and a beautiful human being. He is, no doubt, untouched by the trappings or temptations of power. However, his predecessors in the past 1,200 years have not all been so luminous and there is no guarantee that his successors in the coming millennia will be any better or worse. In those circumstances, handing to an unelected Government appointee the power to control those who defend against the state is dangerous and unwelcome. I know that my hon. Friend the Minister takes that point seriously and I hope that he will consider it further in Committee. That provision concerns me, but in itself would not cause me to take the grave and serious step of not supporting the Government over the Bill.
However, the main issue in the Bill is of such gravity and seriousness that I say, with a heavy heart, that I will be unable to support the Government on Second Reading. When the Bill returns to this House after its Committee stage, it may be in a different form and worthy of support, but at the moment there is a profound lacuna and danger central to the Bill and it must be addressed. It is the removal of legal aid from those who wish to bring meritorious claims for personal injury.
Contrary to the imputations that my hon. Friend the Minister may have made in his remarks, my reservations are not those of a reactionary lawyer. As has been pointed out already, those reservations are shared by the Consumers Association, the Law Centres Federation, the Advice Services Alliance, the Federation of Independent Advice Centres, the Child Poverty Action Group, the National Consumer Council, Liberty, Justice, Shelter and the Legal Action Group. To that list it is now possible to add the Association of Personal Injury Lawyers, a robust body which was the strong proponent of conditional fee agreements. It has recently stated that the provisions in the Bill are a mean trick, because it was never intended that conditional fee agreements should replace legal aid.
"Will there be space in the block contracting system for the securing of the right barrister for a particular case? Will it be possible for any solicitor up and down the country to pursue the well known advocate who is a leader in the field of prisoner rights if he is not on the solicitor's normal block contract list of counsel? If the solicitor has a case involving mental health"--
I dealt with many mental health cases in my practice at the Bar--
"will he be able to secure the specialist advocate who deals with mental health cases and has taken many of them to the Court of Appeal and the House of Lords?
That is again a field in which I conducted many cases. Those are important points, and I am no more reassured than she was by the Bill.
Will the solicitor be able to secure the counsel who have been at the heart of so many of the miscarriage of justice trials? Will the solicitor be able to seek out barristers who have specialist knowledge and understanding of, for example, domestic violence?"
"I know that our Lord Chancellor is committed to human rights . . . But might he also be creating another legacy--the introduction of a system which can only disadvantage the many, particularly the poor?"--[Official Report, House of Lords, 14 December 1998; Vol. 595, c. 1157-58.]
It is of concern that the Lord Chancellor has argued in respect of the Bill the exact opposite of what he argued in opposition. His response when he was taxed with what he had said in 1989 in the Lords debate was interesting. It struck me as a paradigm of the reason why he is regarded by many, even on his own side politically, as arrogant and dismissive of challenges from whatever political direction. He said:
"I am minded to invoke what I believe a Victorian judge said when taxed with a previous decision he had made from which he had intellectually parted company in his own mind when sitting in an appellate court. He said something along the lines, "That is how it appeared to me then, but it is not how it appears to me now". If great judges can get away with that, mere Lord Chancellors can as well."--[Official Report, House of Lords, 16 February 1999; Vol. 597, c. 617.]
We are not taken in by his false modesty. It is yet another example of Newspeak.
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