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The Lord Chancellor: The noble and learned Lord need not be concerned because this is a continuation of the giving age to which my noble and learned friend Lord Falconer of Thoroton referred and into which he moved shortly in order to deal with the previous amendment.

In substance the effect of paragraph 4 of Schedule 3 is to carry into the present Bill powers similar to those contained in Section 20(9) of the Legal Aid Act 1988, which allows the Lord Chancellor to transfer to the Legal Aid Board the power to grant legal aid for representation in criminal cases by providing that,

In the event the power has never been used. On reflection, I do not believe that the power as regards representation in criminal proceedings before the courts would ever be used and in principle I am content to remove it. However, if defence services under the Bill were to extend to proceedings not in the courts, such as Parole Board hearings, it might be appropriate for the commission to decide whether representation should be granted.

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In the light of that explanation, and if the noble and learned Lord is content, I shall come back with an amendment to clarify our intentions on the face of the Bill.

Lord Ackner: I am most grateful to my noble and learned friend. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 181 not moved.]

On Question, Whether Schedule 3, as amended, shall be agreed to?

Lord Mackay of Clashfern: I desire to ask a question on this. I have discussed the matter with the Lord Chancellor's officials. I think that I understand the position. However, as the noble and learned Lord knows, the House of Lords has a jurisdiction to hear appeals from the Divisional Court of the Queen's Bench Division. That divisional court also has a jurisdiction to hear cases from the magistrates' court. Those are usually concerned with criminal matters, but for some reason I have never fully understood they seem to be treated as civil appeals. That is why they do not seem to appear in this schedule.

I had understood that the matter was under consideration. For convenience it would be better if these appeals from the Divisional Court of the Queen's Bench Division--in the Bill a judge of the High Court being substituted for that--were treated as criminal appeals. For the most part they are concerned with criminal matters.

I wish to ask about that point so that it is not lost sight of. I do not invite the noble and learned Lord to give a detailed exposition now, but simply to keep the matter in mind.

The Lord Chancellor: I undertake to keep it in mind and to write to the noble and learned Lord.

Schedule 3, as amended, agreed to.

Clause 15 [Regulations about payments to representatives]:

[Amendment No. 182 not moved.]

Lord Ackner moved Amendment No. 183:

Page 10, line, 35, at end insert--
("( ) Such provision shall include provision for separately negotiated remuneration--
(a) for specialist advocates in any criminal proceedings where the court directs that the interests of justice require their services; and
(b) for all representatives in any criminal proceedings where the court estimates that the length of the trial will exceed such number of days as may be prescribed.").

The noble and learned Lord said: The amendment seeks to follow what was in the White Paper. It was designed to ensure that where the case justified it provision would be made for the expert services of the specialist Bar.

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I invite the Committee to consider paragraph 6.14 of the White Paper Modernising Justice. It reads as follows:

    "So far as possible, contracts with solicitors' firms should cover the full range of criminal defence services, from advice at the police station, to representation in the magistrates' court and, if necessary, the Crown Court. This will eliminate the fragmentation that bedevils the current scheme. Contracts of this type would require the firm to cover a number of duty solicitor slots at local police stations",
and so on. The paragraph concludes:

    "These contracts would not set a limit on the number of cases the firm could do. If a case also required the services of a specialist advocate in the Crown Court, this would be provided under a separate contract".
Paragraph 6.15 makes provision for the very expensive cases--those where the trial is expected to last 25 days or more--which fall outside the scope of contracts designed to cover ordinary cases. The paragraph states:

    "Instead, a separate contract will be negotiated for each individual case".
A little later the paragraph states:

    "The negotiations will usually include the cost of specialist advocates and other experts".

Amendment No. 183 is designed to reflect that. At page 10, line 35 of the Bill it inserts the following paragraph:

    "Such provision shall include provision for separately negotiated remuneration--

    (a) for specialist advocates in any criminal proceedings where the court directs that the interests of justice require their services; and

    (b) for all representatives in any criminal proceedings where the court estimates that the length of the trial will exceed such number of days as may be prescribed".
I beg to move.

Lord Mackay of Clashfern: I support the thrust of the amendment. It is important that encouragement should be given to solicitors and barristers to specialise to some extent in particular types of criminal proceedings where lack of expertise may lead to an unnecessary prolongation of the proceedings. We have had some experience of that over the years.

The Lord Chancellor: I am the first to acknowledge the necessity for specialist advocacy services in the more complex criminal trials. However, I am not at present persuaded that the amendment should be accepted. It seeks to place on the face of the legislation mechanisms for remuneration which are more appropriately dealt with in regulations.

The amendment would require separately negotiated remuneration in two circumstances. The first is where the court appoints a specialist advocate, or directs the appointment of a specialist advocate, in the interests of justice. The second is where the court estimates that the case will last beyond a specified number of days.

On the first proposition--that there should be separately negotiated remuneration where a specialist is appointed--I have power under Clause 15 to settle separate payment arrangements for advocates. Let me state my position. I intend to continue with the graduated fee scheme and if current, and I believe positive, discussions between the Bar and my

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department bear fruit it may even be possible to extend that scheme beyond the current 10-day limit. Whatever the future may hold for contracts, graduated fees may in some areas continue indefinitely, or at least provide a sound basis for contracting with the Bar. As I have already pointed out in relation to civil matters, but the same is true for crime, the Bill allows me to contract separately with the Bar.

I wish to emphasise that I have long thought and said--and the Bar knows that it is my view--that it should embrace the opportunities of contracting and be ready to contract for the provision of advocacy services either as individual sets of chambers or through particular groupings of barristers so that, equally with solicitors, it can offer volume services. If it were to contract in that way it would be at prices determined by the contract. The Bar would be free of risk of payment for its services via disbursements in solicitors' bills when the solicitors would be the only contracting Party.

I have said many times that the vulnerability of the Bar is obvious. It may be that that is part of the thinking of the noble and learned Lord, Lord Ackner. The solicitor has the contract. What the barrister receives for the provision of his specialist services out of the solicitors contract price, if the solicitor is contracting for the provision of a total service, is what the solicitor agrees to pay the barrister. I repeat that of course the Bar can contract directly. That is what I have been saying for ages. However, the Bar has its salvation in its own hands. We are ready to contract with it and I say that the powers exist so let the Bar get on with it.

The second part of the amendment deals with separately negotiated remuneration for all representation in longer cases. I repeat that we are looking at the issue in the context of graduated fees. What is more, everyone knows about the public concern over lengthy and high-cost cases. Again, my department is talking to the Bar Council and the Law Society about better control and is examining the prospect of negotiating one-off contracts to cover individual high-cost cases. As presently advised, I do not believe that the details of how we go about all of this is a matter for primary legislation. I have said as clearly as I can what our intentions are and how much we would welcome a willingness on the part of the Bar to contract. On that basis, I invite the noble and learned Lord to withdraw his amendment.

7 p.m.

Lord Thomas of Gresford: Before the noble and learned Lord sits down, perhaps I may ask whether he envisages some form of partnership with the Bar. If it is contracting with chambers will the barristers in those chambers be partners and unable to appear against each other? What will be the knock-on effect of such a situation on specialist chambers where partnerships would reduce the choice available?

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