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Lord Borrie: Does the noble Lord agree that the quotation he gave, and many of his remarks, would be relevant if there were a proposal in the Bill to replace the independent Bar by a state service?
Lord Thomas of Gresford: I entirely accept what the noble Lord says. However, things being what they are, it is one step towards the replacement of the independent Bar by a national defender's service of employees. I resist that step.
4.45 p.m.
Baroness Mallalieu: Amendment No. 155, and the amendments grouped with it, address a part of the Bill which gives me greater anxiety than any other. In supporting the amendment I must first declare my interest as a practising member of the criminal Bar.
Whatever the scope of the intended use of these provisions, they seem to me to be in danger of breaching three principles which I think important not just to those who defend in criminal cases and those who are accused of crime but to the interests of justice and therefore to the public as a whole. The first principle--it has been referred to--is that the state, which makes the accusation, should not either control the defence of those who are accused by the state or even appear to the accused to do so. The state pays for the defence in legally aided cases. But it must not, either in reality or in perception, call the tune. The ability of an accused person to instruct his or her own independent defence lawyer is the prime safeguard of that principle.
The second principle which is enshrined in Article 6 of the European Convention is that the accused should have the right to be defended by a lawyer of his choosing. The wording of the Bill, we are told, is not itself in breach of that article but I fear its implementation could easily be so in practice, with a defendant being told in effect, "Mr. Bloggins of the criminal defence service will be down to defend you in the morning. Take it or leave it".
There can be no quarrel with the restriction of a publicly funded defendant's right to choose only from those who practise to the required standard or those who have the relevant experience. Of course in reality a lawyer of his choice may well not be the lawyer of his choice. The top Silk may be unavailable. So may his second or even his third choice. But I find it hard to see how the accused in reality would be able to have any meaningful choice of advocate under the proposed salaried defender system, as he does at present when the accused himself--usually, it is true, he acts on the advice of his solicitor--has the opportunity to select the most appropriate available advocate for his particular case.
The third principle was well expressed, if I may say so respectfully, by the noble Lord, Lord Hutchinson of Lullington, at Second Reading, at col. 1148 of Hansard of 14th December 1998. He said that,
- "access to the best should be available for the least favoured and the most stressed".
Our present system is widely admired. In my field of practice most of those at the very top of the profession still do legal aid work and are therefore available to defend the poorest defendant in the most serious trouble. That is the great strength of the criminal Bar in England and Wales. We surely must not endanger that.
In his speech at Second Reading, the noble and learned Lord, Lord Falconer, said that it was not his intention that these provisions should apply to the majority of cases. At col. 1200, the noble and learned Lord added:
- "It will more likely be filling gaps and, for example, providing defence services in the magistrates' courts".
- "The intention is that, in time"--
- "the Commission will provide all, or nearly all, representation exclusively through contracted or salaried defenders, whom it will require to meet defined quality standards".
- "There should be equality of arms between prosecution and defence".
There is no convincing evidence, so far as I am aware, that there is a need for this part of the legislation at present. If and when such a need ever arises, that is surely the time for debate and possibly legislation to fill any gap--but not now, when there are ample, independent practitioners ready to do the work.
Perhaps I may say, with great respect to the noble and learned Lord the Lord Chancellor, that to take such powers now fuels a rife suspicion that it is intended to set up a cheaper salaried service to undermine and undercut independent practice. We all understand his desire to reduce costs where possible, particularly in the light of other pressing government priorities. But it would surely be ironic if, in seeking to fulfil promises to increase choice and to provide better services in other areas, the seed should be sown now for the destruction of a system which allows our very poorest people the very best there is when their freedom is at stake. I urge the noble and learned Lord to think again about this matter, particularly in the light of the reassurances which he sought to give during earlier stages of the Bill to the independent legal profession, which he has said he is pledged to uphold and support.
Lord Hutchinson of Lullington: I rise to support the previous two speakers and I am sorry if I do so at a little length. This is a matter of profound importance. My inquiries of the Bar Council reveal that there was no consultation about the possibility of introducing a salaried public defender. I do not wish to embarrass the noble and learned Lord the Lord Chancellor in front of any of his colleagues, but I cannot help believing that deep down he is a "radical libertarian". If he is that--and I think of the refreshing, open-minded approach to matters of principle and substance that he has brought to our deliberations--he could most honourably listen to the voices which come from behind him and from other parts of the Committee and face the fact that he has gone too far. I recognise that people who sometimes do not go too far often do not get anywhere. Nevertheless, if one goes too far it is important to recognise the fact and set it right.
What is this character, the public defender? He has been introduced into the Bill as a complement to the state prosecutor, who emerges later in the Bill. Is this salaried employee, who is to be assigned to and not chosen by the defendant in jeopardy of his liberty, to be a full-time advocate, providing a specialist service, answerable only to his client, the court and to his own professional body? Where is his daily workplace to be? What are his career prospects?
How complicated this has all become. I am glad to see the noble Lord, Lord Mishcon, in his place because when I was a young man at the Bar the noble Lord occupied an office near Lambeth magistrates' courts. He was, if I may say so, a high street solicitor; the very essence of the provision of legal services to the ordinary person. I was a young man at the Bar and the noble Lord instructed me time and again in small criminal cases. He was a first-class advocate in a magistrates' court. He did not want and had not the time to be a full-time advocate. He did not want to deal with cases which were going for trial and where questions could be asked in a magistrates' court with a view to what was going to happen in the Crown Court. He did not want to be involved in cases which would probably go to the Divisional Court or the Court of Appeal because he had a huge, vital practice looking after members of the public in a wide area of the law.
Sometimes the noble Lord would ask me to do cases for nothing; sometimes he would ask me to do cases for a very small fee. There was no problem. He was in his area and I was in mine. We provided a perfectly straightforward, cheap, efficient service to the ordinary person who is often involved in matters of great importance from the point of view of human rights. Why must we have this state salaried defender?
Of course, the noble Lord, Lord Mishcon, has built up a tremendous monument and a wonderful firm of solicitors. I of course, as a mere member of the Bar, have built up nothing. He ended up with Lady Diana. I had to be content with only Lady Chatterley. But there we are--we each had our own areas and the matter was perfectly straightforward. Now we have this massive Bill, the legal aid proposals and the public defender.
We have been vouchsafed only two pieces of information--and the noble Baroness, Lady Mallalieu, has referred to both--as to what the public defender will be. He is to be used only to fill the gaps. So this great new bastion of liberty is to be a part-time, stop-gap advocate. How would the noble and learned Lord the Lord Chancellor feel if, when he had a burst appendix, he was told that a stop-gap, temporary surgeon would look after him when he went into hospital, having been rustled up from the admin block?
The other reference appears on paragraph 97 of the Explanatory Notes. According to that text, the lawyer is to fulfil a more zoological role: that of the guinea pig or the Trojan Horse, to provide,
- "the Commission with better information about the real costs of providing these services";
The Bill focuses on the needs of users and not providers. But what will this user get from the salaried employee operating opposite his colleague in the CPS? I gather that there may even be cross-appointments between the two in order to widen what is called their "mutual experience". What confidence will the user have in the independence and detachment of the advice and that crucial confidences will be kept? What will be the perception of him?
I make no trade union point because a safe, salaried job in the commission would be an attractive proposition for the struggling independent advocate.
Professor Zander, the most revered academic versed in criminal law and a member of the Runciman Committee, pointed out in a recent letter to The Times:
- "It's not to do with the integrity of the lawyer, but everything to do with the institutional and bureaucratic pressures that arise unavoidably from being an employee of an organisation".
Perhaps I may just enlarge upon that because it is a matter of the greatest importance. I suggest that this provision is another example of the "dumbing down" of the role of the criminal advocate and the place of the criminal law in our constitutional arrangements. A view very much held in the noble and learned Lord's department and in the higher echelons of my profession is that highly qualified lawyers, professionals, should not be wasting their abilities and the taxpayers' money dealing with unsavoury persons in the criminal courts and that their proper place is in the High Court and the Court of Appeal.
It is in the criminal courts--in the magistrates' courts in particular and in the Crown Court--where matters of personal liberty are fought out; where human rights are most abused; and where miscarriages of justice are most outrageous and acute. It is there that the citizen is daily up against the power of the state, the police and the government and it is there that, as the noble Baroness, Lady Mallalieu, said, the user is surely entitled to the service of the best; that is, a whole-time specialist, an independent and dedicated advocate.
While I am on this matter it is worth noting in passing, without breaking the sub judice rules, that all the advocates for both parties in the Pinochet case are from the criminal Bar whereas not one of the seven Law Lords sitting on the matter has had the advantage of a criminal practice. When the user chooses the noble Baroness, Lady Mallalieu, or used to choose my noble friend Lord Wigoder, what did he get? It was someone answerable to no employer, no shareholder, no partner, no firm, with no certainty of income, pension or perks but someone who, on the cab-rank principle, remained available if chosen, whatever his professional status may rise to be, for the most deprived and oppressed. I say to all Members of the Committee that that is surely a principle worth preserving.
Is not the American experience a sufficient warning in itself because the DA and the public defender have brought the criminal process in the United States into disrepute? At the end of this debate on these amendments, I urge the noble and learned Lord to take away this matter and to think about it again. Ministerial assurances butter no parsnips in this Committee.
5 p.m.
Lord Bach: I rise with some trepidation because I speak in opposition to so many distinguished lawyers who have spoken already in this debate. I notice that they are all Queen's Counsel. In particular, I am in some trepidation because I follow the noble Lord, Lord Hutchinson of Lullington. When I was a Bar student I would go to the Old Bailey to watch him conduct his cases and I said to myself then--and nothing has changed my mind since--that if I were ever charged with murder, I should want him to fight my case, whether or not I was guilty.
I am a barrister in private practice. The cases in which I appear are 100 per cent. criminal cases and in the great majority of those I am defending. I speak against the amendment. Why do I do that? First, there seems to me two particular ways in which the Bar does itself no favours. Many of those who speak on its behalf do so as though being called to the Bar is some kind of spiritual calling; in other words, that there is something about being a member of the Bar which makes it a distinct, different and much higher job than, for example, teachers or doctors. That is an unattractive way in which the Bar goes about defending itself and it does not cut much ice with the general public. The Bar is a distinguished profession and I am proud to be a member of it. However, I do not see it as being a profession which should have special rights and responsibilities, particularly in the modern world.
Secondly, it always seems to be assumed by those who defend the status quo that the Bar, and particularly the criminal Bar, is full of the most distinguished expert counsel; in other words, that there is a quality among those who defend in our magistrates' courts and Crown Courts that is really universal and that there is no distinction between barristers which can be made.
That just is not my experience. The present system quite often sets up weak defence counsel against strong prosecuting counsel. That is under state legal aid as we have it at present. That happens when those charged with criminal offences are supposed to have a wide choice. They sometimes, and often, end up--and I am not talking about the kind of cases in which those who have spoken for the amendment are used to appearing but in the every-day bread-and-butter Crown Court cases--being defended by barristers who, if Members of the Committee heard them, would not be considered to be of the highest quality.
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