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4.15 p.m.
The Lord Chancellor: My Lords, I have no reason to suppose that committed, salaried defenders would show anything other than dedication to public service.
I firmly believe that a salaried element has an important role to play in the overall scheme. First, it can step into gaps which cannot be filled adequately by the private profession alone. An example might be a rural area with relatively few solicitors' firms undertaking criminal work. The provision of a 24-hour duty solicitor service at the police stations in that area might be too great a burden for those firms to bear alone. At present, the result would probably be excessive use of telephone advice rather than attendance and over-reliance on non-qualified representatives; in other words, the quality of the service would suffer. In future, the commission's salaried employees could share the provision of 24-hour coverage with the local firms.
Secondly, it will provide the individual with a wider choice. It is my belief that salaried defenders will be seen as providing at least as good a service as private practitioners and that they will prove to be popular. In some areas there may be a limited number of firms which meet the quality standards for a contract. A salaried defender will therefore provide additional choice.
Thirdly, a mixed system of salaried and private providers will enable the commission to benchmark the costs and quality of each against the other. That spur of competition for salaried and private defenders will help promote value for money. It is my belief--and there are
successful systems overseas which support that belief--that a mixed system of private and directly-employed lawyers can provide better value for money than either a fully private or a fully employed system. I make no apology whatever to the noble Lord, Lord Carlisle, for seeking better value for money.Last Thursday the Liberal Democrat Benches pressed an amendment--not their own--that was concerned with the risk that increases in the cost of criminal defence services might reduce the resources available for the community legal service. The amendment was, rightly, rejected by your Lordships. But the underlying concern is real enough: indeed, I have expressed it repeatedly myself. The answer is to ensure that we can secure the best value for money for criminal defence services consistent with the interests of justice. Many of your Lordships may therefore think that it beggars belief to find that those same Liberal Democrat Benches now seek to strike down one of the powers which will help achieve value for money.
What are the arguments against this proposal? I wonder that it has not yet been said that, like Swift, I am proposing to reduce the private Bar to such penury that its members will have to eat their children. No, the objections reduce, I think, to two. First, it is said that salaried defenders will be second-rate, under-funded and overworked. That charge is developed by anecdote, not by evidence. The many successful public defender schemes in other countries are not cited. Secondly, it is said that defenders employed by the state will be insufficiently independent.
My proposals are underpinned by a great deal of research into public defender schemes abroad. The picture is mixed. There are some very good public defender schemes and some poor ones. It has been said that salaried defenders will be overburdened by heavy caseloads. Heavy caseloads and insufficient funding go hand in hand. Caseload limits are unnecessary where services are appropriately resoursed. I accept that adequate funding is essential; but that must be true also of schemes that purchase services from the private sector. Most of the horror stories relate to public defender schemes in the United States of America. These are organised at state or, more commonly, county or court district level. They are not overseen by any federal agency nor underpinned by the kind of statutory framework proposed in the Bill. I am determined to ensure that the criminal defence service, in both its private and directly employed elements, will be adequately funded to provide the quality services that suspects and defendants undoubtedly require.
We shall, of course, seek to draw only on the best examples from other countries when establishing salaried defenders in England and Wales. We shall also be taking account of the Scottish pilot. Salaried defenders will be introduced in a measured way, involving consultation and piloting to establish how and where salaried defenders can be deployed to best effect.
Nor is there any reason to believe that only the second-rate will be willing to work as salaried defenders. Salaried employment as a criminal defender could prove an attractive proposition for many
committed and public-spirited lawyers. Reference has been made to the hard-pressed barrister, with no pension or guaranteed income. Why should he or she not take advantage of this new career opportunity? The increased rights of audience proposed in Part III of the Bill should lead to greater career flexibility between salaried defence lawyers, crown prosecutors, the independent Bar and solicitors in private practice. Far from salaried lawyers becoming too "prosecution" or "defence" minded, this increased flexibility is likely to broaden experience and reduce that risk. At present, as all those who have spoken know perfectly well, there are many advocates in private practice who appear almost exclusively for either the prosecution or defence.I now turn to the issue of independence. It has been argued that salaried defenders, motivated solely by crude bureaucratic targets, might collude with Crown prosecutors to find ways of shortening cases and clearing lists. Crown prosecutors and salaried defenders would work for different organisations. But the charge of collusion is never heard when two barristers from the same chambers appear on opposite sides in the same case. The assumption must be that lawyers in private practice are entirely free from any pressures that might conceivably threaten their professional ethics. That assumption is not well founded.
Is the solicitor, a partner in his or her firm, free of the pressure of the balance sheet? Are salaried solicitors in private firms immune to the pressure of the time sheet and need to impress the partners and retain valued clients? These pressures could just as easily influence judgment and actions as the pressures faced by a state-employed lawyer. In both cases it is the ethics of the profession, backed-up by vigilant judges, which ensure that the highest standards are maintained.
The pressing need for most members of the Bar is to ensure that they are briefed to appear in subsequent cases. Their livelihood depends upon it. Very many lawyers, solicitors and barristers, are largely dependent on state funding, through legal aid or prosecution work, for their financial survival. Are they really more independent than an employee? Pressures exist in many forms. The notion that lawyers in private practice are free spirits who live a halcyon existence, idyllic and free of pressures, is fanciful and unreal.
The reality is that the safeguards that will exist to protect the independent professional judgment of salaried defenders will, if anything, exceed those which apply to vulnerable barristers or profit-led solicitors. Salaried defenders will have a secure salary and a pension; they will not face the need to turn a profit case by case. They will enjoy protection from unfair dismissal.
It is most important that any salaried lawyers employed by the legal services commission should uphold the highest standards of the profession. That is why Amendment No. 122, which will be debated later, will introduce a comprehensive statutory code for salaried defenders to guarantee those standards. Clause 35 of the Bill also gives statutory force to the duty, which all advocates have to the courts before which they are engaged, to act in the interests of justice. Their duty to comply with the conduct rules of their professional body will again be underscored by statute. These duties take
precedence over any other civil law obligation that an advocate or litigator may have, including any obligations to his or her employer. The necessary safeguards of professional ethics will be in place. I simply do not accept that salaried defenders will face greater pressure on their independence, ethics and duties to the court and their clients, than are already faced and generally successfully resisted by private practitioners.The noble Lord, Lord Kingsland, has described shortly but not yet moved Amendment No. 103. Since it is in this grouping I shall deal with it at this stage. By this amendment the noble Lord seeks to exclude salaried defenders only from the higher criminal courts. I cannot see the logic of that restriction. It may be that a suitably-qualified and competent lawyer employed by the commission is chosen by a suspect to advise and assist him in the police station. The same lawyer would probably represent the client in the magistrates' court. Surely it is appropriate for that lawyer, if qualified to do so, to continue to represent the client if the case goes to the Crown Court, perhaps on committal for sentence. This will avoid duplication of instruction, secure value for money and, at the same time, satisfy the defendant, who is more likely to have confidence in a representative who is a familiar face.
Some noble Lords referred to the problem that affects the clients of the independent Bar arising out of returned briefs. A Crown Court survey conducted by the Royal Commission on Criminal Justice in 1992 by Professor Zandar found that one third of defence barristers said that they had their briefs on the day before the hearing or only on the day itself. Defence barristers said that the brief had been returned from other barristers in 44 per cent. of all contested cases. This causes great dissatisfaction to clients of the private Bar. I submit to your Lordships that the possibility of the engagement of salaried lawyers by the criminal defence service will break down restrictive practice, offer greater choice and improve the quality of service.
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