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Lord Ackner: I have two points in answer to my noble and learned friend. First, he spent some of his riposte in relation to my submissions on Section 31. That comes next and therefore I shall delay dealing with that. My second point relates to what is in the Lord Chancellor's consultative paper, to which I make few references. In the foreword signed by my noble and learned friend the Lord Chancellor, the observation is made,

There is no warrant for that comment at all.

Then there is a reference at paragraph 2.5 which is equally hostile to the Bar on this particular subject. It reads as follows,

    "The Government accepts that rights of audience should not become the subject of a 'free for all', and that these rights must generally be reserved to qualified members of the legal profession. However, the present position is over-restrictive. The Government does not agree that the majority of qualified lawyers should in most circumstances be debarred from appearing in the higher courts, which is currently the case".
The only debarring was by the solicitors who either did not apply to get their rights of audience or, having got the rights of audience, did not exercise them.

Clause 30 agreed to.


Clause 31 [Rights of audience: employed advocates]:

Lord Thomas of Gresford moved Amendment No. 236:

Page 19, line 3, at beginning insert ("Subject to subsection (3),").

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The noble Lord said: It is a real pleasure to address your Lordships at this scintillating hour. I notice that your Lordships are exhausted and bowled over by the generosity of the noble and learned Lord the Lord Chancellor in conceding so many amendments tonight.

Amendment No. 236 is a paving amendment to Amendment No. 238. As the noble and learned Lord, Lord Ackner, pointed out, we have already had a paving response from the noble and learned Lord, Lord Falconer. However, this amendment seeks to maintain the status quo so far as the rights of audience of the CPS and other employed government lawyers are concerned.

The whole purpose of the Crown Prosecution Service was to divorce the decision to prosecute from the investigation of the crime. I note in the White Paper that the purpose of the provisions was expressed in this way:

    "We intend to sweep away the unjustified restrictive practice that prevents most qualified lawyers from appearing before the higher courts ... This will help, in particular, the Crown Prosecution Service to provide a more efficient and effective service to the taxpayer and the law-abiding public".
I challenge the assumptions that are contained in the White Paper.

The result of the Crown Prosecution Service taking over the role of prosecutor in the magistrates' court is that each qualified solicitor or barrister employed by the CPS has a very heavy workload. I recall that when my son was a pupil or in his first year of practice, he customarily made a living by taking on some 40 or 50 cases in the day, and getting paid by the day for the work that he was doing. That was the sort of workload that the qualified solicitor in the CPS had to take on.

So it is that in the higher courts the Bar provides a service with distinct advantages to the law-abiding public--never mind about the public which is not law-abiding. First, the barrister is independent: he is independent in the advice that he gives to the Crown Prosecution Service on matters pre-trial--for example, disclosure; on the charges that should be brought; and on the evidence that should be placed before the court. He is independent in his decision making during the course of the trial and is insulated from the pressures that could occur and do occur upon the Crown prosecuting solicitor who is in direct contact with the police. The independent prosecuting barrister is insulated from that type of pressure.

Secondly, and very importantly, he has time. One of the benefits of being at the independent Bar is that if research is required, one has time to do it. If the barrister who is appearing in the higher courts does not take that time to research and to produce his skeleton arguments, then he will face the dire consequences when he goes into court.

He has daily experience of going in and out of court before the same judges. He will gain knowledge of the judges, the particular areas in which he practices, and the particular courts which he attends; he will become accustomed to the procedures and customs of that court. He has flexibility. It is impossible to know in the profession where one will be next week, or the week after, largely because it is impossible to control the length of cases. That is why one has the return of briefs,

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to which reference was made earlier today. But he also has the expertise and training to pick up the brief quickly and to present it quickly. That is what he is paid for. He has low overheads because he does not have to carry a large office staff. It is a fact that the average solicitor will spend something in the region of 70 to 75 per cent. of his gross earnings--I have been a solicitor so I know--on office costs. At the Bar it is likely to be one-third or less. So he has flexibility, he has low overheads and he has a strict discipline imposed on him not merely by the rules of his profession but by the chambers of which he is a part, by the head of chambers and by the disciplinary procedures of the Bar. He is also able to appear in the higher courts without always having behind him the Crown Prosecution Service solicitor. It is extremely rare that a CPS solicitor will be in court. He may be at the initial conference with counsel. He is unlikely to be in court and he will be represented by a clerk. All those are the advantages of being a member of the Bar who is independent.

On the other hand, if one envisages the position of the CPS prosecutor, it is quite clear that a two-tier system must arise. Someone has to do the magistrates' court work. The experienced advocate will be sent to the higher courts--to the appeal courts--and he will become the upper echelon in a two-tier prosecuting system. He will still need support staff; he will still need to have the clerk sitting behind him in order to carry out all the necessary day-to-day work that that person performs; he will also be subject to the same problems of timing, clashes of his diary, and of having to attend a plea and directions in one court, a trial in another and a plea in a third.

When one comes to consider the public interest, the cost is a matter that has to be taken into account. Almost by definition, the CPS prosecutor will be paid less than the independent barrister. His salary will be less. Unless it is smaller, there is no point in having the system at all. There has to be a cost saving for the whole purpose of these provisions to go through. But to his salary has to be added the pension, the paid holidays, the working hours, subject to European directives, and so on. The effect of the lower salary and of these conditions will mean that the quality of the CPS prosecutor will be less than that of the independent barrister. In addition, he has a closer association with the police and he has to deal with promotion. The yardstick is success. He will be subjected to the temptation of overcharging and plea bargaining. Not even in Scotland are rights of audience given to the procurators fiscal in the higher courts, despite their centuries of experience. Yet, here we are, straightaway opening the entire system to the CPS employed lawyer.

The existing system allows for pilot schemes, which are actually taking place. There has been no research, no assessment of the pilot schemes that have taken place. Yet, as I say, the door is being flung open. I beg

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to move this amendment, and shall seek to move this series of amendments, in order to preserve the status quo.

Lord Bach: Although it is very late, I make no apology for dealing with one of the matters mentioned by the noble Lord, Lord Thomas of Gresford, in relation to his arguments as to why the independent Bar should be entitled to a monopoly on prosecuting in the higher courts. I shall deal with one only; namely, the noble Lord's proposition that there is effectively absolute independence for an independent prosecutor while he is in the process of prosecuting a case in the Crown Court.

The best independent prosecutors, of which there are many, will tell us that in this day and age the reality is that their decision-making powers are extraordinarily limited in the context of a case that they are prosecuting. Perhaps I may offer a brief anecdote. A few weeks ago, in a case in which I was involved, a prosecution witness of tender years completely changed his story in cross-examination. It was clear that the case was over; there was nothing else for it. The learned judge told the prosecutor to consider her position. Instead of taking the course of immediately saying, "It is my independent judgment as a prosecutor that no evidence should be offered in this case", the prosecutor said--and it was understood by everyone else in the court--that she had to go away and take instructions. That meant taking instructions from a lawyer who works for the Crown Prosecution Service in the area. It was only 35 minutes later, after she had no doubt given her advice but listened to his decision, that she came back to court and offered no evidence.

There may be contrary examples; however, my experience as someone who practises both as prosecutor and defender in these courts is that the independence of the independent prosecutor in ordinary Crown Court trials is extraordinarily limited and should not be put forward as one of the arguments for not allowing Crown Prosecution Service lawyers to appear in the courts.

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