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Lord Ackner moved Amendment No. 151:

Page 8, line 44, leave out ("it considers appropriate") and insert ("are necessary in the interests of justice").

The noble and learned Lord said: There have been many references to value for money. Although it will be said that what I am proposing can be implied, I believe it is desirable that it should be stressed by removing the words, "it considers appropriate" and inserting,

As presently drafted, Clauses 12 to 21 dealing with the criminal defence service contain no specific reference to the requirement of justice. The amendment would allay fears as to the possibility that the essential aim of this part of the Bill is a cost-saving approach and would therefore stress that justice must always be the paramount consideration. I beg to move.

Lord Windlesham: As the noble and learned Lord has explained, this amendment would remove the power of the legal services commission to decide what advice and assistance it considered to be appropriate. To decide what is appropriate is a wide discretion. It would be replaced by an "interest of justice" test. If it is suggested that the phrase, "the interests of justice", is too vague and ill-defined, we should recall that Article 6.3 of the European Convention on Human Rights relates to the right of the defendant to defend himself in person, or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. That article is a right that has been "brought home"--as a result of recent legislation it now forms part of our domestic law. It already includes an interest of justice test which, if necessary, will need to be argued before the courts. So "the interests of justice" is a phrase with a legal meaning. If there is any doubt about that, it will shortly be resolved as a result of the incorporation of the European Convention on Human Rights.

Lord Campbell of Alloway: I strongly support the amendment. "Necessary in the interests of justice" is the only manner in which it would be possible to consider

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what is done as appropriate. So why not say so? If the rectitude of the act is called into question, if the matter is left as it stands the answer is: why was it not appropriate? That leads to a circular argument. However, if the act is done and is said to be done as "necessary in the interests of justice", that is a far more precise and enforceable requirement.

4.15 p.m.

The Lord Chancellor: I am ready to accept the spirit of this amendment, which would place on the face of the Bill a clear statement that the commission is to provide advice and assistance in criminal cases where that is necessary in the interests of justice.

As I have already said, it is my intention to move an amendment to the Bill setting out more clearly that the purpose of the criminal defence service is to provide advice, assistance and representation where that is required in the interest of justice. That was the intention of the Bill as drafted which at Clause 13(1)(a) places on the face of legal aid legislation for the first time the entitlement of an individual arrested by the police to advice and assistance. The words, "it considers appropriate", in Clause 13(1) were not intended to restrict this entitlement, but to leave to the commission the form and nature of assistance to be made available.

I am receptive to the idea that it would be appropriate to set those decisions in the context of the interest of justice. If he is content, I shall ensure that the noble and learned Lord sees in advance a draft of the amendment that the Government propose to bring forward. On that basis, I ask the noble and learned Lord to withdraw his amendment.

Lord Ackner: I do not know what the procedure is if one wishes to apply for entry in the Guiness Book of Records. With, as always, the co-operation of my noble and learned friend, I have certainly achieved a hat-trick. On that basis, I ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Ackner had given notice of his intention to move Amendment No. 152:

Page 9, line 5, leave out ("or bodies").

The noble and learned Lord said: Merely to show my gratitude, I shall not seek to move this amendment.

[Amendments Nos. 152 and 153 not moved.]

Lord Goodhart moved Amendment No. 154:

Page 9, line 13, leave out ("or loans").

The noble Lord said: This is a brief and purely probing point. I am concerned to know why the Government propose to include the power to make loans to individuals to enable them to obtain advice or assistance. In what circumstances will loans rather than grants be provided? Is there to be a means test to decide whether a loan rather than a grant is appropriate? If so, does that not undermine the Government's welcome objective of, by and large, getting rid of the means test in providing criminal legal aid?

The Lord Chancellor: The noble Lord, Lord Goodhart, makes a good point. I am grateful to him for

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drawing my attention to what, on reflection, I regard as an anomaly. In the drafting of the Bill, some elements are common to both the community legal service and the criminal defence service. An identical range of powers, including loans, is contained in the civil context.

In criminal matters, the provision of loans to individuals as one of a range of payment methods for advice and assistance is, I agree, not appropriate. Indeed, no payment is required for advice and assistance in criminal investigations or proceedings. Clause 16(2) makes it clear that it is only in limited circumstances in respect of representation that an individual for whom services are funded by the commission might be required to make any payment. I am therefore content to accept the amendment.

Lord Campbell of Alloway: I refer to the earlier subsection (2)(c), which must run with Amendment No. 154. The phrase "grants or loans" is used in subsection (2)(c) and also in subsection (2)(e). I merely point out that there seems to me to be a need for a consequential amendment.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I must point out that if Amendment No. 155 is agreed to, I shall be unable to call Amendments Nos. 156, 157 and 158, owing to pre-emption.

Lord Archer of Sandwell moved Amendment No. 155:

Page 9, leave out lines 15 to 17.

The noble and learned Lord said: With this amendment it may be for the Committee's convenience if we discuss Amendments Nos. 156 to 158 and 163 to 166.

Having achieved such an accommodating atmosphere, I regret that I am not making greater demands upon my noble and learned friend, but these are probing amendments. Whether they might be discussed in more detail at a later stage depends on what the probe reveals.

Amendment No. 155 deals with the method by which it is intended that the commission shall carry out its duties. We are debating its nature and functions. The amendment is there, granted that the purpose is to fund advice and assistance in criminal cases, to say how it is proposed by my noble and learned friend that that might be done. The idea is welcome, as is the provision to pay people and make contracts in order to provide those services.

These amendments seek to explore the means which would enable the commission to provide those services. I appreciate that the service must operate through salaried employees. I see no objection to those employees, if they are shown to be competent, providing advice in suitable circumstances. It is clear, from the earlier debates today, that that is what is envisaged.

But there may be some dangers which we may need to consider and possibly address, although to some extent they may have been addressed by the concessions

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which my noble and learned friend made earlier in response to the amendments by the noble and learned Lord, Lord Ackner.

First, in any locality the personnel of the criminal defence service and that of the Crown Prosecution Service are likely to be closely acquainted. They are likely perhaps to develop almost a collegiate relationship. There would be a common interest in the disposal of any case which would spare everyone time and trouble. The most conscientious of advisers may be at risk of allowing that to colour the advice which he gives.

We have heard much discussion of defence systems in the United States, mentioned earlier this afternoon by the noble Lord, Lord Windlesham. The Committee may remember that in 1980 Professors McConville and Mirsky produced a report on the system as it then operated in New York. It is fair to say that that was before the code to which the noble Lord, Lord Windlesham, referred. It lists the dangers which might exist. What the two professors said was:

    "Indigent criminal defendants in state criminal cases in New York City receive ineffective assistance from lawyers who, for largely systemic reasons, fail to provide competent adversarial representation. Those lawyers cannot fulfil their responsibility to their clients because those in control of indigent defense want low-cost, efficient processing of criminal defendants through guilty pleas and other non-trial dispositions. To achieve the efficient processing of defendants (and to legitimate a system that fails constitutional and statutory mandates to provide effective assistance of counsel), defense providers ally themselves with courts, prosecutors, local government and the organized bar rather than with indigent defendants".
How far that has changed since 1980 I am in no position to tell the Committee, but that those are possible dangers inherent in the system seems to be clear. Certainly that report was the subject of much criticism and controversy and I would not seek to impose on the Committee a review of the arguments on the two sides of the dispute. I am grateful to the Legal Action Group for having collected them. They are available if Members of the Committee wish to have them. I say only that at the lowest it is a possible danger to be addressed.

But it was a more specific concern which impelled me to set down Amendment No. 163 because it is addressed to a more specific question: not the giving of advice but the right of audience. It is not clear from the Bill--although I hope that my noble and learned friend will tell us whether it is envisaged--that salaried employees of the service will appear in the criminal courts to represent defendants. If so, perhaps he might tell us at what level and in what courts and in what kinds of cases that is envisaged.

If so, there are four possible dangers. First, someone who works for a salary and whose career prospects depend upon promotion within the organisation may not appear to the client to be (indeed he may not be) independent of a service which, however fair it seeks to be, has an interest in shortening cases and clearing lists. In any event, the qualities which make for promotion within an organisation are not necessarily those which mark the successful forensic lawyer, prepared to be critical of the Government or of services like the police.

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Secondly, the priority given to a particular case may turn on the workload--mentioned earlier, I believe, by the noble Lord, Lord Windlesham--and the resources then available to the organisation.

Thirdly, the salaried lawyers would gain their experience, unless they came into the service after service elsewhere, in a very restricted field, appearing in criminal cases in a particular locality and always for the defence. It may be replied that there are already members of the practising profession in that situation. If so, it is regrettable. But that would hardly justify extending the problem.

The fourth danger is probably the most fundamental. At present a defendant in a criminal case has a measure of choice as to which solicitor and counsel he employs. The question arises: would he have a similar choice if the only provision available to him is through a local salaried service? Alternatively, would he be assigned a representative, possibly the particular employee of the criminal defence service who is attending that court on that day? Certainly defendants are not always consulted now as to who, from their firm of solicitors, or which counsel, shall represent them. But if they have cause for complaint, they can now choose a different firm of solicitors next time. When the only public funding available to them is for representation through the criminal defence service, that will no longer be the case.

I am aware that a case can be made on the other side of the proposition. I do not propose to predict it, but it will be made by my noble and learned friend. I have no doubt that the question has been carefully considered and researched--at least I hope so. For the moment I await the outcome of that consideration and research and details of the method of operation. I beg to move.

4.30 p.m.

Lord Thomas of Gresford: In speaking to Amendment No. 156 which is grouped with Amendment No. 155 I find it necessary to go further than the noble and learned Lord, Lord Archer of Sandwell, in that I object in principle to salaried employees giving advice to defendants or representing them in court. It is perhaps rather trite to say that it is in the interests of the state that guilty people are convicted of criminal offences. That is perfectly laudable provided that those who are convicted have committed the relevant criminal offences. Every miscarriage of justice causes the criminal justice system to fall into disrepute.

Even one case of injustice has a disproportionate effect on public confidence in the system. Public co-operation is weakened, witnesses are less willing to come forward and juries are less willing to convict, quite apart from the effect of an unjust conviction upon the life and family of the convicted individual. Hence, we have the very correct principle that a person who is accused of crime should be properly defended; that there should be equality of arms; that whereas on the one hand a prosecutor backed by the CPS and the police investigation should carry out his duties with skill and integrity, on the other a defender for whom the state provides the necessary resources to defend the accused should have the same quality, integrity and ability as the person who prosecutes.

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Obviously, the resources provided to defenders must be spent wisely and well and they must account for their use. As a matter of principle, however, when the Government are the opposing party--the prosecutor--they should not be able to control in any way the nature or quality of the defence, nor the extent to which the defender can properly prepare his case. If a public defender system competes for funds it may be able to offer only minimal salaries and the quality of defending advocates will suffer; or it may be that the number of advocates employed will be low in order to keep down costs, in which case each defender will carry an overwhelming caseload with the consequence that he will not be able to give adequate time and attention to the investigation and preparation of his case. I do not believe it is generally realised that defence counsel do not simply appear in court and speak but that, together with their instructing solicitors, they must do a great amount of preparatory work and investigation before that stage is reached.

I believe it is essential that the defender is independent of the Government--the prosecutor--although accountable for the efficient use of his time and the state's money. There is also the problem of unpopular causes. I have experience of what can be done in Hong Kong, where a state prosecutor in the shape of the Attorney-General's chambers is matched by an entirely independent legal aid board which on occasions has to my knowledge resisted both public and government pressure on behalf of unpopular defendants; for example, illegal immigrants, Vietnamese boatpeople and, in one important case, Filipina maids. That independence must be preserved. As I said earlier this afternoon, the criminal defence service as envisaged in the Bill is a step nearer to government control. It affects the independence of the defender in the ways that I have already outlined.

There are also practical considerations. I believe it to be undesirable to have sheep and goats in the criminal justice system. It is not right that there should be those who make a career of prosecuting and those who make a career of defending. I say that based largely on provincial experience where the tradition is that counsel engaged in criminal cases prosecute and defend and have experience of both sides. I believe that to be a preferable system to that which tends to operate in London where some people specialise in prosecuting or defending. It is noticeable that Treasury counsel at the Old Bailey normally take silk and defend before they are considered for judicial appointment. One problem that arises from a division of the criminal Bar into defenders and prosecutors is that if one does not have experience of the other side one's approach to the task can be unbalanced.

The noble and learned Lord, Lord Archer, and others have referred to the collegiate common interest that may grow up between the Crown Prosecution Service and a defender service in disposing of cases. Anecdotal evidence from Australia is certainly to the effect that plea bargaining is a curse of the criminal system. On the one hand, over-charging by the prosecution and, on the other, a deal done behind closed doors, sometimes with

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or without the assent of the judge, results in a lack of that independent advice that is so much the mark of the English system.

Another problem that is likely to arise relates to investigation on behalf of the defence. The Crown Prosecution Service has the police behind it. When the CPS presents its case it has all of those resources available to it. One wonders whether a criminal defence service with employed defenders will be able to turn behind it, as it were, to ask for investigations to be made, statements to be obtained, witnesses, to be brought to court and so on. Yesterday I completed a case in which the defence called six witnesses, every one of whom had to be interviewed at considerable length in order to obtain statements. One wonders whether the time and resources would be available in a state defender service for such detailed investigation to take place.

There is also the problem of the defendant falling out with the person who is assigned to defend him. What happens? It happens frequently in our courts that a defendant loses confidence in the person who represents him. With the assent of the court the defendant can obtain representation from another counsel. I believe that a public defender service will make that very difficult. I am forced to the view that the independent Bar chosen and instructed by solicitors who are aware of the abilities of the particular barrister, and monitored as to quality by the criminal defence service, which is all part of this Bill, is still the way to proceed. There is nothing to supplant the independent Bar.

I was very much assisted by reading the speech of the Chief Justice of Australia, the Hon. Sir Gerard Brennan, to the Australian Bar Association conference in San Francisco in August 1996. He said this:

    "An absent and independent Bar--how would the voice of the oppressed by heard? Where would one find an effective champion of an unpopular cause? How would the courts be able to function without the distillation of issues by skilled and independent minds; and how would any tendency to judicial tyranny be restrained? The point was well made by Chief Justice McKeekan of British Colombia who said, 'I believe an independent Bar and an independent judiciary are sentries posted by the constitution to guard our people of their danger. A reborn Erskine would remind us that our greatest threat is not from insurrection but rather from earnest, misguided, well intentioned philosophies that suggest that some combination of Jeffersonian democracy and Harvard business school efficiency could organise the legal system better if troublesome judges and lawyers would just get out of the way'".
I feel that that is a spirit which informs some of the proposals here.

When talking about the Australian Bar, which faced similar issues to those we face in this Chamber, the learned Chief Justice said this:

    "An Australian Bar will not be created, I hope, merely as a supplier of services in what some economic regulators choose to call the national legal services market. The Bar has far more extensive duties to perform than the provision of services to the so-called consumers. If the Bar were to see itself simply as such a supplier, our national court system would have to be reconstructed with features and safeguards that are presently unnecessary. The survival of the Bar as a separate and independent institution may make little sense to an economist who does not appreciate its social utility and does not foresee the consequences of its destruction. But the possibility that the Bar will not survive is minimal provided the Bar has a sufficient conceit of its function in the maintenance of

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    a free democracy and to that end retains its competence and its independence. It must reject the notion that it is concerned with the marketing of expertise rather than with the use of skill and knowledge in the service of the client and the community".
Those are wise words which were spoken recently by the Chief Justice of Australia; and they apply to this situation. I am opposed to a public defender's service which employs barristers or solicitors to defend.

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