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Baroness Thornton: My Lords, I agree with my noble friends Lord Borrie and Lord Clinton-Davis. I would not dream of calling the noble Lord, Lord Hutchinson, any name at all. However, I disagree with him and feel that he has a rather romantic view of the standing in which the legal profession is held in this country today.
We have had considerable discussions about the issues surrounding salaried defenders and the role that they might play in the new legal scheme being proposed. An ordinary person requiring legal services needs, most of all, a guaranteed standard--I am sure we all agree on that. Secondly, they need some choice. I believe that this proposal to establish salaried defenders gives them that choice.
People do not understand why members of the legal profession feel the need so fiercely to protect their interests and guarantee their incomes. It does not happen elsewhere; why should it happen to them? I also do not understand why noble Lords on the Liberal Democrat Benches feel the need so fiercely to defend those interests.
Lord Thomas of Gresford: My Lords, will the noble Baroness accept that we are not here to defend the legal profession? We are here because we know something about it. We know something about criminal procedures and the way in which the criminal system works in this country. We are concerned about the quality of justice if the standard of advocacy in defence criminal work is reduced.
Lord Kingsland: My Lords, we on these Benches support the Motion of the noble Lord, Lord Thomas of Gresford, for four reasons. First, we see no evidence for the need for this. Secondly, we do not understand how injecting a degree of nationalisation into criminal defence can enhance competition. Thirdly, we do not understand how the quality of criminal defence in this country will be improved by a system of state defenders. Fourthly, we fear that the introduction of state defenders will certainly undermine the perception, and also perhaps the reality, of criminal justice. That is particularly true when we consider that in future we are likely to be faced in many trials with not only the prosecution being represented by government officials in the form of the Crown Prosecution Service but also the defence being represented by a government official.
The Lord Chancellor: My Lords, in contributing to this debate I speak also, with your Lordships' leave, to Amendments Nos. 28 to 30 and 34 to 36. As the noble Lord, Lord Thomas of Gresford, observed, this is a course we have been round before.
I did not find as the noble Lord's most persuasive argument that it is only sturdy members of the Bar such as himself who are capable of enduring the indignities of the forfeiture of their restaurant bills as a condition of admission to prison, which he would have us accept would be completely beyond the resoluteness or sense of economy of salaried lawyers. I remind him that many salaried solicitors are employees with rights of audience who act for defendants in criminal cases and do so to a high standard.
The noble Lord, Lord Hutchinson of Lullington, complained about our addressing this subject at around eight in the evening. But when the noble Lord was the industrious and much admired leading defence counsel that I recall, 10 minutes after eight would not have been regarded as late by him. He would probably just be getting round to considering his brief for the next day. If I may say so, he was in vintage form a few minutes ago and in fine voice.
Amendments Nos. 27 to 30 reintroduce powers for the Legal Services Commission to employ staff directly to provide some criminal defence services. Salaried defenders will give the public a wider choice of representative. They will provide the Legal Services Commission with the means to assess value for money provided by criminal defence services generally. They will increase the commission's flexibility in the provision of criminal defence services and they will provide a competitive stimulus to lawyers in private practice.
The state is under no obligation to guarantee to the legal profession that it and it alone may provide publicly-funded legal defence services. And provided high standards are maintained, the public could gain from the introduction of salaried defenders as part of a mixed system of provision of legal services. I tend to wonder--I am sure the noble Lord, Lord Thomas of Gresford, will forgive me for wondering--whether he is one of the last of the timorous souls who believe that the Bar cannot survive on its own merits but needs to be cocooned with restrictive practices and guarantees of state provided work.
As I said in Committee, I stress that it is not our intention that salaried defenders should supplant the independent Bar, or indeed the solicitors' profession. That will never happen. We see value in the commission having power to introduce into the system a salaried element, subject to appropriate ethical safeguards, but it will always be a mixed system. We are not--repeat "not"--establishing a comprehensive public defender system of the type found in many parts of the United States of America. Further, there will be consultation with the professions and others about the detailed arrangements for the introduction of salaried defenders. Following that consultation, the Legal Services Commission will establish pilot projects to test and evaluate different models for providing services through salaried defenders. We would start with small pilots and monitor them to see how effective the arrangements were. The pilot projects would be extended across the country only after we had experience of salaried defenders in practice. We will learn from the example of successful overseas schemes and the current pilot in Scotland to meet the particular needs of England and Wales. Only against that background would decisions be taken, based on evidence.
It is clear from international research that mixed systems with salaried service defenders operating alongside private lawyers can be the most effective way of providing criminal defence services. That is the view of Bar associations, including those in Canada and America. It is advocated by official bodies such as the Legal Services Corporation and the National Legal Aid Advisory Committee in Australia.
There are many methods of providing mixed systems, with some particularly good examples in Canada, which has more than 20 years' experience of mixed systems. In Scotland, a Public Defence Solicitors Office was established as a pilot project from 1st October last year. It is based at a single office in Edinburgh and employs a maximum of six solicitors. Initial reports about the Scottish pilot have been favourable. It allocates defendants to the PDSO, but a significant proportion--22 per cent--of clients already use it by choice. We shall take account of the results of the Scottish pilot evaluation when developing pilot arrangements under the Bill.
There are some very good public defender schemes abroad, but I acknowledge that others are less satisfactory. Adequate funding is the key to success. However, that is also true of schemes that purchase services from the private sector. Most of the schemes that have been criticised are not underpinned by a
However, unlike the Scottish pilot, which was based on assigning clients to the PDSO, Clause 15 builds choice into the system from the outset. Regulations cannot be used to require a person to use a salaried defender. We are confident that salaried defenders will develop to play a valuable role in the criminal defence service without compulsion. I challenge the private profession to demonstrate the same confidence in the service that it provides. I have that confidence and believe that the private professions have nothing to fear from competing alongside salaried defenders in a system based on an informed choice of representation.
Those who disagree with the amendment put forward in another place are effectively seeking to protect the vested interests of an established legal profession and to prevent the public from having the choice. I am surprised and disappointed by the Liberal Democrats' position. They are not prepared to accept that there might be lessons that we can learn from other countries and that there may be a case for considering arranging our legal services differently. I regret that restricted vision that is not prepared to accept that there can be merit in change and diversity.
Subject to the safeguards set out in the Bill, there is great merit in allowing criminal defence services to be provided by private practitioners--whether in independent practice or employed by law firms--and those employed by the criminal defence service. For those reasons, I commend Commons Amendments Nos. 27 to 30 to the House and invite the noble Lord, Lord Thomas of Gresford, to withdraw his Motions to reject them.
Commons Amendments Nos. 34 to 36 relate to Clause 16, which provides for a code of conduct for salaried defenders employed by the Legal Services Commission. However, it is likely that we shall wish to pilot the provision of salaried services, not only by lawyers employed directly by the commission but by those employed by separate not-for-profit bodies established and maintained specifically for that purpose. As originally drafted, the clause would not apply to salaried defenders in the latter situation. Amendment No. 34 ensures that the code of conduct will apply in both situations.
Amendments Nos. 35 and 36 reflect suggestions made by the now shadow Attorney-General, who led for the Opposition on the Bill in another place. Amendment No. 35 requires the code to include duties on employees providing criminal defence services who are members of a professional body--be they barristers, solicitors or legal executives--to comply with the rules of that body. Amendment No. 36 requires the commission to consult the Law Society and the General Council of the Bar
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