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Lord Ackner: My Lords, we shall wait and see. I do not see how more solicitors will be encouraged to qualify to undertake advocacy in the higher courts while the tests produce a very high failure rate and indicate further that, generally speaking, solicitors are not enthusiastic about exercising those rights because they find that there is not sufficient work, it does not pay well enough or it is cheaper to go to counsel.
However, the point I am seeking to make is that if, contrary to what the noble Lord, Lord Hacking, anticipates, the demands upon the solicitor branch of the profession are not substantially reduced in order to enable them to have rights of audience in the higher courts, then the block contracts which are there, in the majority of cases, to be accepted by solicitors doing the work from beginning to end will not be able to be carried out.
The other point is the considerable faith which my noble and learned friend the Lord Chancellor has in conditional fees. I do not see how they can be accommodated by the Bar. The Bar will be in receipt of requests to take on cases on the basis of no win, no fee, but they will be the difficult cases. The easier cases will have been dealt with by solicitors and they will come to the Bar to speculate on the outcome of the difficult cases. The Bar is not structured to do that. Members of
the Bar will either be unable to take on those cases or will be unwilling to do so or some species of partnership will be devised which will be to the disadvantage of the public because with partnerships, the choice of barristers will be substantially limited by the obvious rule that one cannot have partners on both sides.Therefore, I am extremely concerned about the extent to which this Bill will encroach upon both the standards and efficiency of the profession. But in making those gloomy observations, I join in the congratulations offered to the noble and learned Lord the Lord Chancellor for the immense amount of hard work that he has put in to taking this proposed legislation through your Lordships' House. I thank him for the genial good nature and humour which he has shown, almost throughout all of it.
The Lord Chancellor: My Lords, this Bill has been before the House since the beginning of December. It has made excellent progress. We have completed every stage in the time allotted. I thank all noble Lords who have contributed to our deliberations for the good spirit in which the cuts and thrusts of debates have been delivered and accepted.
The fundamental purpose of the Bill is to increase access to justice. I am determined to build structures which will provide services that go much further towards meeting people's needs than legal services do at present. That is the purpose of the community legal service. That is the rationale behind contracting with quality-assured suppliers; behind conditional fees; behind extensions to rights of audience; and behind our reforms of the magistrates' courts system.
Anyone listening to debates in this House might have gained the impression that legal services, or at least those provided by the Bar, had attained a state of perfection, and that no change could possibly be for the better in the best of all possible legal worlds. In fact, we all know that many legal services are poor; many are disproportionately expensive; and not a few are both.
While our legal profession includes some of the finest minds in the country, the system often fails the ordinary person, whose pocket is small and whose case may be mundane.
I have had the feeling at times during our debates that party politics had been suspended, and that I was addressing a meeting of the militant tendency of the Bar (which a few solicitors had been granted special dispensation to attend). For that reason, I particularly welcomed the support of the noble and learned Lord, Lord Mackay of Clashfern, in the Division on 28th January on Clause 31 relating to employed lawyers.
I believe that the House has accepted most of the important principles in this Bill. In particular, the House has accepted the principle of a community legal service. The House has accepted that to take on legal aid cases lawyers must meet prescribed quality standards. The House has not resiled from the principle of a greater use of conditional fees, although doubts have been expressed, as they always are about the new. The House has accepted that a more streamlined system than the
current ACLEC arrangements should be put in place, and your Lordships accepted my proposals for reinforcing the ethical duties of lawyers.There was, I believe, no real dissent from the principle that appellate procedures in civil matters should be reformed to ensure that appeals are heard at the right level, and are dealt with in a way which is proportionate to their weight and complexity; and the proposals for reforming the administration of the magistrates' courts and unifying the stipendiary Bench have been accepted.
I am grateful to my noble friend Lord Hacking for quoting what I said by way of undertaking at the outset of the Committee stage. I am grateful to those of your Lordships who have said that I proved as good as my word and that, as a result, we have a Bill that has been substantially improved. I do not believe that a Minister proves his virility by saying "no" to better arguments. The reverse is true.
First, I thank the noble and learned Lord, Lord Simon of Glaisdale, for his tireless efforts, made with that mix of humour and bite which we associate with him, to improve the drafting of the Bill. I was pleased to be able to accept several--not as many as he would have liked--amendments he proposed, and the drafting is consequently tighter and more succinct.
I have accepted, or adopted the substance of, many other amendments from a number of noble Lords, in particular the noble Lords, Lord Kingsland, Lord Goodhart, Lord Thomas of Gresford and Lord Phillips of Sudbury, my noble and learned friend Lord Archer of Sandwell and my noble friend Lord Clinton-Davis, and the noble Baroness, Lady Wilcox. These amendments serve, in particular, to make explicit what had been implicit in the Bill, or to ensure greater transparency for the decisions and actions that will be taken under it. I was particularly pleased to agree to the amendments of the noble Baroness, Lady Wilcox, which ensure that consumer affairs will be a criterion for membership of both the legal services commission and the legal services consultative panel. I much appreciated her visual and audible pleasure in having her amendments accepted.
In addition, I made a large number of changes following the report of the Select Committee on Delegated Powers and Deregulation. I was anxious to achieve a better distinction between those substantive matters which should be subject to further procedure in this House and another place, and those matters of an administrative or budgetary nature which require no such procedure. I believe that the House is now broadly content that the parliamentary procedure attaching both to my powers and the legal services commission's funding code are appropriate.
I agreed to withdraw our proposals to make conditional fee agreements available in matrimonial cases which only involved property. While I can still conceive of cases where such agreements might be appropriate and helpful, I concluded that, on balance, it is difficult to identify winners or losers in matrimonial cases and that these agreements are not generally a practical proposition in this area, and that is the position to which I adhere.
I was also pleased to accept the proposals of the noble and learned Lord, Lord Ackner, for an ethical code for employees of the legal services commission providing services as part of the criminal defence service. However, an observer, unused to the ways of this House, might then have been more than puzzled to observe the noble and learned Lord marching through the Lobbies to support an amendment that would ensure there could be no-one to whom his code could apply. As an older hand, I cannot say I was surprised; but in retrospect I am inclined to wonder whether my giving nature had received the response it deserved.
Before today, the debates on the Bill had brought up four issues on which the opinion of the House was sought. The Government won the Division on whether the cost of the criminal defence service was relevant when setting the budget for the community legal service fund. Notwithstanding that, I recognise the genuine concern that the demands of the CDS will draw resources away from the CLS. I spoke about this issue on the amendment to Clause 2 moved today by the noble Lord, Lord Goodhart. I repeat that I am determined to ensure that the CLS is properly funded.
The noble and learned Lord, Lord Lloyd of Berwick, persuaded your Lordships to insert a new Clause 1 in the Bill. This clause purports to set principles or objectives--it is a little confused as to which--for the operation of the community legal service and the criminal defence service.
The amendment was pressed despite the fact that the Government were proposing their own amendments which clearly set out the separate purposes of the community legal service and the criminal defence service. The new clause creates confusion by trying to cover two distinct schemes with a single set of objectives.
Also, as drafted, I regard the clause as expressing unrealistic aspirations. It seems to suggest that the taxpayer should meet any legal costs that a person wants to incur but cannot afford. No test of merits and no limits of financial eligibility are mentioned. There is no recognition of other ways in which people might finance their cases, such as by insurance or conditional fees; and, equally, no recognition that not everyone can have a solicitor's office on the doorstep, any more than everyone can have a hospital or a supermarket on the doorstep--although by and large one does need to visit a hospital, or bring goods home from a supermarket--whereas telephone, fax, e-mail and post can today play a vital part in providing legal help. The reforms in this Bill will enable us to improve access to legal services for people who live in rural areas. But to suggest that those people could and should enjoy the same access as people who live in large cities is pie in the sky.
We will seek to remove these deficiencies in another place. But at the same time we will consider whether it would be helpful to retain a provision enshrining the principle of non-discrimination. Rather oddly, the current clause seeks only to prevent discrimination against the disabled, whose interests are already protected by the Disability Discrimination Act 1995. It
does not mention other vulnerable groups who may be subject to discrimination or prejudice, for example ethnic minorities. The noble and learned Lord, Lord Lloyd of Berwick, acknowledged that his amendment might be too narrow in that respect.Finally, I come to the two Divisions on the issue of rights for employed lawyers. I have left them until last because they are, I suggest, the only points of real substance on which the House was divided. The Government were defeated in Committee on Clause 31 in relation to employed lawyers in the Crown Prosecution Service and more widely; and on Report in relation to employed lawyers in the criminal defence service. The result is that, as the Bill stands, no employed lawyers will enjoy rights of audience in the higher courts, whether they are employed by the Crown Prosecution Service or any other government body or private company. The criminal defence service will not be able to employ lawyers to carry out any legal work, whether the provision of advice or assistance, or representation in the courts.
First, I can assure the House that the Government intend to seek the reinstatement of these provisions in another place. Secondly, let me repeat that we are not proposing to establish a comprehensive public defender system. We are proposing a system in which criminal defence services are provided by a mix of employed lawyers and lawyers in private practice. As I said on Report, this is a modest proposal, which has provoked a quite disproportionate reaction.
It is contended that employed advocates in the Crown Prosecution Service cannot behave ethically if they are prosecuting counsel in the Crown Court. Yet they undertake this role every day in the magistrates' court where 97 per cent. of criminal cases begin and end. There are vast numbers of "either way" offences in the criminal law. If the prosecution is in the magistrates' court then the CPS lawyer can prosecute but not, it is said, if the same case happens to go to the Crown Court. That simply does not wash, and every independent outsider knows that it does not. I simply do not believe that employed advocates will suddenly act unethically if they appear in the Crown Court rather than the magistrates' court. By Clause 37, the Bill reinforces the existing ethical duties of the professions.
I do not believe that employed lawyers should carry the stigma that has been placed on them by some in this House. I believe that arguments which prevailed here will be seen by many outside this House as motivated more by lawyers' self-interest than by high principle.
Your Lordships may also find it helpful if I mention one or two other changes that we hope to make in another place. Following undertakings made in this House, the Government will be bringing forward amendments to clarify the definition of conditional fee agreements, to ensure the legality of privately-managed contingency funds, and to modernise the principles underlying costs between the parties to litigation.
We hope to simplify the structure of Schedule 2 about the scope of the community legal service fund. There will also be additions to Schedule 9 which transfers administrative functions to justices' chief executives,
and further detailed provisions about the constitution, structure and powers of the Greater London magistrates' courts authority.We are giving active consideration to the possibility of legislating to make subscriptions to the Bar Council compulsory. If we conclude that a statutory provision would be in the public interest, we will bring forward an amendment to this Bill in another place.
Also, I confess that I am dismayed that performance at the Office for the Supervision of Solicitors seems to be deteriorating. The effective handling of complaints is important both for those who use legal services and for the long-term health of the legal professions. I am considering whether the Government should take any action and I do not rule out the possibility of legislative change.
The Bill remains in pretty good health. Its health has not declined at all today. It will now go to the other place, from which I am confident that it will emerge in even more robust health.
On Question, Bill passed, and sent to the Commons.
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