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The Lord Chancellor: I wonder why the noble Lord, Lord Thomas of Gresford, thought that he needed to intervene to ask me that question. Of course I would not let this debate pass without expressing a view on that point. I will do so, in due time, in my reply to this debate.
I see us starting, very small, with pilots. I would expect the pilots to cover the solicitor litigators' role and perhaps advocacy in the magistrates' court. We would of course want to consult on the details and, if we
decided to extend the scheme, it would only be after we have had experience and the opportunity of a well-informed debate based on that experience. I give my noble friend Lord Clinton Davis, who is following our discussions closely, the assurance that we would start with small pilots and monitor them precisely to see how effective our arrangements were in avoiding the risk to which this debate has called attention. It would only be against that background that decisions could be taken--on evidence rather than heresay.The noble Lord, Lord Thomas of Gresford, in his intervention and the noble Viscount, Lord Bledisloe, in his contribution asked whether there would always be a choice. The appropriate time to discuss this, as the noble Viscount envisaged, is when we come to Amendment No. 170, when we will have a detailed discussion. Running ahead, there will be certain, special and limited circumstances when there cannot be a choice. That will be discussed in the context of that amendment. We certainly intend that generally there will be a choice between several quality-assured providers, contracted providers and salaried defenders.
One reason this will happen in practice is because both contracted firms and salaried defenders will take their turn as duty solicitors at the police station and the magistrates' court. That is where many people first meet the representative they choose to use. Of course people will not be required to use the police station duty solicitor at their hearing in the magistrates' court unless they choose. In practice, and subject to the detailed explanations we will give in relation to Amendment No. 170, there will be a choice in almost all circumstances.
Running ahead, it might be desirable in order to have an effective pilot, in some cases not to have a choice--for example, in rural areas where no suitable private firm of the requisite quality exists, and in certain other cases. In rape cases, where the defendant is unrepresented, it might be necessary to assign counsel on the day to cross-examine in order to avoid the delay of an adjournment. But generally there will be a choice.
As I say, I am not willing to exclude from the Bill the possibility of salaried lawyers. They could be the most effective way of meeting need where otherwise there might be a gap in provision--for instance, in rural areas or deprived inner-city areas where there is limited or no access to other good quality defence services.
Those who are prejudiced against the concept of public defender systems will not have it that they can ever be good. But of course the same can be said of private practitioners in some countries. It does not follow that all private practitioners are bad or that all salaried providers of services are bad simply because bad examples can be found around the world. There are also good examples of quality salaried services in countries such as Canada. In Quebec 55 per cent. of cases are handled by staff lawyers. Clients there are generally allowed a choice of salaried or private lawyer, and experience has shown that the majority of clients express a preference for a staff lawyer. Indeed, despite the lower average case costs, staff lawyers in Canada were found to achieve broadly similar or slightly better
outcomes for their clients than private lawyers. Clients of staff lawyers were neither more nor less likely to be convicted than clients of private lawyers.It is vital that defenders, whether they are private or salaried, should be properly resourced, qualified and supervised. In addition to meeting gaps, one reason why I believe an element of salaried service would be beneficial is that in a mixed economy of private practitioners and salaried defenders we would be able to bench-mark each against the other in terms of quality and cost.
At the outset of our discussions this afternoon there were complaints that the proposal for a salaried defender service has been sprung on the legal world. The noble Lord, Lord Windlesham, suggested that--I see that he is not now in his place. I can only assume that those who feel taken by surprise have not been reading the newspapers and the legal journals, much less listening to the speeches that I and my Minister of State have been making over the past year or more. That may be a very wise allocation of their time but it does not lie in their mouths to say that this very limited proposal has been sprung on an unsuspecting legal world.
Finally, I think I should turn to the amendment put down by the noble and learned Lords, Lord Ackner and Lord Archer of Sandwell, which will remove altogether the power of the commission in Clause 13(2)(g) to do anything else that it considers appropriate for funding advice and assistance. That amendment is part of this grouping too. The amendment would remove what I regard as an essential element of flexibility. Gaps may arise in the provision of advice and assistance in ways that we cannot now foresee. Opportunities, as circumstances change, may present themselves which are not precisely or expressly encompassed by the Bill. So I think that we would risk denying those in need of the benefits that the future may offer if we were vain enough to think that we could identify in this Bill specifically all the ways in which we may be able to secure good quality and cost-effective advice in the future. On that basis, I invite the noble and learned Lord to withdraw the amendment.
Lord Ackner: Before my noble and learned friend sits down, am I right in thinking that one of the main purposes of the public defender system is to establish whether that system can provide an adequate service at significantly less cost than the private system; and if so established, does that mean that the ratio which my noble and learned friend has already described will move more and more in favour of the public defender system?
The Lord Chancellor: I do not deny that the employment of salaried defenders will afford a useful benchmark in terms of quality and cost. I have to say to the noble and learned Lord that I operate within a controlled budget. The truth is that the only money that is left for civil legal aid is what is left over out of that budget after the requirements of criminal legal aid have been met, as those requirements are underpinned, as they should be, by international obligations. But the simple truth is that I have to seek to deliver economy
and quality together in the provision of criminal legal services. I do regard the employment of salaried lawyers as providing a useful benchmark in relation to that critical mix of quality and cost-effectiveness, both of which are essential.I am not good at looking very, very long distances into the future but I would expect that salaried lawyers would be in the highest degree unlikely to do more than the lesser cases and never to undertake--it would be very unlikely that they would ever undertake--cases of major difficulty.
Lord Hutchinson of Lullington: Looking into the future, perhaps I may ask the noble and learned Lord one question. He has told the Committee that he has no intention of bringing in a salaried defender scheme. I accept that entirely. But if one of his successors intended and desired to do so and these clauses remain in the Bill, would he be able to do so?
The Lord Chancellor: Subject to the objectives of the Bill, the commission would have the powers which are in the Bill. That is certainly so. The power is there for the commission to employ salaried lawyers for the purposes of defence services. But I can do no better than indicate to your Lordships what I anticipate for the future.
6.15 p.m.
Lord Archer of Sandwell: I now understand how Pandora must have felt. This debate began with what I declared an hour and fifty-four minutes ago to be some probing amendments. I am most grateful to all the noble Lords who participated in the debate which, whatever other controversy there may be, I think we would all agree has been a fascinating and very informative debate.
I set out to ask some questions and to indicate some anxieties. There was even at the back of my mind a hope that we might quietly woo my noble and learned friend into meeting some of those anxieties. I feel a little like someone who suggested a trip round the bay and now finds himself sailing with Columbus. I say at once that I do not endorse everything that has been said in support of my amendment. There may well be a case for salaried employees giving some advice in appropriate circumstances. That is done every day of the week in numerous citizens advice bureaux and in numerous law centres. It may be appropriate in some cases for some people who are not members of the practising profession to represent litigants. It is done in a number of tribunals and, so far as I am aware, it is done without complaint. So I would not go as far as some noble Lords who have participated in the debate, although I am grateful to them for their support.
I think that there are some very real dangers and clearly my noble and learned friend has them in mind and will address them later. I agree with the noble Viscount, Lord Bledisloe, that the appropriate place to discuss them may well be on Amendment No. 170. I say with great humility that I hope your Lordships will excuse me. I have an unavoidable commitment elsewhere and so I will not be able to participate in that debate. However, I understand that the noble Lord, Lord Goodhart, will kindly move the amendment in my place. I shall certainly read with great interest what has been said.
Beyond that, I think it may be wise for us to read what has been said and to consider it in tranquillity. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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