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Lord Kingsland: I support the remarks of the noble Lord, Lord Thomas of Gresford, in introducing his amendment and seek to speak briefly to mine, which is in the same grouping.

I wish to ask the Lord Chancellor two questions. First, in examining the overall cost position, about which he has said much in the three days that we have spent in Committee on the Bill, will he take into account any additional costs that the Attorney-General's Department will experience in relation to the CPS? In assessing the overall increase in expenditure of the Bill on criminal expenditure, we must add any increases in the cost of the CPS that derive from the terms of the Bill to whatever effect it has on the Legal Aid Fund in order to assess the overall cost implications.

Secondly, perhaps I may invite the noble and learned Lord to reflect, in the way that he did earlier on, on how he sees the development of the CPS in relation to the independent Bar. The noble and learned Lord will recall that, yesterday, he allowed himself to say that he did not think that the criminal defence service was likely to expand beyond some fairly minor incursions into

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criminal defence work. Would the noble and learned Lord take the same view about the Crown Prosecution Service in relation to the independent Bar practising in the criminal courts?

The Lord Chancellor: The amendments tabled by the noble Lords, Lord Thomas and Lord Kingsland, go to the heart of one of the Government's main proposals on rights of audience. They would deny Crown prosecutors the benefit of Clause 31 of the Bill, which prevents employed lawyers from being subject to restrictions on the exercise of their rights of audience which do not also apply to lawyers in private practice. The amendment tabled by the noble Lord, Lord Thomas, would go further and exclude all advocates in Crown employment from the scope of Clause 31.

That would mean that although the Bill would enable employed lawyers in the private sector to appear as advocates in the higher courts, those in public service would still be unable to do so while the rules of their professional bodies remain as they currently are.

Perhaps I may try at this late hour to enliven the proceedings, I hope in a good natured way. The noble Lord, Lord Thomas, proves by this amendment that he is a barrister first and a Liberal second, a card-carrying member of the barristers' party, QC section. Bright and Cobden must be turning in their graves.

The Committee should be in no doubt that one of the intentions of the Government in bringing forward the Bill is to enable suitably qualified and experienced Crown prosecutors to prosecute in the Crown Court. Many people are amazed that Crown prosecutors cannot already prosecute cases in the higher courts. I see no reason why the overall costs of the CPS should increase as a result.

There are those in this House and outside it who have suggested that there are fundamental reasons why this is an improper reform. I do not find the arguments convincing. I try to look at the issue in a practical way. First, it seems to me bizarre that a distinguished criminal silk, like the current DPP and his predecessor, Dame Barbara Mills, forfeited their right to appear in the higher courts at the moment of appointment to Crown service.

The position of ordinary Crown prosecutors who would be able to exercise full rights of audience the moment they returned to private practice is equally anomalous. All those lawyers are professionals, paid to exercise their independent judgment and subject to the discipline of their professional bodies.

If there really were an objection of principle to prosecution by an employee of the state, how is it that we have tolerated a position in which Crown prosecutors prosecute in the magistrates' courts where 97 per cent. of criminal cases begin and end. How is it that the Scots tolerate prosecution by the procurators fiscal? How have we put up with a position in which the most serious criminal cases tried at the Old Bailey are prosecuted by senior Treasury counsel whose practices are, in effect, almost exclusively prosecuting crime?

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It has sometimes been suggested that there is a constitutional principle that a prosecution in the Crown Court should be conducted by a lawyer in private practice and not by a Crown prosecutor. Constitutionally, prosecutions are brought in the name of the Crown and are subject ultimately to the control of the Attorney. Until fairly recent times it was common for the Law Officers to prosecute in person in particularly serious or important cases.

It is true that a prosecution lawyer or any lawyer is required to be independent. But the independence required is independence of mind. The chief difference between the Crown prosecutor paid by the state to prosecute a case and a criminal barrister in private practice paid by the state to do so is that the former has security of employment but the latter who is in private practice is potentially in a more precarious position because he is beholden to his dominant client.

Some members of the Committee may be tempted by the argument that someone who is paid a salary by the state cannot be truly independent. All that is needed to refute that argument is to look at the position of the judges whose independence is not questioned. The senior professional judiciary are full-time salaried servants of the Crown. No one has plausibly suggested to my knowledge that they would increase their independence if they went freelance and were paid for their services on a case-by-case basis, although the exigencies of life and the Consolidated Fund might make that welcome to them albeit on other grounds. I believe that those members of the Committee who are not barristers will recognise these amendments as a set of special pleadings by the Bar. I hope that the noble Lord, Lord Thomas, will agree to withdraw his amendment.

12.15 a.m.

Lord Thomas of Gresford: Since my integrity has been attacked I should inform the noble and learned Lord the Lord Chancellor that I fought two elections as a Liberal before I became a barrister. In those days I was a solicitor. I had the privilege of transferring from one side of the profession to the other. Let it not be thought that to transfer from one side of the profession to the other has ever had any effect on my political convictions.

The noble Lord, Lord Bach, does not appear to appreciate that, like him, I am in the kick and rush business. Both prosecuting and defending I am in daily contact with the courts. In certain circumstances one informs the CPS what one proposes to do before one does it. That does not mean that one asks for permission to do what one believes is right in a particular case.

My purpose in moving the amendment is not that ultimately I have any objection in principle to the CPS prosecuting in the higher courts. I seek maintenance of the status quo in order that the pilot schemes that are now going on can be evaluated. I firmly believe that the quality of the CPS prosecutor at the present time is not up to the kick and rush in the higher courts and appeal courts where the most difficult and complex criminal litigation takes place. It may be that I shall be proved

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wrong, but at the moment the pilots that are being conducted have not produced any results that convince me to the contrary.

Further, I do not believe that the terms of service of the CPS can conceivably attract the best qualified people. Overall, therefore, the public interest may be damaged because there will be weak prosecution in the higher courts. If one still has independent people defending in such cases a weak prosecutor will be out

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of his depth. Having said that, I do not press the amendment at this time of night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey: My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at nineteen minutes past midnight.

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