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Lord Ackner: My Lords, in the words normally associated with a dying declaration, I have a settled, hopeless expectation that the Government will inevitably get their way. But I should like to record my personal dismay at the Government's dismantling of our system for the administration of justice as we know it.
There is no demand; there is no need for a state criminal defence system. Why therefore is it being foisted upon us? The answer, I fear, is not a surprising one. It is because the Treasury wants it, and the Treasury wants it, in the words of my noble and learned friend the Lord Chancellor, because it provides a means to assess whether value for money is being achieved. What goes into "value for money"? Where does justice feature in that concept? I fear it features very little.
The idea behind the Commons amendment is to establish that a state system is cheaper--that is what "value for money" in the Treasury approach means. If it is cheaper, what will happen? There will be no justification in that situation for the state criminal defence service existing alongside the private service. It will be the means of dealing with legal aid.
I referred to the "dismantling" of our system. Perhaps I may refer to the same process in regard to the Crown Prosecution Service. That is being imposed not out of a theoretical desire to give rights of audience to lawyers who are employed--there is no need for that; there is no demand--it is again to see whether it can be established that the employed lawyer, under the employed system, can provide better value for money, which merely means the Treasury concept of it being cheaper. If it is, there will not be any exception to the CPS doing all the prosecution work; and it is not only the CPS; it is also the government employed lawyers in their specialities; for example, Customs and Excise and the Revenue. The Treasury says it will be cheaper to employ them than to go outside.
I come now to the rights of audience where the position is the same. My noble and learned friend the Lord Chancellor was at pains to point out that, despite solicitors in private practice for the past five years having had the unfettered right to appear in all the High Courts so long as they pass the simple requirements of the Law Society, only 1 per cent of solicitors in private practice availed themselves of that advantage. We were
The listing system can be accommodated by the Bar, which can take the rough with the smooth, but with solicitors there was too much rough and too little smooth. The quantity of work available to them was too small. That is what the Lord Chancellor's own advisory committee discovered through two universities retained to do the research. That information does not feature anywhere except in a long article by Professor Zander. We would not have heard about it but for that article.
Why should matters change? They should do so for two reasons. First, it has been made somewhat easier for the city solicitor who does not appear in the county court or police court to be allowed to qualify for advocacy rights. Much more to the point, advocacy will be forced upon the reluctant solicitor. The block contracts that will be the manner of retaining solicitors will be from start to finish and include advocacy. Of course a solicitor can contract out of the advocacy if he is so minded but that would cost him money--and block contracts will be highly competitive. It will not be a satisfactory financial situation if the solicitor contracts out. He will therefore avail himself of the audience rights.
The rights of audience imposed that way will produce a cheaper system. Block contracts will turn out to be cheaper than a contract with solicitors to do their side of the work, with the engagement by solicitors of others in cases that the Bar now does in practice although it has no entitlement solely to do so. The rights of audience will be another dismantling of the profession designed to be cheaper.
Your Lordships may say that all that is a bit far fetched, but I remind the House of the aetiology of the conditional fee, which was introduced by my noble and learned friend Lord Mackay of Clashfern when he was Lord Chancellor. He did not introduce it other than on the basis that regulations would fill in the details of what the arrangement would cost and so on. He told us in Committee that in Scotland the conditional fee was operative but there was no mark-up or increased fee for taking the risk. He thought that a moderate increase of 5 per cent was all that would be necessary. On that prospectus, power was given to enable the conditional fee system to exist which had hitherto been looked upon as contrary to public policy--largely over the conflict it raised between solicitor and his client.
That prospectus was false because 5 per cent became 10 per cent. That was not good enough so 10 per cent became 20 per cent. That was not good enough so it was multiplied by five, contrary to the Lord Chancellor's own advisory committee, and turned into 100 per cent. The noble Lord, Lord Mishcon, with that shrewd insight for which he is well known--said, "You must not use the conditional fee to prejudice and cause delay. It must
What has happened with a change of government? It is not that the conditional fee has been to some extent modified but the conditional fee is essentially to do away with legal aid in all personal injury cases and others. That has been allowed by regulations or orders made by the Lord Chancellor--not by primary legislation--in the teeth of resistance by the Government to monitoring exactly what is happening. Risk evaluation was referred to by the one small investigation undertaken by a policy institute. Risk evaluation was rightly queried because in personal injury cases, it is common ground that the success rate is more than 90 per cent. The risk evaluation on the short test that was made showed that clients were being charged not 10 per cent or 20 per cent but close to 50 per cent. I wager that the majority of those cases did not come to trial, for the simple reason that they were observed at an early stage to be open and shut.
If the Government are prepared to use conditional fees in the manner that I have suggested, that is the clearest possible demonstration that, given the fascination with achieving something cost-effective, the evaluation is likely to be made without a proper introduction and assessment of justice. That is not what the Treasury is good at. For those reasons, in the words of the classicist, O tempora O mores.
Viscount Runciman of Doxford: My Lords, I rise to query one implication of what I understood the noble and learned Lord, Lord Ackner, to be saying. I have almost always found myself to be in agreement with him whenever I have heard his silver-tongued eloquence in the House on these matters in the past.
My concern is the implication, which I hope he may be willing to disavow, that the quest for value for money is inherently misconceived because it is merely a euphemism for a loss of quality for the sake of cheapness. Anybody who has looked in detail, from outside and inside, at the criminal justice system will agree that in some significant areas it is seriously underfunded but that others--not least criminal defendants--do not get value for money in that the interests of justice and could be equally well served at less cost. To the extent that that is so, and to the extent that the noble and learned Lord the Lord Chancellor believes that the Government are introducing measures which will reduce cost without impairing standards, it seems to me that that is something which, in principle, all Members of this House ought to be willing to support.
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