House of Commons Hansard Debates for 14 Apr 1999 (pt 42)

Mr. Garnier: How does the hon. Gentleman know what privately funded QCs earn?

Mr. Dismore: Those figures have been published in answer to parliamentary questions that I have tabled.

Mr. Garnier: Will the hon. Gentleman give way again?

Mr. Dismore: No.

Mr. Garnier rose--

Mr. Deputy Speaker: Order. We cannot have a conversation between two hon. Members who are both on their feet at the same time. The hon. Member for Hendon (Mr. Dismore) did not give way a second time.

Mr. Dismore: The issue relates not only to public funding. I suggest that the hon. and learned Gentleman reads the parliamentary questions that I have tabled on that issue.

The Bill provides the opportunity to consider the services provided by the central players in the legal system--the judges. The judiciary is not representative of modern society. There are almost no women in the higher echelons and no senior judges from ethnic minorities. Despite the Lord Chancellor's best efforts, judges are still predominantly drawn from the same narrow background. The judiciary is increasingly important and its powers are ever growing because of the Human Rights Act 1998, the judiciary's involvement in constitutional issues, especially after devolution, and judicial review, so the fact that judges should reflect our society also becomes more important.

The Lord Chancellor has rightly demonstrated that his policy is one of appointment on merit, and I would not for one moment suggest that judicial appointments should not be made on merit. However, I question whether the criteria against which that merit is tested and which form the basis for appointment should not also be reviewed.

The judiciary is essentially drawn from the Bar. Without change, there is little prospect of major reform of the constitution of the Bench. Why should a barrister who has spent many years in the adversarial cockpit exclusively be deemed to have the best qualifications to be an impartial judge? We should re-examine the qualifying criteria and perhaps, as Lord Borrie suggested in another place, broaden the base to include chairmen of tribunals and academic lawyers. They could be monitored in the same way that part-time judges are. Let us remember that employment tribunal chairmen already often decide extremely complicated points of law and substantial compensation claims.

I agree, to some extent, with the hon. Member for Torridge and West Devon (Mr. Burnett), who spoke for the Liberal Democrats, that the time has now come for a judicial appointments commission, like those adopted in many other common-law jurisdictions, to include both lay and lawyer members to consider recruiting, screening, investigating and evaluating judicial candidates.

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Such a commission could also be responsible for maintaining a register of pecuniary and non-pecuniary interests for the judiciary. That issue has been thrown into sharp focus by not only the Pinochet case but the recent revelations in the Sunday newspapers concerning potential financial conflicts of interest over directorships held by some judges. Two or three times in my professional experience, when acting for accident victims, I had doubts about the part-time judges trying the cases because I knew that the judges, in their ordinary jobs as barristers, drew their practice primarily from defendant insurance companies. My clients picked up my concerns and were concerned themselves about whether they had a fair trial.

The argument that we can expect judges to police themselves on outside interests is similar to the arguments that politicians used to advance, which have been rightly and firmly debunked throughout the remainder of public life. The judiciary's position should be no different. Those before the courts are entitled to the reassurance that the judge has no interest affecting the case. That would not only be good for the litigants but provide added protection for the judiciary against allegations of bias and would provide clear guidelines to judges in what is at present an uncertain area. It will not have escaped the notice of my hon. and learned Friend the Solicitor-General that more than 100 Members have signed early-day motion 456 calling for reforms along those lines.

Finally, I turn to the problems facing people who have been bereaved or severely injured as a result of serious accidents and disasters. The public inquiry system that has developed over the years is inconsistent; it leads to considerable duplication with additional expense; it creates delays leading to sometimes contradictory outcomes, and it almost always increases the suffering and distress of relatives and victims.

As the Bill proceeds into Committee, I urge my hon. Friend to consider adding provisions to deal with at least some of the system's more glaring inadequacies; for example, to empower the chair of an inquiry, who is often a judge, to act also as coroner, to avoid the need for an inquest going over the same ground.

I was involved in the legal consequences of the King's Cross fire. The 93-day public inquiry was followed by a two-week inquest, which largely covered the same ground. Inquests were also held after the full public inquiries into the Zeebrugge, Kegworth and Piper Alpha disasters and the Clapham rail crash, adding little to the public inquiry findings but much to the distress of the relatives.

We could also shorten and simplify civil proceedings for compensation, and make them more certain, by allowing inquiry findings of fact to be binding in subsequent civil proceedings. We need to ensure that the possibility of criminal proceedings does not block the whole process. It is outrageous that the Marchioness families had to wait seven years, and undergo the most appallingly expensive and time-consuming esoteric legal wrangling, before they finally secured a public airing of the issues, only for the coroner's jury findings of unlawful killing to fall on deaf ears.

I very much support the Bill, but we could add to and improve it in Committee, to improve access to justice and the quality of justice and to reduce cost.

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8.36 pm

Mr. Paul Stinchcombe (Wellingborough): I, too, declare at the outset my interest as a barrister. I was involved in the litigation following the Marchioness disaster, to which my hon. Friend the Member for Hendon (Mr. Dismore) referred.

Everyone in the Chamber and, I dare say, the country agrees that it is a cornerstone of any acceptable notion of freedom that all citizens should have equal access to the law and that, once before the law, all citizens should have equal treatment under it. Notwithstanding the unanimous opinion that equality before the law is a precondition of a civilised society, we have not achieved that precondition. The root cause of that failure is simple--legal services in this country have been seen by many who provide them as essentially a commercial commodity to be bought and sold in the marketplace, rather than as an indispensable facet of our human rights.

As a junior barrister, I heard another junior barrister ask yet another, "How many crates of champagne can you get in the back of your Ferrari?" I heard an eminent silk complain, "The hardest £200,000 to earn every year is the £200,000 that takes you to your million." I recite those incidents not to add to past diatribes about fat cats. Like other hon. Members, I am well aware that many practitioners operate from the high street, law centres, or general common law and criminal chambers, where financial rewards are far from excessive.

I recite those incidents for the good reason that any legal system built in significant part around the financial rewards for practitioners is bound to be prey to twin dangers. The first is that access to legal services becomes the privilege of the rich rather than the right of everyone. The second is that when the state is forced to pick up the bill of those who are unable to pay, it, too, may be faced with a cost burden that is too high for the taxpayer easily to bear.

I believe that our history demonstrates those dangers to have come to pass in our jurisprudence and jurisdiction. With prices fixed by the private market, the poor and the not so poor have been largely unable to pay the costs of litigation, and the means by which Governments, during the past 50 years, have sought to meet that gap--the legal aid system, established by Labour and seen by us for many years as a vital pillar of the welfare state--has come under huge strain.

Five decades later, with legal aid still available on only a limited basis, the costs of central Government assistance have spiralled and, as my hon. Friend the Minister of State said when he introduced the Bill, we pay more, but get less.

Those are realities with which the Government must deal as they seek to achieve aims that are in tension--to enhance the access to justice of our citizens, and yet simultaneously to control the public costs by which, even on a limited basis, access has previously been provided. Unsurprisingly, faced with a problem--a dilemma--of that difficulty, which calls for radical change when radical change is inherently controversial, the Government have introduced a Bill that is controversial in part. It is a series of hard choices, the results of many of which are very good--I welcome in particular the community legal service--although some cause me greater concern.

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I am concerned about the lack of a Government- inspired objectives clause, and look forward with great interest to the words that I hope will be penned by my right hon. and hon. Friends in due course.

I have some sympathy with the trenchant speech by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) in so far as he voiced the specific concern about whether those who are vulnerable--the disabled, and especially the young--should be forced to seek conditional fee agreement funding for their personal injury cases.

I hope that my hon. and learned Friend the Solicitor-General will reassure me on two aspects, which have not been mentioned in detail. The first concerns the failure to extend legal aid to representation before tribunals; the second concerns the funding of civil legal aid.

All hon. Members present must be well aware that tribunals have very wide and important jurisdictions. Their decisions can have grave implications for many individuals, in fields as diverse as immigration, employment and social security. It has, therefore, been of considerable concern to many that those individuals have often been denied representation.

I thought that my Government would share that concern, because they have repeatedly said that one of the aims of the current reforms of publicly funded legal services is to prioritise social welfare law. The White Paper "Modernising Justice" says that in terms. It says that among the areas given greatest priority will be "social welfare cases" because those concern "people's basic entitlements", such as their "correct social security benefits"--to which basic entitlements we can surely add basic employment and immigration rights. What better way is there to give credible support to that asserted priority than to extend legal aid representation to cases heard by such tribunals?