Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Clinton-Davis: Again, I cannot agree with the noble Lords, Lord Kingsland and Lord Goodhart, because the amendments would drive a coach and horses through the whole purpose of the argument adduced by my noble and learned friend the Lord Chancellor. Everybody could be regarded as a specialist in almost every case.

There are specialists in criminal law, contractual law, landlord and tenant law and so on. Where does it end? It is all part and parcel of the work of the legal profession to take on certain "specialisms". I do not believe that the case has been made that such is the right way to proceed in achieving the priorities that those who are critical of the Bill also want.

Speaking as someone who has been critical of the Bill, but constructively, I hope, I find it difficult, in a sense psychologically, to dissent from those who have supported some of my arguments and whose arguments I have supported. I hope that they will understand.

The Lord Chancellor: The noble Lord, Lord Kingsland, moved Amendment No. 66 and I seek to speak to the grouping that contains that amendment together with Amendments Nos. 93, 121, 144, 161, 168, 169, 185 and 191.

Two of those amendments are typical. Amendment No. 66 would provide that,


Amendment No. 185 would provide that,


    "Where, in an individual case funded as part of the Criminal Defence Service, advice and assistance or advocacy are provided by a person offering specialist legal services on a referral basis, regulations shall require that person's remuneration to be quantified and paid separately from other items in the case".

Amendment No. 93 requires that,


    "The Commission shall keep under review whether, in relation to each category of case for which it funds services as part of the Community Legal Service, the interests of justice require particular kinds of services to be provided by way of ... specialist advocacy".

The broad intent of these amendments, as I understand them, is, first, to require the commission to keep under review where the interests of justice require particular kinds of advice or assistance to be provided by specialists, particularly the Bar in cases of representation, but not of

19 Jan 1999 : Column 543

course excluding solicitors in their specialist roles; and, secondly, to ensure that persons being remunerated for provision of these specialist services should be paid for them discretely and basically not as a disbursement on the bill of the solicitor with whom the commission will have contracted.

I deal with the second first. Under Clause 7(3)(a) the commission has a general power to make contracts with persons or bodies for the provision of services by them. In relation to solicitors, what is contemplated is that contracting will be up and running with individual firms from around January 2000. Solicitors' firms employ many lawyers and the commission can contract with them for the provision of volume services.

Clause 7(3)(a) does enable the commission to contract with the Bar. I have long thought and said--and the Bar knows well that this is my view--that it should embrace the opportunities of contracting and be ready to contract for the provision of advocacy services, either as individual sets of chambers or through particular groupings of barristers, so that it, equally with solicitors, can offer volume services. If it were to contract in that way it would be at prices determined by the contract and the Bar would be free of the risk of payment for its services via disbursements and solicitors' bills when solicitors would be the only contracting party with the commission. The vulnerability of the Bar is obvious and that is what is in the mind of the author of this amendment. The solicitor has the contract and what the barrister gets for the provision of his specialist services out of the solicitors' contract price is what the solicitor agrees to pay him. Of course the Bar should contract direct. That is what I have been saying for ages. But the Bar has its salvation in its own hands. We are ready to contract with it. The powers are there, so let the Bar get on with it.

I can tell the Committee that discussions have taken place between my officials and the Bar on this subject. I have discussed it with the leaders of the Bar myself. I cannot understate how enthusiastic I am for the Bar to define a clear basis on which we can contract with it direct for the provision of volume advocacy services at contractually agreed prices.

I turn to the need for the commission to keep under review when the interest of justice requires the service of specialists. All these amendments, I believe, stem from an irrational fear on the part of the Bar, or perhaps more accurately, some prophets of doom in its midst, that barristers, specialist advocates, are about to become an extinct species as a result of the changes. Nothing could be further from the truth. Advocacy is a specialist art and that is well recognised. I make it unequivocally plain that the word "help" in the statute means and includes "representation". Under Clause 4(2) the Lord Chancellor may give guidance to the commission about the discharge of its function and the commission is under a duty to take that guidance into account. I am ready here and now to undertake that, pursuant to that power, I will give guidance to the commission that it should keep under review, in the interests of those to

19 Jan 1999 : Column 544

whom it provides, the availability of specialist advocacy where appropriate. On that, I hope, clear basis I invite the noble Lord to withdraw his amendment.

Lord Kingsland: I thank the noble and learned Lord the Lord Chancellor for the frank way in which he responded to my amendment and--perhaps I can speak on behalf of the noble Lord--for the way in which he responded to the noble Lord, Lord Goodhart. However, I do not think that the noble and learned Lord has completely met the point contained in the amendments. The point is that there are circumstances, when a legal problem arises, that require the advice of a specialist. These amendments seek to ensure that when funds are supplied, whether to a solicitor or a barrister, to solve a particular individual's problem, and where a specialist as well as a generalist is involved in the case, payment of both parties is made separately. Otherwise, there will be a temptation for the service provider to short-change the recipient. That will adversely affect the interests of justice.

That is the point behind the amendments. They are not concerned with the distinction between the Bar and solicitors, but the distinction between a generalist and a specialist. The amendments seek to guarantee that that distinction is marked out in the Bill in such a way that an individual whose case merits specialist advice properly receives such advice. If the noble and learned Lord has nothing further to say, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 67 I must inform the Committee that if this amendment is agreed I cannot call Amendments Nos. 68 and 69.

Lord Phillips of Sudbury moved Amendment No. 67:


Page 4, line 25, leave out subsection (5).

The noble Lord said: Amendment No. 67 seeks to exclude subsection (5) of Clause 6. Effectively, that leaves Amendment No. 77 to be considered in its place. Amendments Nos. 68 and 69 are tabled in the event that Amendment No. 67 is rejected. Those amendments seek to improve Clause 6(5) by inserting reference to "good quality services" and services "consistent with the interests of justice" alongside the sole determinant at the moment under subsection (5), which is "best possible value for money". One may think that that is a somewhat extreme phrase against matters such as the interests of justice and the like. I beg to move.

Lord Kingsland: Perhaps I may speak to Amendment No. 68, which refers to subsection (5). The amendment takes a slightly different position from the one spoken to by the noble Lord, Lord Phillips of

19 Jan 1999 : Column 545

Sudbury. Here the amendment will have the effect that the subsection would read:


    "In funding services as part of the Community Legal Services the Commission shall aim to obtain the best possible value for money consistent with the interests of justice and good quality services".

The Lord Chancellor: The noble Lords have spoken to Amendments Nos. 67 and 68. Included in that group are Amendments Nos. 69, 187, 188, 189 and 190, to which I shall speak.

Those amendments refer to the duty of the commission to obtain the best value for money. The noble Lords, Lord Phillips and Lord Goodhart, in the amendments standing in their names, suggest in relation to both the community legal service and the criminal defence service that the duty should be qualified by referring also to the need for consistency in the interests of justice.

If Members of the Committee had been taken through the amendments, they would have seen that the noble Lords had second thoughts about the community legal service and suggested abolishing Clause 6(5) from the area of value for money altogether. There is an amendment in the name of the noble and learned Lord, Lord Ackner, in relation to the criminal defence service proposing that the interests of justice should be paramount.

Let me make it clear that value for money is the best combination of price and quality. The principal mechanisms for achieving this aim will be contracting for services and the development of quality accreditation schemes for service providers. I do not believe that seeking value for money conflicts with the interests of justice; indeed, on the contrary, the quality of justice can only be improved if the quality of providers improves. Further, if contracting does in due course lead to less expensive services and greater efficiency, that will release resources that can be deployed in improving access to justice.

Therefore, I believe that the duty for the commission to achieve the best value for money is a fundamental aspect of our reforms. I would not begin to accept that it should be omitted from the Bill, nor do I think that it is necessary to suggest that quality is somehow separate from value for money, as is implicit in the amendments to Clause 6 tabled in the names of the noble Lords, Lord Kingsland and Lord Phillips.

The amendment to Clause 17 would also oblige the legal services commission to provide the greatest possible choice of legal services in criminal matters. My view of the amendment to Clause 14 concerning the restriction of choice in certain circumstances is just the same as the view that I am now seeking to express to Members of the Committee on these proposals.

I do, however, understand the concerns that lie beneath the amendments. It is that, somehow, a duty to obtain value for money simply leads to cost cutting and so will reduce the quality of justice. If I may say so, that seems to me to be the point that noble Lords are seeking to make. Therefore, I am prepared to consider including a reference to the purpose of the community legal service and the criminal defence service in each of the

19 Jan 1999 : Column 546

clauses on value for money. I refer respectively to Clause 6(5) and Clause 17(3). So, on the basis that I will consider the matter in that context, I invite noble Lords to withdraw the amendment.


Next Section Back to Table of Contents Lords Hansard Home Page