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Lord Mackay of Clashfern: My Lords, I believe that the noble and learned Lord is so carried away by his eloquence that he has somewhat exaggerated the position. The rights of audience for solicitors in private practice did not result in a stalemate. Although they did not come immediately there was no stalemate. We have been told that 700 people have rights of audience in that respect. I await anxiously to hear whether the standards to be applied to solicitors in the future will be greater or less than those standards.
Lord Falconer of Thoroton: My Lords, I am grateful to the noble and learned Lord for his intervention, and I stand corrected. He was right; I was being carried away rather by my eloquence. What I was meaning to refer to in relation to that was that there was an issue about employed lawyers and the extent to which they could appear in court. The position in relation to that was described at some length in an earlier Green Paper relating to rights of audience and the position was that the matter ping-ponged to and fro between the committee, ACLEC and the various professional bodies and the Lord Chancellor over a period of six years. In my respectful view it showed that the system did not work. It was an ineffective way of determining the extensions of rights of audience. That is a view that the Lord Chancellor took. It is not without significance that it is a view that the two designated judges who have spoken in this debate--namely, the noble and learned Lord, Lord Woolf, and the noble and learned Lord, Lord Bingham--have also taken.
As a matter of practicality I would respectfully suggest that the system is not working and needs to be changed. Why is it not working? Because there is in effect a stand-off--not an unpleasant stand-off but an inability to agree--between the Lord Chancellor on the one hand and the designated judges or ACLEC on the other. There therefore needs to be some form of change. The most sensible way to change it must be to give the Lord Chancellor the power to determine--
Lord Ackner: My Lords, I am grateful to the noble and learned Lord for giving way. There was no stand-off. What occurred in regard to employed lawyers was, first of all, a suggestion emanating in many ways from the then DPP that the use of audience by the CPS should be limited in quantity, and that went back to the Lord Chancellor and the designated judges, who pointed out that it was not the function of ACLEC to suggest amending the Act. It then came back to ACLEC for further consideration. There was a change in the constituent members of ACLEC, and that took some
Lord Ackner: My Lords, perhaps I may put it this way. Does the noble Lord and learned realise that in the 18 months before the final decision the papers remained in the office of the Lord Chancellor without anything being done, and I raised three Parliamentary Questions in the hope of getting a decision?
Lord Falconer of Thoroton: My Lords, I am grateful to the noble and learned Lord for describing the procedure over the period of time. I cannot comment on where the papers lay for 18 months, but, even if they did lie for 18 months in one place rather than another (which I do not know), that means that it took four-and-a-half years (ignoring the 18 months) to reach the compromise that he described, which in my respectful submission tends to make out the case that the system was not working as effectively as it might have done.
In my respectful submission, in order to make progress on this matter, we need to have a system which works effectively. The Lord Chief Justice said that in his view the most appropriate course was that there should not be formal power in one place but actual power in another. The most appropriate circumstance and the only real solution is ultimately to give the Lord Chancellor, after the professional societies have proposed changes in the rules, the limited power to alter it if he thinks those rules are too lax or too restrictive in relation to rights of audience.
There are two safeguards in relation to that. First, it must be approved by an affirmative resolution of both Houses of Parliament. Although the noble and learned Lord, Lord Ackner, may regard that as of no importance at all, it is plainly the way our parliamentary system works, for better or for worse.
Secondly, the Lord Chancellor can propose changes to the rules of professional societies only to meet the objectives of the Courts and Legal Services Act 1990. If it goes beyond that--for example, towards the South African fears or the autocratic fears which have been referred to in our debate--then there is the power of the judges judicially to review such an exercise of the power. Therefore, with the greatest respect, I believe the position to be not at all as it has been described by the noble and learned Lord in the course of the debate and that a sensible solution has been reached.
The second point put with an equal degree of vigour and venom was in relation to employed advocates. The most eloquent exposition of that was by the noble and learned Lord, Lord Hutchinson of Lullington.
Lord Falconer of Thoroton: My Lords, I apologise to the noble Lord. He basically put the proposition, supported by a number of other noble Lords, that one cannot have an employed advocate who is independent because he would owe duties to an employer as well as to the court. With the greatest respect, I do not accept that that is the position. As was pointed out, 97 per cent. of criminal cases in this country take place in the magistrates' courts. In the main, the prosecution is undertaken by members of the Crown Prosecution Service. Those cases are not only driving cases. They include important cases which may affect people's reputation and may lead to them going to prison. There is no suggestion that members of the Crown Prosecution Service are not able to deliver the standards of propriety as well as the standard of independence which would be required from an advocate.
I do not believe that it could be suggested for one moment that Dame Barbara Mills or Mr. David Calvert-Smith, the last two Directors of Public Prosecution, lost their ability to be independent from the moment they came to be employed by the Crown Prosecution Service. Equally, I do not believe that the position of, for example, Treasury counsel at the Old Bailey, who are plainly independent and plainly act in the best traditions of the Bar in relation to independence, could be said to have lost their independence because their sole financing comes from one source.
Lord Hutchinson of Lullington: My Lords, that is completely wrong. Treasury counsel are entitled to take on defence work, if they wish to, and to do other work, if they wish to. Therefore, it is not their sole source of income.
Lord Falconer of Thoroton: My Lords, the noble Lord is right to say that they are entitled to be that, but as a matter of practice they rarely do more than one other case a year, apart from the cases which they present at the Old Bailey. Nobody would suggest for one moment that the fact that they receive all their instructions from one source in any way undermines their independence.
The Attorney-General is an employed member of the Government, as is the Solicitor-General. Nobody for one moment would suggest that thereby they lose their independence. I do not accept the proposition that employment undermines one's independence. History shows us that one can be independent and fulfil the best traditions of the Bar, even though one may be employed.
Lord Falconer of Thoroton: My Lords, I would not regard the CPS in the magistrates' court as at the top of the tree. I do not regard its independence to be in any way defective as a result of the fact that its members are employed. There are significant numbers of chambers in this country in which senior members of the Bar undertake only prosecution work. I do not regard them as in any way having their independence compromised by that. With respect, the fear is exaggerated. From my experience of the Crown Prosecution Service when I was Solicitor-General, I can say that its standards of propriety and independence were extremely high.
As regards public defenders, the Bill proposes that the criminal element of the legal services commission will be able to employ directly people who in certain circumstances would be able to act as defence advocates for people in court. It is not intended that that circumstance should apply to the great majority of cases. It will more likely be filling gaps and, for example, providing defence services in the magistrates' court. I do not believe for one moment that that would lead to a compromise of justice. Nor do I believe that it would lead to "more negotiated" justice. We know from experience that defence and prosecution counsel are often in the same chambers. No one for one moment regards that as an indication that justice is compromised. Again, I believe that fear to be exaggerated.
It was suggested that there was a danger in exclusive contracting. It was put most eloquently by the noble Lord, Lord Phillips of Sudbury, that exclusive contracting meant the new arrangement involved one firm of solicitors for each geographical area. Perhaps I may make it absolutely clear that that is not what was intended. Exclusive contracting means that the only people from whom one can obtain legally-aided services are those who have an "exclusive" contract. But it is not exclusive in the sense of being one for each area. It means that the base for legal aid practitioners will be exclusively those who have a contract. We should have made that clearer at an earlier stage, but it meets the essential point which the noble Lord, Lord Phillips of Sudbury, was making, backed up by the noble Lord, Lord Hunt of the Wirral. I hope that I can reassure the noble Lord that it is not the intention that there should be only one firm of solicitors in the area. What is intended is that in so far as it is possible there should be a choice in as many areas as possible throughout the country.
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