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Lord Campbell of Alloway: My Lords, with respect to the noble Baroness, the concern is not one that manifests itself purely in your Lordships' House. It is a concern that manifests itself in both branches of the profession and in particular on the circuits throughout the country. It is not a question of resistance to change; it is a question of the quality of the service and maintaining that quality so that, as has been put so eloquently--I shall not repeat it--the citizen who is stuck in a police cell has at least the opportunity to choose someone who is independent to look after him.
It is said that that type of independent representation will not be excluded. It may not be excluded by statute, but if we ride two systems in tandem, it may well be the case--as it is genuinely feared to be--that the duty solicitors will not be available to provide the service or the choice for the man in the cell.
I do not understand what is meant by the phrase, "quality bench-marking for the profession". Certainly the Bar maintains its quality in its own way, and has done so with conspicuous success. From the start of one's time in the circuit one learns the ropes through the discipline that is imposed by the head of chambers and the advice and discipline imposed by the judges and by the general traditions under which we operate. I do not understand how that can conceivably be applied to people who work under contract. Contracted men are subject possibly to union rules, to government control, to regulation by a commission, or to retirement. They are subject to this and subject to that, but they are never free independent lawyers. I support this amendment. I can see no justification for the introduction of a system of state defenders.
Lord Hacking: My Lords, it is important before we conclude this debate to look at exactly what these amendments seek to achieve. Amendments Nos. 97, 98 and 104 tabled by the noble Lord, Lord Thomas of Gresford, and Amendment No. 103 do no less and no more than seek to remove altogether the Criminal Defence Service. Indeed, the noble Lord even seeks, in Amendment No. 97, to remove any right of the Criminal Defence Service to give advice.
The noble Lord, Lord Kingsland, has not yet spoken to Amendment No. 102. That is a more moderate amendment. If I understand it correctly, it seeks to remove the operation of the Criminal Defence Service in the higher courts.
Lord Kingsland: My Lords, Amendment No. 102 has nothing to do with me. My amendment is Amendment No. 103, which does not seek to remove the Criminal Defence Service. It simply seeks to limit its representational powers to magistrates' courts.
Lord Hacking: My Lords, I am grateful for that correction. My reference is to Amendment No. 103, which effectively seeks to remove representation by the Criminal Defence Service in the higher courts--which is of course a more moderate amendment.
There have been some very good speeches so far in this debate. I always listen with great respect to the noble Lord, Lord Carlisle, and to my noble friend Lady Mallalieu. Indeed, the noble Lord, Lord Carlisle, and I stood almost alone among the great political parties in debates on the Crime (Sentences) Bill in our firm opposition to mandatory sentencing and other matters. Similarly, in debates in this House, particularly concerning penal and social affairs, I am almost always in entire agreement with my noble friend Lady Mallalieu. I assure her that I (I do not speak for other Members of the House) do not consider that she is of addled mind, that she is a backwards looking lady or a feather-bedder, to refer to the three expressions that she used in her remarks.
The noble Lord, Lord Carlisle, was therefore right to identify one of the virtues of the present system, which is true not only of barristers but of solicitors--that we are open to representing both sides. I believe that that is a virtue and the noble Lord was right to draw attention to it. The noble Baroness, Lady Mallalieu, was right to draw attention to an essential fact in the bringing in of this new scheme; namely, to quote her words, that the state must not control the defender.
The reality is that the present system does not always work very well. We have the duty solicitor system, but sometimes very young, immature lawyers are required to do that duty and sometimes advice is in the hands of a novice. The barrister defender system in the private sector does not always go very well. For example, there is an enormous proportion of last-minute returns of brief, and barristers often have to appear in court without any proper opportunity to read their papers before the case has started.
Therefore, my noble and learned friend the Lord Chancellor is bringing forward this total review of both the criminal and the civil side, setting up the criminal defence service and bringing it into use on an "as need" basis. That is all that he is proposing. He is not proposing, as my noble friend Lord Clinton-Davis said, to abolish altogether the private defender in the system. Indeed, the system will continue to rely substantially on the independent private practitioner.
There are rural areas where the accused is not presently well served. It is a long time since I appeared as a member of the Bar at the Bodmin Crown Court in what was then the Bodmin Quarter Sessions. However, it is my recollection that amid all the dispute about rights of audience there was a recognition in certain areas in Cornwall and Devon that solicitors should have full rights of audience to represent defendants in that area. That was before the Courts and Legal Services Act came into force. The reason was very simple: there was a shortage of members of the Bar to serve those areas. That is not to criticise the Bar; it is to recognise that there are certain areas where further assistance needs to be provided to the accused in the defence services. That is all that my nobble and learned friend is proposing.
I must say to the noble Lord, Lord Thomas of Gresford, that there is not a shred of evidence that the proposed new service will be a 9 a.m. to 5 p.m. service. In so far as that comment is based upon the work of the CPS, it is a disrespectful one.
This House can be very conservative, not only politically in its contents, but also in its judgment over innovation. The amendment that has been pressed upon your Lordships during this debate seeks to prevent us moving forward, and to prevent us even having an alternative to the present system for the defence of the accused. At the end of the day, we are here to see that the defence is well represented.
As to Amendment No. 103, tabled by the noble Lord, Lord Kingsland, I shall make just one comment. It seems to me that it is one of the advantages of the new system that, once a defence is in the hands of a member of the Criminal Defence Service, it would be thoroughly sensible, particularly, for example, in the case of a guilty plea, if the salaried defender took the case all the way through to the Crown Court. It would merely blunt efficiency if he were to be cut off from representation at the magistrates' level. For all of the reasons that I have attempted to advance, I hope that my noble and learned friend will robustly reject these amendments.
The Lord Chancellor: My Lords, the amendments in this group seek to remove completely, or, in the case of the noble Lord, Lord Kingsland, restrict, the ability of the legal services commission to provide services by employing salaried lawyers.
The purpose of the Criminal Defence Service is to ensure that people subject to criminal investigations and proceedings receive the advice, assistance and representation that the interests of justice require. The Bill provides flexible powers to achieve that in whatever ways will secure the best value for money, consistent with the interests of justice. One of those powers is the power for the legal services commission to provide some advice, assistance and representation through its own employees. It is that modest power that these amendments seek to strike down or restrict.
I have repeatedly made it clear that it is not the Government's intention to move to a fully-employed public defender service or anything like it. But that does not deter the noble Lord, Lord Thomas of Gresford,
The noble Lord, Lord Hutchinson of Lullington, said, with a sense of discovery--he used the words, "There you have it"--that what was intended was that all, or almost all, criminal defence services would over time be provided through contracted or salaried lawyers. What he omitted to note was that contracted lawyers are lawyers from the independent legal profession. Salaried lawyers would be the lawyers employed by the criminal defence service. It is intended that there should always be mixed provision and a choice.
Some disparaging things have been said about the lawyers who would work for the criminal defence service, which has been described as prospectively a part-time service, as if lawyers in public service would not be as committed as lawyers in independent practice. I can assure noble Lords that the dedicated Civil Servants in my own private office, who work long hours which in many other walks of life would be regarded as unsocial, do so out of a strong sense of public service.
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