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Lord Lloyd of Berwick: My Lords, I am grateful to all noble Lords who have taken part in the debate, which has now lasted two and a half hours. I am not surprised to find that those who have spent their lives in the intelligence world have spoken against the Bill with such conviction and even passion—that is what I expected. However, I think I am right in saying that only the noble Baroness, Lady Ramsay, and possibly the Minister, have spoken against this matter being referred to a Select Committee. That is all I am asking. The importance of the matter is not in doubt, and the importance of it being investigated, if possible, by Parliament has been stressed and stressed well by the noble Lords, Lord Brennan and Lord Judd, and the noble and learned Lord, Lord Lyell.

Lord Robertson of Port Ellen: My Lords, I should make it absolutely clear, since perhaps it was not clear from my speech, that I also oppose the matter being referred to a Select Committee. My noble friend Lady Taylor also made it clear in her speech that she opposed it, so silence should not necessarily be taken as consent.

Lord Lloyd of Berwick: My Lords, I am grateful; I had forgotten that the noble Lord, Lord Robertson, spoke against the Select Committee. I was coming to the noble Baroness, Lady Taylor. I understood her to
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say that she was not against the investigation of this matter by a Select Committee, but she suggested that a more appropriate committee would be the one of which she has been a member, namely the Intelligence and Security Committee.

Baroness Taylor of Bolton: My Lords, I am grateful to the noble Lord for giving way. It would be duplication and in effect a waste of time to have a Select Committee when the Intelligence and Security Committee already has members who have some experience of this matter. It operates within the ring of secrecy and therefore could take evidence. The ISC is the body to which we as parliamentarians should look, because it is a statutory body of parliamentarians charged specifically with oversight of the agencies.

Lord Lloyd of Berwick: My Lords, I fully understand that, and the committee is in charge of the agencies, but the problem is that perhaps its members are not as familiar as they might be with the realm of the criminal justice system. The point about having a Select Committee of this House is that it would be able to combine the expertise of those in the intelligence world, the police world and the criminal justice world. That is why I suggest that it is the way ahead.

The noble Lord, Lord Robertson, accepted that there was what he called a "superficial" attraction in the Bill because it would enable some serious criminals to be convicted. I agree that it would do that, and that is now common ground, but I cannot regard that as a "superficial" matter. Even if one terrorist could be charged and convicted before he had committed his terrorist act, thereby saving lives, surely that would be worth doing. We could do that if intercept evidence were admissible because there is seldom any other evidence which would enable him to be charged before he acted.

Of course we must be careful to protect the sophisticated techniques about which we all know, and, above all, we must be careful to protect human lives, as the noble Baroness, Lady Park, stressed. But there are ways in which that could be done and I believe that those ways should be investigated by a Select Committee, which is the purpose of the Bill.

As for the suggestion that such legislation is a waste of time because in two years' time everything will have changed, I hardly regard that as a suitable reason for not investigating the matter now. With that, I leave the matter to your Lordships.

On Question, Bill read a second time.

Criminal Defence Service (Funding) (Amendment) Order 2005

1.36 pm

Lord Goodhart rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 21 September, be annulled (S.I. 2005/2621) [9th Report from the Merits Committee].
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The noble Lord said: My Lords, it is clear from the response to the Question asked by the noble Lord, Lord Clinton-Davis, on Wednesday that the protection of the earnings of lawyers is not exactly a popular cause, particularly perhaps on the government Benches. However, in moving this Motion, we are not making what I might describe as a trade union case for the benefit of lawyers; we do not see fees as a sacrosanct issue. We accept that the very high cost cases—or VHCCs—are out of control and we agree that it is wholly unacceptable that 1 per cent of cases accounts for 50 per cent of the cost of criminal legal aid.

We do not object to across-the-board cuts in fees paid to Queen's Counsel, and we have made it clear that we would oppose legislation, which was at one time proposed, to give judges a specific exemption from pension boards. But we are concerned about cuts in fees to the less affluent, and in particular young, lawyers. I am very pleased to see that the noble and learned Lord the Lord Chancellor is here to speak for the Government on this issue and that he has not left it to anyone of lower status.

The Government made it clear in their Explanatory Memorandum attached to the order that the problem arises from the fact that the DCA is in the course of overspending its funds on criminal legal aid by about £130 million and that it is being forced to find savings. It is also clear that the overspend is due not to the rapacity of defence lawyers but to a number of causes. Those include the increase in the number of possible offences as a result of legislation over the past few years—for example, the annual criminal justice Acts and the annual immigration and asylum Acts; the increased cost of cases as a result of new rules which increase the amount of work, such as the need to argue whether hearsay evidence is admissible; the need to argue whether a previous record should be put in evidence; and the increased requirement of disclosure of documents.

Most fee rates have in fact been frozen for the past eight years, resulting, on the basis of computations made by the General Council of the Bar, in a reduction in fees over that period in real terms of no less than 24 per cent before we take into account the further cuts. Lawyers now find that their fees are being cut by an additional £28 million a year. The Government regarded dealing with that shortfall as so urgent that the order was brought into force on 3 October, when under the normal rules it should not have been brought into force until 12 October.

In answering the question put by the noble Lord, Lord Clinton-Davis, the noble and learned Lord, in his initial answer, referred only to the intent to reduce the costs of the VHCCs. That is, of course, not the whole truth. The order reduces the fees payable in VHCCs, but it goes far beyond that. In particular, it cuts fees in graduated fee cases—that is the medium-length criminal trials—as well. I do not propose to go into the details of the order, which is exceedingly technical and very detailed, but it is clear what has happened. The fees for some cases have not been altered—for example, the fees for junior counsel in trials lasting up
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to 10 days—but some have been altered very substantially. That is so for barristers dealing with cases that last from 11 to 40 days which are the graduated fee cases.

Considering the cases where no QC is instructed—cases that are most likely to involve younger barristers—according to tables produced by the General Council of the Bar, for some 25-day cases, for example, fees may be reduced by as much as 50 per cent; for 26 to 40-day cases the daily fees are reduced depending on the type of case by amounts ranging from £280 to £400 per day. Those are massive cuts. The figures before the cuts were made—let us say £20,000 for a 25-day, five-week trial—look, at first glance, high, but the graduated fund cases involve a great deal of preliminary work, paid at a lower rate or not paid at all. Barristers' fees are not all income; some 20 to 25 per cent goes on rent, travel and other expenses; and barristers do not step from one 25-day case to another. On many days, they are not in court at all or they deal with shorter and less well paid matters.

Young lawyers are, of course, paying off debts incurred such as university tuition fees and fees for vocational training. Notoriously, the first few years in practice are, as they always have been, very difficult for many. I doubt whether young lawyers, dependent on criminal legal aid, are doing nearly as well as young general practitioners. The cuts have led to such discontent that in October there was even a tentative attempt at a strike which fizzled out. A barristers' strike is not something that we on these Benches would encourage or glorify, but it is not surprising that there was great disquiet. Most members of the criminal Bar are, in effect, public servants. What other public servants would have had large cuts imposed on them after eight years of a pay freeze and, if such cuts were made, what would be their reaction? I believe that there is a real danger that able young law students will avoid criminal work altogether and if they go into it, they will leave for better paid sections of the legal profession or will leave the profession altogether.

About three weeks ago, Vera Baird, a Queen's Counsel and a Member of the House of Commons, and someone for whom I have a very high regard indeed, made a very powerful speech in a Westminster Hall debate which she introduced on the subject of criminal legal aid. Some of the points that I have already made were borrowed from her speech. As she said in that debate, she comes from a modest background, and she is concerned to ensure that the Bar, which was her branch of the profession, will continue to be open to people such as her. The cuts will make it more difficult for young lawyers with no money behind them to survive. The Government should listen. Some people say that defence lawyers are there in order to get guilty people off. That is, of course, not true. They are there to ensure that people charged with crimes get a fair trial. That is the principle that lies at the heart of the legal system. These cuts threaten that principle, if not today, plainly in the longer term.
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As I told the Government some time ago, it is not my intention to press the Motion to annul the order. It is only in very special cases that your Lordships' House should annul an order, and I do not see this case as falling within that band. But I instigated this debate because this order is damaging. It raises important issues that should not pass without debate. I hope that when, in due course, the Government receive the Carter report, they will reconsider the cuts in fees and will find other, less damaging, ways in which to recoup their overspend.

Moved, That an humble Address be presented to Her Majesty praying that the Order laid before the House on 21 September be annulled (S.I. 2005/2621) [9th Report from the Merits Committee].—(Lord Goodhart.)

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