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Mr. Hawkins: Will the right hon. Gentleman give way?
Mr. Davies: I will in a moment. I hope that the hon. Gentleman's next intervention will not be as deep and heavy as his last one.
Judges will be chosen from practitioners with experience of criminal cases, who will have spent all their professional life working for the state prosecution and defence services. That is unhealthy.
Mr. Hawkins:
As the right hon. Gentleman appreciates, I very much agree with the argument that he is developing. Would he accept that it might be even more dangerous if advocates spent not half of their career, as he suggests, in the nationalised criminal defence service and the other half in the Crown Prosecution Service, but spent their entire career working for just one of those services? Someone may spend his entire career in a nationalised criminal defence service, becoming entirely hidebound by the pressures that that state employment may bring.
Mr. Davies:
That is a danger as well. The point is well made.
I move on to evidence and procedure. Perhaps more so in criminal matters than anywhere else, the rules of evidence, especially, and those of procedure are extremely important. Those rules grow out of cases, situations and lawyers' perceptions. There is a danger if all the lawyers involved are working for the state and if all their experience is in a state service. At the end of the day, the state is the prosecutor. The rules of evidence, the rules of procedure and all the books that are written about evidence and procedure will be dominated by advocates who have worked for the state in the criminal justice system.
I shall digress before I resume my place. Years ago, I was rummaging in the Library when I came across a book with an extraordinary title. I still cannot believe it. I still think that perhaps I dreamt it or I was half asleep. Believe it or not, the book was called "Vishinski on Evidence". We are living in a period where history has come to an end. For those of the present period, I shall explain that Vishinski was Stalin's chief prosecutor during the 1930s show trials. I think that he ended up for a short time as the Soviet Foreign Minister, either before or after Molotov. I have not been able to find the book since. Perhaps it has been removed.
I thought, "What did Vishinski know about evidence?" I then thought, "Vishinski knew everything about evidence" because he was the evidence. He made the evidence. He prosecuted and probably there was no defence service. Well, perhaps there was some sort of Stalinist defence service.
We must be careful. I do not like the word "nationalising". I think that that is the sort of word that the hon. and learned Member for Harborough would use. Did he talk about pale pink? Once we make the entire criminal justice system become dominated by the state, we could have the difficulties and problems that I have described.
I was going to say that I hope my hon. Friend the Parliamentary Secretary will think again, but we are not on Report. I am sure that his instructions from the Lord Chancellor contain in large capital letters the words, "Resist. Resist. Resist." I shall not ask him to think again--perhaps he knows, anyway. I say to him in all honesty and good faith, not as a blatant vested interest, that it saddens me that my party and my right hon. and
hon. Friends are going down this road and enabling the state system to dominate completely the defence of criminals and the rule of law.
Mr. Burnett:
I am particularly delighted to follow the right hon. Member for Llanelli (Mr. Davies), who made a marvellous speech. I should declare an interest: I am a solicitor, but not a practising one.
The grouped amendments deal with the Government's intention to set up through the Bill a state defender system. It has been opposed by me and my party in this House and in the other place. The Government claim that defendants will always have a choice between an independent lawyer and a lawyer employed by the criminal defence service.
I wait to hear from the Minister what notice defendants will be given of that option. What will they be told? When will they be told? By whom will they be told of that choice? Will there be a statutory duty on any individual to give proper and complete notice of the choice? We are dealing with the rights of people accused of crimes--people who will have the vast apparatus and resources of the state arraigned against them.
I pay tribute to my noble Friends Lord Thomas of Gresford and Lord Hutchinson of Lullington who, as the right hon. Member for Llanelli and the hon. andlearned Member for Harborough (Mr. Garnier) both acknowledged, made excellent contributions in the debate in the other place. I thank both for their generosity.
My two noble Friends made cogent and effective speeches reported in columns 412 and 416 of Hansard dated 14 July 1999. I also commend to the House the speech of Lord Kingsland, reported at column 418. His speech was clear, concise and compelling. To my mind he made four bulls-eye points, which I shall summarise.
First, Lord Kingsland argued, there is no evidence of a need for a state salaried defender system. Secondly, he asked how the introduction of a partially nationalised system would enhance competition. Thirdly, he asked what evidence there was that its introduction would improve the quality of criminal justice. Finally, Lord Kingsland rightly asserted that the introduction of state defenders would undermine the perception and perhaps the reality of criminal justice.
We shall have the state on both sides of a case--the prosecution, rightly, represented by the Crown Prosecution Service, and the defendant represented by a state defendant. To most of us in the House, that is a glaring conflict of interest.
Mr. Dismore:
I ought to declare an interest: I am a solicitor, although I have not undertaken a great deal of criminal practice recently. However, I have practised in the criminal courts.
I am grateful to my hon. Friend the Minister for referring to my early-day motion supporting what the Government are trying to achieve, which has been signed
by 58 parliamentary colleagues from both sides of the House. I am afraid that I was not in the Chamber when he mentioned it, but I am grateful for his recognition of the strength of feeling in the House that it reflects. Indeed, he had completed his remarks when I entered the Chamber and the hon. and learned Member for Harborough (Mr. Garnier) was reaching his peroration. My initial reaction was to ask, "Where's the beef in that argument?" I have listened to many hours of debate on this issue in Committee and in the Chamber and, so far, I have not detected any meat in it, except for the beef made on behalf of the barristers and Queen's counsel protection club, which the hon. and learned Member represents.
I regret that I have always found the barrister profession to be very conservative and it inevitably rejects the arguments when any sensible reform of the legal system--such as the extension of conditional fees under the Bill or rights of audience for employed advocates--is put forward. Every single attempt to open up the profession is resisted by the Bar, and it is crying wolf yet again.
Mr. Garnier:
I shall not take the bait in respect of members of the barrister profession, because I do not think that I need to bother with that. Would the hon. Gentleman care to look at the Division list of 14 July, when this matter was debated in the other place? Can he tell me the percentage of barristers who voted for the amendment tabled by Lord Thomas? I think that he will find that it is a tiny percentage of the overall majority. His argument is not improved by his abusiveness, and he ought to try to concentrate on the underlying arguments. I do not know whether that idea appeals to him.
Mr. Dismore:
The hon. and learned Gentleman's intervention does not take the matter a great deal further. I simply said that whenever a law reform comes before the House the barrister profession seems to be agin it. I was about to address an argument relating to clauses 37 and 16 that he touched on briefly, but did not develop.
A duty of impartiality and independence is imposed on advocates for the first time by clause 37. That may have been a professional requirement, but it will become a statutory duty as well. The Bill goes beyond that, because clause 16 provides additional protection through the code of conduct, which will be subject to approval by the House. It will put in place
Mr. Grieve:
Returning to the theme of "Vishinski on Evidence", the hon. Gentleman will agree that the constitution of the legal profession in the Soviet Union always provided protections on paper, including that of the role of lawyers in defending individuals, but they were of absolutely no importance because no such ethos existed.
"duties to protect the interests of the individuals for whom services are provided . . .
The duty to the court is set out in clause 37, and all those matters will be dealt with by the code of conduct. The Bill provides much stronger protection for advocates, whether they be employed or not employed, against improper resistance from whatever quarter.
duties to avoid conflicts of interest . . .
duties of confidentiality".
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