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Lord Renton: Before the noble and learned Lord replies, I hope that he will not encourage any kind of partnership with the Bar. The great strength of the Bar and the judiciary is its tradition of personal

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independence and responsibility. Any attempt to form chambers on a partnership basis so as to include certain types of specialist is wrong in principle.

I have such respect for my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Ackner, that, greatly daring, perhaps I may say that I never specialised. However, one-quarter or perhaps one-third of my work was in criminal cases of a wide variety. They included murders and motoring cases. I remember a long-term fraud case in which the accounts amounted to 900 pages. Was there a specialist to handle that? If we want the judiciary to do its job in the years to come we must be careful that we do not encourage too much specialisation within the Bar.

The Lord Chancellor: With great respect to the noble Lord, Lord Thomas of Gresford, I have to say that he is a lawyer, all members of the Bar are lawyers and I am not in the business of giving them legal advice. I have long since given up doing that, unfortunately. It is not for the state to prescribe any particular method of organisation or business arrangements within the Bar. My long experience of the Bar, not that distant, leaves me with the firm belief that there is enough intellect and inventiveness within it to find a wholly effective means of adapting to changing times and contracting for the provision of volume services.

Lord Ackner: Before the noble and learned Lord sits down, I wish to ask whether he anticipates that it is highly probable that the changes he is making to the opportunities of the Bar to practice could lead to the need for the Bar to move into a co-operative situation such as a partnership in order to carry the risks, particularly of the conditional fee situation. I ask that question because I wholly agree with the noble Lord, Lord Renton, that partnerships are highly undesirable. As I think I told the Committee a day or so ago, when Chairman of Bar I was responsible for setting up a committee to consider partnerships at the Bar. I very carefully chose the noble and learned Lord, Lord Templeman, as he then was not, to preside over that committee. The result was that it came out unanimously and strongly against partnerships at the Bar in the interests of the public who, if there were partnerships, would to a high degree lose their ability to choose. I ask the noble and learned Lord whether, with his knowledge of the Bar as it stands at the moment, he agrees that specialisation is an increasing development at the Bar. The generalist virtually no longer exists.

The Lord Chancellor: I do not know about that. Until May 1997 I managed to continue to practice, I suppose, as a dinosaur, a generalist, in many different classes of civil litigation.

We are, if I may say with respect, a little adrift from the subject matter of the amendment, which refers specifically to remuneration for barristers and whether barristers can aid their position by contracting for the provision of volume services. I am firmly of the view that they can do so without having to enter into partnerships. They can adapt particular contractual arrangements to achieve that outcome.

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As regards conditional fee agreements, again that is wide of the mark but I have every belief that the Bar will adapt and that a strong, independent Bar, as I wish it to be, will remain a continuous feature of the provision of legal services in this country.

However, I conclude by giving an undertaking to my noble and learned friend which is this. There was an article a little time ago written by a senior barristers' clerk in a set of chambers saying how they had been engaging in conditional fee agreement business for a year or two completely successfully and without any difficulty and he did not really know what all the fuss was about. I am minded to send a copy of that article to my noble and learned friend.

Lord Ackner: My noble and learned friend might have anticipated that I had read it.

The Lord Chancellor: My noble and learned friend did not mention it.

Lord Ackner: It is not always wise to mention all one's knowledge. I should like the opportunity to consider what has been said about this amendment and in the meantime, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 184 and 185 not moved.]

Clause 15 agreed to.

Clause 16 [Terms of provision of funded services]:

Lord Goodhart moved Amendment No. 186:

Page 10, line 41, leave out ("(and the individual is not acquitted)").

The noble Lord said: This is a very short point and really it is a probing amendment. Under Clause 16(2), if a criminal defendant is acquitted then the trial judge cannot, in any circumstances, make an order requiring him to pay some or all of the costs of representation.

Although I do not practise regularly in the criminal courts, I understand that from time to time trial judges make orders that, although a particular defendant has been acquitted, nevertheless, because he, by his conduct, has brought the prosecution on himself, he should not be refunded his costs out of public funds. Clause 16(2) would make that course of conduct impossible and I wonder why that is being done. I beg to move.

Lord Falconer of Thoroton: The amendment tabled by the noble Lords, Lord Goodhart and Lord Phillips of Sudbury, would have the effect that, subject to any regulations, the Crown Court would be able to make an order requiring a defendant to pay towards the defence costs whether or not he was convicted. I think that that must be a correct proposition put forward by noble Lords. That would reflect, under the new system of costs orders, the current position when a defendant has made a contribution towards legal aid. At present, and in exceptional circumstances, the court may refuse to order legal aid contributions to be repaid even on acquittal if the defendant has, for example, brought suspicion on himself or has misled the police into believing that the case against him was stronger than it proved to be.

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Because there will be no means testing or contributions in the future, there will be nothing to withhold. Nevertheless, in certain rare cases it may still be right for an acquitted person to meet some or all of the defence costs because of serious misbehaviour. The proposed amendment gives that discretion to the court. I believe that that is right. Accordingly, I welcome the amendment and accept it.

On Question, amendment agreed to.

Clause 16, as amended, agreed to.

Clause 17 [Funding]:

[Amendments Nos. 187 to 189 not moved.]

Lord Ackner moved Amendment No. 190:

Page 11, line 22, at end insert (", but shall always treat the interests of justice as paramount").

The noble and learned Lord said: This amendment seeks merely to insert at the end of the clause the obligation to treat the interests of justice as paramount. The noble and learned Lord the Lord Chancellor may well say that that is implicit. It would look a great deal more impressive if it were on the face of the Bill. I beg to move.

7.15 p.m.

The Lord Chancellor: I am told by the Clerk that this was debated earlier in fact.

Lord Ackner: I did refer to a similar matter but not with regard to Clause 17. I did refer to this matter on Clause 13 and Amendment No. 151 which states:

    "leave out ('it considers appropriate') and insert ('are necessary in the interest of justice')".
It is not the same clause; it is not the same words, although the philosophy is consistent.

The Lord Chancellor: I indicated in relation to a similar but not identical amendment a willingness to take it away and think about it, so I give my noble and learned friend the same indication in relation to this amendment.

Lord Ackner: I am most grateful. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

[Amendments Nos. 191 and 192 not moved.]

Clause 18 [Foreign law]:

[Amendments Nos. 193 to 196 not moved.]

On Question, Whether Clause 18 shall stand part of the Bill?

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Lord Ackner: I merely wish to raise a note of caution about this particular clause because I am not at all clear how it operates. Clause 18(1) states:

    "The Commission may not fund as part of the Community Legal Service or Criminal Defence Service services relating to any law other than that of England and Wales".
I ask why that is so. Will there not be cases--for example, extradition matters--where it may well be necessary for foreign law to be gone into and be the subject matter of expert evidence?

Lord Hacking: I join with the noble and learned Lord, Lord Ackner, in expressing concern about this clause. The noble and learned Lord will remember that I raised the point not in relation to extradition--although it is equally valid made in relation to that--but in relation to the Civil Aviation (Amendment) Act 1996. The noble and learned Lord very kindly wrote to me to assuage my concerns in his letter to me of 18th January. In that letter he said that a situation could arise under the Civil Aviation (Amendment) Act 1996 when it is a ground for a defence to a charge under that Act that the conduct of the offender in the foreign aircraft landing in this country did not constitute a criminal offence in the country of the registration of the aircraft, although it did constitute a criminal offence in this country.

The noble and learned Lord replied in his helpful letter to me that this was an issue of fact to be adduced in proceedings in this country. He said that he was satisfied that this would not be caught by Clause 18, which is directed at advice about the application of foreign law and help in taking proceedings in other directions. Indeed, that latter would also refer to the point raised by the noble and learned Lord, Lord Ackner.

However, the question is that, in the drafting of the Bill, would that be the result? The phraseology in Clause 18 is that,

    "The Commission may not fund ... services relating to any law other than that of England and Wales.
On a perfectly normal construction, if a lawyer was required, in the example of extradition or under the Civil Aviation (Amendment) Act, to research and advise the client on the law of a foreign country, that would be services relating to the law of a foreign country and therefore would not be covered under the provisions of the community legal service or the criminal defence service--in this case under the terms of the criminal defence service.

All I ask my noble and learned friend is that he look at the drafting of that clause and consider with his officials whether it truly does produce the result that he expressed in his letter to me. If that could be looked at again I would be extremely grateful. We are clearly agreed on the purpose of the clause; it is only a question of the correct execution of that purpose in the drafting of the clause.

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