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Mr. Dismore: I am grateful to the hon. Gentleman for that intervention because I studied the Chinese legal
system when I was an undergraduate. My recollection is that it is based on very different premises from those on which our own common law system is based. As he says, the statutory rights of independence such as we have here are not incorporated in it. Indeed, it presumes guilt, and people have to argue that they do not deserve such severe punishment. He has not done much for his argument by referring to those totalitarian regimes. Their systems do not compare to the system that exists in this country, which will continue to exist after the Government amendments are agreed to and the Bill becomes law.
Mr. Hawkins: The hon. Gentleman is missing the point--probably deliberately and consciously--made by my hon. Friend the Member for Beaconsfield (Mr. Grieve). The point is that, however much things are put in a code, as the right hon. Member for Llanelli (Mr. Davies) said earlier, one cannot alter the ethos of a profession. If the hon. Gentleman could have looked behind him and seen how strongly the right hon. Member for Llanelli was disagreeing with the aspersions that he was casting on the traditions and reforms that the independent Bar has introduced, he would have realised that his case is not supported, even by those on his own Benches.
Mr. Dismore: I disagree with the hon. Gentleman. If the House divides later, we shall see where the support lies. Although, in the past, we have had professional requirements, clause 37 now introduces statutory requirements, which go as far as, if not further than, existing professional requirements.
We have heard a lot of humbug about the position of salaried state employees. The so-called "independent" Bar gets practically all of its not inconsiderable income from state funds, whether from the Crown Prosecution Service or from legal aid for defence work. In practice, it makes little difference whether the money comes from that direction or as a salary. It is a false distinction to draw.
Moreover, a salaried employee is in a stronger position of independence than somebody in private practice, who is subject to pressures to earn a living that do not exist for somebody on a salary. It is extremely important that we consider those distinctions. For example, somebody in private practice must always look to see where his next case will come from. If anything, he is more likely to want to suck up to those providing the work than somebody who is given the work as part of his job.
One important factor is the job security that a salaried employee has through existing employment protection rights, which will be strengthened by the Government if the Employment Relations Bill, which is to be considered after this debate, is enacted. One of my constituents is a CPS employee, and she has felt it appropriate to bring a case before an employment tribunal against the CPS to enforce her employment rights, without fear or favour in doing so. That right would not be available to an independent barrister, who may, for some reason, find himself struck off the CPS list simply because the CPS has decided that it no longer likes his work. Therefore, independent contractors have rather less protection against the pressures about which we have heard a great deal from the Opposition than employed advocates.
Mr. Grieve:
Does not the hon. Gentleman make a compelling point against his own case? If an independent
Mr. Dismore:
The hon. Gentleman makes my case for me. If we have in independent private practice people who depend on that sort of work, without the current employment protection laws they will inevitably do the sucking up to which the hon. Gentleman referred. We are strengthening our employment laws, and we have the necessary duties in clause 37 and a code of practice in clause 16. If an employed barrister were, for some reason, subject to disciplinary action for defending an individual too fearlessly, he would be extremely likely to rely, either through the judicial review proceedings, on his overriding duties under clause 37, or on the code of practice in clause 16, or would have an absolute defence in any disciplinary proceedings before an employment tribunal.
We have heard a lot of humbug from Conservative Members. All that is proposed for the criminal defence service is a pilot scheme. I think that it will be an interesting development in our legal system. It will potentially lead to a mixed economy and valid competition to the private Bar, which has had its way for far too long. I welcome the Government's proposals.
Mr. Grieve:
As I have done on several occasions in debates on this legislation, I must first declare an interest as a practising member of the Bar. I apologise for not hearing the beginning of the Minister's speech as I was delayed, although familiarity with his arguments will have come from the many hours that were spent listening to his predecessor in Committee. I recollect that the Minister was also present for much of the time.
The issue was put succinctly by the right hon. Member for Llanelli (Mr. Davies). People who are caught up in the criminal justice system are gradually being ground up, perhaps justifiably, by a Moloch descending upon them with the ultimate intention of punishing them for misdeeds of which they are accused. As the right hon. Gentleman correctly said, within the bounds of what is humanly feasible, we have in this country, by dint partly of accident and partly of tradition, tried to erect a system of justice that is fair and impartial, especially in respect of the judiciary.
Nevertheless, it remains the case that for those on the receiving end, the whole system--including the prosecutor and the judge--is an arm of the state. In reality, that is so. That arm of the state may be designed or intended only to punish them for their wrongdoings if they are guilty, but it is the system into which they have been dragged. In those circumstances, whether paid for by the accused or through the legal aid system, the only person who will stand up for them and be their champion is their representative, be he the solicitor whom they have instructed or, if the matter is in the Crown court, their advocate--the barrister. If, in the future, it is their solicitor advocate, so be it. The independent advocate will represent their interests.
Those who practise in the criminal courts know that, in the vast majority of cases, the people who are accused of murder and grave offences, such as robbery and other
headline offences, are poor, inadequate, inarticulate, eccentric, or mildly or severely deranged and have no one else to represent their interests apart from those who, through the legal aid system, have been appointed to act for them.
Mr. Hawkins:
Does my hon. Friend agree that one of the most powerful points that Baroness Kennedy of The Shaws made when she attacked the Government's proposals was to ask who, under the new system, would represent clients who allege serious miscarriages of justice, and how could advocates represent defendants if a specific and specialised knowledge of, for example, mental health law was required? Will people with those specific difficulties be unable to be represented properly because there will not be sufficient expertise in the new nationalised criminal defence service?
Mr. Grieve:
I agree with hon. Friend. I concede the point that some of the details of this proposal may enable the problems that undoubtedly exist to be bypassed. However, I stick to the general point that concerns me even more, which is about the ethics behind the system that it is suggested should now be established. I do not accept that a public defender system can adequately and properly meet the needs of the accused person, so as to reassure him and me--leaving aside my role as a barrister, but acting as a legislator, a Member of the House and a member of the public--that the role is being adequately discharged by those who have been appointed to do the job.
I come back to what I said to the hon. Member for Hendon (Mr. Dismore) about the prosecution system. I do not seek to draw a direct comparison between the two, but it is instructive that there are pointers to the dangers of the public defender system in the public prosecutor system, albeit that the two are different. It is well known in my profession that excessive identification with an individual barrister who has been retained to do only prosecuting rather than defending work always causes concern among his fellow professionals. This is an historical matter that goes back long before the CPS.
One of the great strengths of our system of advocacy and justice, which is much commented on by foreigners who come here to observe it, is the interchangeability of advocacy between those who prosecute and those who defend. When that interchangeability diminishes, especially at an advocacy level--as it has done over the years for those who are retained almost non-stop to prosecute--anxieties creep in about impartiality. That concerns the prosecutor's role, but it is an interesting example to look at when one considers the whole issue of the proposed public defender service. What are the criteria by which the success of the public defender will be judged? Will it be his fearless championing of the individual whom he is representing, or will it be his ability to dispose of business quickly through the courts, thereby leading to a lessening of costs, which underpins much of what the Bill is all about? I think that the pressures will be for the latter.
5.15 pm
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