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On Question, amendments agreed to.
The Lord Chancellor moved Amendment No. 111:
Lord Thomas of Gresford moved, as an amendment to Amendment No. 111, Amendment No. 112:
The noble Lord said: My Lords, I am grateful to the Lord Chancellor for his explanation of this series of amendments. He said that he could not accept Amendment No. 112 because it would undermine the approach that he has adopted whereby everyone who is supported through the legal services commission and the criminal defence service will either be an employed lawyer--if legislation is passed to that effect--or, alternatively, will be under contract.
One can appreciate the noble and learned Lord's aim as regards solicitors. I can see that although it limits choice in the sense that contracts may not be freely given and it may create a monopoly within a particular town or area, those services should be provided by only one firm. However, as regards the Bar, we are in a difficult and different situation which I totally fail to understand. The issue has been raised time and again as to whether it is intended that there should be contracts between a set of chambers, or a group of practitioners within a set of chambers, or an individual practitioner, an individual barrister, and the criminal defence service.
The answer that the noble and learned Lord has so far given to this difficult problem, which seems to me to alter the whole way in which the Bar has historically worked, is, "I am sure that barristers are bright enough to work out some way in which this can happen". When changes are proposed, one would like to have a little more guidance. Suppose, for example, I contract with the criminal defence service that in the course of the next year I shall do 12 serious cases, and I am instructed to do six. I do not receive instructions to do the other six; I have only six on the plate. I have agreed to do the 12 cases for a lump sum, but I am not asked to do that. Do I get the lump sum? Do I get the whole amount because that is what I am holding myself out to do? Alternatively, suppose I am given 18 cases and I have contracted on the basis of 12. What happens then? Is there a renegotiation of the contract? Difficulties arise when I and my one colleague hold ourselves out as being prepared to do this work and a lump sum is presumably paid jointly to us which we in some way have to find a formula for dividing.
As regards chambers, the position is even more difficult. Let us think of a criminal set of chambers, such as the chambers of the noble Lord, Lord Carlisle of Bucklow, which I believe does little other work. I may be trespassing here but I believe it is a well known set of criminal chambers. Do they contract as one set of chambers for a figure of, say, £2 million and employ some administrative way of dividing out the work? There is no guidance. Until there is some positive suggestion to which we can respond, it seems to me entirely wrong that we should face regulations which state that you are either contracted or you are employed and if you are not, you do not get any work and you do not get paid.
This amendment is set down in a serious vein. Perhaps this is not the moment to divide on this issue but it is certainly a moment to ask for clarification once more on this extremely difficult topic. I beg to move.
Lord Carlisle of Bucklow: My Lords, I support what the noble Lord has said. I hope that the Lord Chancellor will accept that certainly I, and I believe the noble Lord, Lord Thomas, ask these questions in a genuine desire to assist. I remain bewildered to understand how the contracts which the Lord Chancellor says he wishes to see between the commission and members of the Bar will work.
When I raised this matter at the previous Report stage of the Bill, the reply that I received from the noble and learned Lord, Lord Falconer of Thoroton, was really what the noble Lord, Lord Thomas of Gresford, has just said. The noble and learned Lord said,
I declare an interest as a member of the Northern Circuit; I am sure that the noble Lord, Lord Thomas of Gresford, will declare an interest as a member of the Welsh Circuit. Is it suggested that the commission can negotiate with, say, the leader of the circuit on behalf of the circuit? Can it negotiate and say that so much work will be done in that area by the Bar in exchange for a lump sum of money? If so, who then decides who does that work?
Unless one totally changes the whole ethos and present situation, the Bar consists of individuals who are in competition with each other. Where you have a group of individuals in competition with each other, who is to dictate? Is it the leader of the circuit who decides who does what case? Alternatively, is it, as at the moment, the right of the individual, through his solicitor, to go to the counsel of his choice, if he is available? This applies equally to chambers. The noble and learned Lord the Lord Chancellor has said that you could contract not
Does the Lord Chancellor's Department envisage that in future there should be direct access, or does it come through solicitors? If it comes through solicitors, then, as the noble Lord, Lord Thomas, has said, what happens if the solicitors do not brief the member of the Bar to the extent to which he has contracted to do the work? If it is a contract with a group within the chambers, who decides who should do an individual case in a profession where people are in competition with each other? Is it the group of barristers together?
Finally, and perhaps most worryingly of all, is it intended eventually that the only person who can do the work is the contracted barrister? Perhaps the noble and learned Lord can explain. As I understand it, you have a contract with a solicitor who will do a certain amount of work, which will include his disbursement for paying members of the Bar. If he chooses to go to the chambers of the noble Lord, Lord Thomas of Gresford, or the chambers in which I have my name, will he still be free to choose the barrister he wishes within those chambers, or will he be limited to one of the barristers who has individually contracted with the commission? If it is the second alternative, it seems to me that you are very substantially reducing the choice of the defendant or individual litigant. You are also making it quite impossible for people ever to start in the profession if they have to be an already contracted party before they can do any work of this nature.
I repeat, I am quite prepared to accept that the noble and learned Lord the Lord Chancellor believes that there is a great future in contracting and that it is advisable and sensible for obtaining value for money. I ask these questions because I remain genuinely bewildered about how the system will work when you are dealing with a profession where each individual is in direct competition with the other.
The Lord Chancellor: My Lords, I have to say that on 2nd May 1997 I gave up giving legal advice, whether for reward or otherwise. I do not regard it as any part of my function at this Dispatch Box to give legal advice to those who, if I may say so, are as well equipped to give it to themselves as I am to give it to them.
I want to set the record straight. I am a friend of the Bar and I want the Bar to help itself. But I do not propose to advise the Bar how to help itself. I do not feel that I should be required to give legal advice to--of all people--the Bar of England and Wales, as to how to contract. Many years ago--indeed, in 1978--I had the privilege of being instructed by my predecessor, the late Lord Havers, to represent him in what was then called an industrial tribunal. The issue concerned whether a barrister's clerk was employed or self-employed: if he was employed, was there a contractual relationship between him and each and every member of chambers, or only with the head of chambers, or perhaps with the members of chambers for the time being as a contractual unity?
I agree that these are difficult questions, but there is some learning available on them which I would have thought is quite accessible to the Bar. I want to set the record straight. I have been expressing a concern for the Bar. If contracting proceeds with solicitors only and not directly with the Bar, the Bar will be left perhaps in some state of mercy in the sense that the solicitor will contract for the total provision of services. The solicitor will then sub-contract with individual barristers at terms to be negotiated between the solicitor and the barrister--and the solicitor will hold the whip hand because he has the contract. I have said time and again that the Bar, with all the expertise at its disposal, should be addressing how barristers could contract direct. The doors of my offices are open and my officials will be delighted to discuss this with the Bar.
I would have thought that the Bar is in a unique position to advise itself as to how effectively to contract. The noble Lord, Lord Thomas of Gresford, asked all sorts of questions about whether the contract would be entire or whether the consideration could be apportioned. With the greatest courtesy, he must give himself his own legal advice. The short answer is that the terms of the contract, whatever they may be, will rule.
I believe that contracting is a change for the better, and that those who oppose it perhaps feel that any change for the better is a contradiction in terms.
Page 10, line 28, after ("representatives") insert ("to act for him at any one time").
Page 10, line 30, leave out ("if another representative has been") and insert ("in place of a representative").
Page 10, line 31, at end insert--
("( ) Regulations under subsection (6) may not provide that an individual may select only a person employed by the Commission.").
Line 3, at end insert ("or may not select a non-contracted private practitioner who is accredited to provide services of the kind required.").
"The question of how the legal services commission will contract with the Bar is plainly, to a large extent, in the hands of the Bar".--[Official Report, 11/2/99; col. 396.]
With respect, surely the Bar and the House are entitled to know the thinking of the Lord Chancellor on these matters. With the greatest respect to the noble and learned Lord, Lord Falconer, he confused me further when he went on to say:
"The groupings might be chambers, people within chambers, or other groupings, including, for example, circuits".--[Official Report, 11/2/99; col. 397.]
5.45 p.m.
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