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Baroness Crawley: I am not a member of the legal profession. However, as the noble Lord, Lord Renton, has just told us that this evening is an anniversary of his being called to the Bar, I have to say that my father was also called to the bar as a young man; but only to start a lifetime of serving alcoholic beverages to the great British public.

As a non-lawyer, I hope that Members of the Committee will forgive my boldness in questioning the wisdom of all these amendments, which seek to remove from the Bill the right of the commission to employ lawyers. From listening to noble Lords and noble and learned Lords, it would appear that those supporting the amendments believe that the present system is working, by and large, perfectly satisfactorily and that, therefore, "If it ain't broke, don't mend it".

However, after 15 years of representing constituents who have not always felt that they have been legally defended to the highest possible standard on every occasion, I believe that in no profession can we be complacent and think that change could never improve effectiveness; and that it could not, in this case, achieve greater access to justice for the public by providing a mixed defender system.

Some noble Lords have talked about "thin edge of the wedgery" in this debate, but we are talking about a mixed private and public defender system and not about one overtaking the other. I believe that one of the strengths of that mixed system is the fact that it has within it the offer of competition and complementarity. The present system, unamended, allows a monopoly of private practice to exist, whereas a mixed representation of public and private may well be a significant improvement in terms of efficiency and--let us say it

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out loud--value for money. That is the responsibility of this Chamber, as well as ensuring that the highest possible standards of access to justice exist.

In the offer that a mixed system may give us of efficiency and value for money, I believe that we should consider some of the more recent research which has been carried out in other countries and look at how mixed systems have actually operated. I recommend to Members of the Committee the document, Legal Aid Delivery Systems published in 1997, as an unemotional reference to how this system works in other countries.

The present system has no formal quality assurance built into it. Although noble Lords supporting these amendments may say that the practice of solicitors of only referring cases to barristers in whom they have confidence is a form of quality assurance--indeed, a recognition that the market cannot lie--I contend that people's civil liberties are too important to be left to the vagaries of such a questionable market if a better system is on offer. Indeed, I believe that a better system is on offer in the Bill.

I have in mind a better system where the cost of the salaried service will provide a bench-mark which the CDS can use to assess whether the prices charged by the private lawyers are reasonable. Members of the Committee may also wish to reflect on the fact that, while the present totally private system is about lawyers running a business, a salaried service would mean lawyers would be freed from the burdens of running a business--that is to say, the burdens of paying the rent, touting for business, sorting out car park space entitlement and all the other important matters involved when running a business--and would, therefore, be able to concentrate more closely on the job of securing justice for people. More importantly, as stated in the White Paper, a salaried defender system would expose and fill the gaps in the system where too few local solicitors' firms and barristers' chambers now participate. I urge my noble and learned friend the Lord Chancellor to resist these amendments enthusiastically.

5.45 p.m.

Viscount Bledisloe: In listening to the powerful and eloquent speeches that have been made, I have more and more wondered whether they are tilting at the right windmill. The amendments now before the Committee seek to leave out the power of the commission to use salaried lawyers from its own department; that is to say, one method of fulfilling its duty. If the amendments are passed the commission will not be allowed to provide advice and assistance or representation by means of salaried defenders, even when the accused wants it.

It seems to me that what those who have spoken are against is not that that alternative may be available but the fact that, in certain circumstances, an accused may be forced to have such a state defender. Surely the mischief that gives rise to that possibility is to be found in Clause 14(6), which allows the Lord Chancellor to prescribe that you could only have representatives of a "prescribed description". If that subsection were to be deleted, as suggested in Amendment No. 170, the possibility of providing a salaried defender as an alternative would become innocuous.

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I ask the noble and learned Lord the Lord Chancellor not merely to express his attitude to the amendments, but also to say whether he is minded to accept Amendment No. 170; or whether he is at least prepared to ensure that the regulations cannot produce a situation in which a person could be compelled to have a state defender if he does not want one.

Lord Hacking: When my noble and learned friend Lord Archer introduced the amendments he described them as probing amendments. Indeed, after a debate lasting one hour and 27 minutes, I believe it can now be said that the amendments have had a good probing as, indeed, have the issues involved. However, as the noble Viscount just said, if we were to pass the amendments one means of the commission to provide legal services would be removed. For that reason, and that reason alone, I think it would be undesirable for these amendments to be accepted. In any case they are probing amendments and we have treated them as such.

At this stage in our debate we should consider the overall objectives of the Government in bringing forward the legal defence service. The first objective of the Government is to bring taxpayers' money properly into control. There is a problem. Paragraph 6.6 of the Government's White Paper states,

    "In 1992-93, the taxpayer spent a total of £507 million on all forms of criminal legal aid; by 1997-98, the figure was £733 million. This is an increase of 44 per cent., compared to general inflation of 13 per cent.".
Paragraph 6.7 states that,

    "42 per cent. of legal aid spending in the Crown Court (almost £116 million) was on just ... 1 per cent. of the cases".
When the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor, I was wholly supportive of his measures in this area. This was a concern that he and his department frequently expressed. There has to be a remedy for that problem. We simply cannot go on spending such large sums of money on a legal resource when the Government need to spend money on many other resources; for example, education and health.

The second objective of the Government is to bring quality of service to the criminal defence process. As my noble friend Lord Clinton-Davis rightly said, we should be concerned about low standards. Therefore the proposal that there should be an assessment under the contracting system of the quality of the service of the criminal defender from the private sector is a measure that I believe is sensible and highly desirable.

The third objective of the Government is to provide legal advice and assistance at all levels. Let us start at the level of the high street. Yesterday morning I was walking in Clerkenwell on my way to attend an arbitration. I walked up St. John's Street in Clerkenwell and I noticed a surprisingly long queue of citizens--there must have been 15 or 16 of them--waiting outside a citizens advice bureau for the door to open to gain access to the advice that was on offer there. It was because the citizens advice bureau, which does much noble work, was found to lack sufficient legal expertise that funded law centres were established with salaried lawyers. The proposal in this Bill for criminal law

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centres to be set up seems to me a sensible step. There is also a need for citizens to obtain advice on criminal matters from salaried lawyers. That, incidentally, would be cut out altogether if these amendments reached the statute book.

The fourth objective of the Government is to seek to ensure independent representation in court. I well remember the setting up of the Crown Prosecution Service. At the time I was a practising member of the Bar. All kinds of remarks were made as regards that service lacking independence. That has not proved to be the case. There have been deficiencies in the Crown Prosecution Service, but not as regards its independence.

It seems therefore, looking at the overall proposals of the Government, that it would be entirely sensible to have available salaried lawyers to represent defendants where needed. My noble and learned friend is not proposing a wholesale salaried system or the destruction of the Bar. He is merely proposing to run a few pilot schemes and to give the legal services commission the ability to use salaried lawyers in certain areas where there is a deficiency of defence lawyers; for example, in certain rural areas. This is not a case of putting a great hammer to a nut. It is simply a case of providing a wide scope of resource. On that basis I support my noble and learned friend.

The Lord Chancellor: These amendments would remove the power of the commission to secure advice, assistance and representation in criminal cases by itself employing lawyers. It has been suggested that behind the provisions in Clauses 13 and 14 is some kind of ambition on the part of the Government to introduce a wholly salaried service in place of private practitioners. That, it is said, would result in a serious erosion of the independence and quality of defenders. Let me assure those who nourish such fears that they are mistaken.

It is patently not the case that being dependent on the state for funding or for payment of one's salary undermines independence. I believe that the public think that barristers claim too much for themselves when they claim that only they can be honourably independent, and that they insult those who are in employment by maintaining that they cannot be honourably independent. I go further. I would say that many members of the public think that this is special pleading by barristers.

Is it to be suggested that our judges, who are conspicuously independent, lack independence because they are employed by the state, or that prosecuting counsel, members of the independent Bar, instructed and paid by the Crown Prosecution Service case by case, with the overwhelming bulk of their practices coming from that single source, lack independence? Yet from the standpoint of precariousness such prosecutors are in a more precarious position and in theory subject to greater risk of pressure than a salaried lawyer who has job protection, a steady, predictable salary and other safeguards, including Clause 36 of the Bill. That clause will give statutory force to the overriding duty of all advocates to the court to act in the interests of justice

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and comply with their professional rules of conduct so that salaried lawyers will owe the same duties to their clients and the courts as private practitioners.

In addition, earlier in our discussions this afternoon I readily accepted in principle the proposal of the noble and learned Lord, Lord Ackner, to introduce a statutory code of practice for salaried defenders. I should perhaps remind the Committee that any government employed lawyer has a right of access to the Attorney-General, the leader of the Bar, if he feels he is being pressured to act improperly. I also intend that salaried lawyers will be responsible within their organisation to a professional head to reduce even further any risk to their professional independence. Some Members of the Committee may have other specific ideas about how the independence of salaried defenders could be further guaranteed. If so, I should be more than ready to consider them. However, what I am not willing to do is to exclude the possibility of salaried lawyers from the Bill.

The noble Baroness, Lady Kennedy, if I may say so, casts herself in a quite suitably heroic role fighting for the disadvantaged. Many of us who are lawyers have done this, and in many areas of the law beyond the criminal law.

Most salaried defenders, however, would represent the disadvantaged in just the same way as independent barristers. Nor do I accept that dedicated lawyers of quality, integrity and commitment to their clients are incapable of being attracted to become salaried defenders. The noble Baroness, Lady Kennedy, wants this modest power to be shelved and brought forward, if need be, in a special, separate Bill. I could see the point of that if I was proposing a salaried defender service to replace the independent Bar--but, emphatically, I am not doing that.

I stress that it is not our intention that salaried defenders should supplant the independent Bar or, indeed, the solicitors' profession. That will never happen. We see value in the commission having power to introduce into the system a salaried element, subject to appropriate ethical safeguards. But it will always be a mixed system in which the salaried element will by far be the smaller part.

6 p.m.

Lord Thomas of Gresford: Does the noble and learned Lord envisage a competitive situation--that is to say, a free choice for an accused person either to have the employed defender under the criminal defence system or to have an independent counsel and solicitor team which is paid for by that system?

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