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Lord Thomas of Gresford: Does not the noble Lord agree that the Bar is the most competitive of professions and that as the complexity of the case increases and its importance increases, so only the competent barrister of the independent Bar is instructed? Does he not agree also that in a criminal defence service with employed barristers, the risk is that people who are not up to the job will appoint themselves to defend and find themselves at a distinct disadvantage against a strong prosecutor?

Lord Bach: Perhaps I may say in reply that at present the competition which of course exists at the Bar, as it does in other professions--and sometimes we lawyers tend to forget that--is not such that if you are not really first rate you will not obtain good work. It does not happen like that. It very much depends on what chambers you are in and on the returns system, about which I intend to say more in a few moments. To think that somehow pure competition runs through the barristers' profession is to hide one's face from what actually happens.

Of course, at the very top of the profession, from which the noble Lord speaks, competition is ruthless and the very best get to the very top. It is not always so lower down.

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I wish to turn to the returns system because the point has been made by the noble Lord, Lord Thomas of Gresford, that commonly, there is a relationship between the solicitor and the chosen counsel in a defence case which means that the two of them undertake a great deal of research together before the matter comes to trial.

That may be so in cases of the utmost seriousness. It may be so in cases which will take a long time to try. It does not happen as a matter of course in the ordinary Crown Court case because the barrister may well receive the brief at the very last minute, so there is no question of the barrister and the solicitor together carrying out the research to which the noble Lord referred. There is also the prospect of returns, which happens a great deal and sometimes at extremely short notice. I am referring to every-day, bread-and-butter Crown Court trials. To pretend that there is some kind of mystical relationship between solicitor and barrister in regard to criminal cases which does not exist elsewhere is, in the majority of cases, wrong.

There was also talk about collegiate undertaking and understanding which would occur between a Crown prosecutor and a summary defender, as though that is something that is completely unheard of in our present arrangements. Of course it is not to be approved when it takes place; but one only needs to visit any robing room in any Crown Court in this country to know that bargaining takes place between an independent prosecuting barrister and an independent defence barrister. Sometimes it is for the convenience of the offender; sometimes it is not. To suggest that that is a problem which will suddenly emerge if we introduce salaried defenders seems to me again to be hiding away from what actually happens day by day in our courts.

Also, it has been presumed that the salaried defender, if he or she comes into being, will necessarily be a young lawyer at the start of a career or a more senior lawyer who has failed in private practice. For my part I can see no reason why that should be the case. As I understand it, in some countries where salaried defenders work alongside independent defenders, it is a distinguished career; it is one which may well lead to the Bench in due course; it is one in which only lawyers who have been in practice for a certain number of years can enter. So there is no need today for us to panic and think, "If they are salaried defenders, they will be either inexperienced or failed members of the Bar".

Much of the reaction against this "modest" step--no-one is proposing that our system of centuries should be altered overnight--is very much overblown. The Bar and those who represent its interests should be much more self-confident about the future than they sometimes give the impression of being. The Bar has survived many things. There will always be a place for an independent Bar, particularly in the criminal defence field. Why this modest step should gain such opprobrium from so many Members of the Committee I find difficult to understand. I hope that in due course the amendments will be withdrawn.

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5.15 p.m.

Lord Phillips of Sudbury: I had not intended to speak in this debate but was rather provoked by the noble Lord, Lord Bach, into saying just a few words. I do so from the vantage point of being a practising solicitor; in fact, it is 40 years since I first briefed a young barrister called Michael Havers on the South-Eastern Circuit.

I want to refer to what the noble Lord said in relation to the reference of my noble friend Lord Hutchinson regarding the almost "spiritual" quality of the Bar. I detected a note of scepticism, if not scorn, in that remark. Indeed, one can seriously overdo the "noble calling" aspect of this debate; on the other hand, one can understate the importance of the sense of vocation which should and does still exist in the Bar and in defenders at the Bar in relation to their work.

I endorse entirely what was said by the noble Lord, Lord Thomas of Gresford. He read from the speech of the Lord Chief Justice of Australia, which was very relevant. It is easy to underestimate the change in ethos that both branches of the legal profession--particularly my branch--are and have been rapidly undergoing in the past decade or two. It is easy also to underestimate the impact of what I would call the "institutionalisation" of the provision of legal services at all levels. That is a reality. While in no way wishing to denigrate those who work in organisations, I would point out as strongly as I can the virtue I see in the independence of the advocate at the Bar; the ruggedness, often bloody-mindedness and the eccentricity, as some would think, of the independent advocate.

As my noble friend Lord Hutchinson said, lawyers receive no perks, no pensions, no nothing. They exist in a highly-competitive environment and we must consider with care the prospect of replacing such a person whose talents and characteristics of independence are so crucial to the defence process by someone of no doubt equal intellectual capability and integrity, but nonetheless operating within an organisation that is subject to all the constant pressures of price, value for money and so forth. It is too easy to underestimate that.

We engage in short-term economies at the expense of the larger interests. The number of wrongful convictions that we have suffered in our system in recent years of the most notorious kind had huge consequences, not only in terms of respect for the system, but also in terms of the expensive repercussions which one can never quantify because they spin off in all directions--the police, the courts and so forth. I do not believe that this is an area where we should either disregard or underestimate the factors to which I referred. Therefore with great respect to the noble Lord, Lord Bach, who speaks from day-to-day experience, as a solicitor I endorse strongly what has been said on the other side of the debate.

I conclude by saying that of course the present system is not perfect; of course there are returns; of course there are incompetent advocates. But that is not what we are discussing. No perfect system exists. We are discussing a system which loses perhaps its most essential element

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for any prospect of improvement; that is, absolute, rugged, unquestionable independence on the part of advocates.

Baroness Kennedy of The Shaws: My views on this matter were expressed the last time we were together at Second Reading. I expressed them forcefully then and do so again today.

My starting point is that if it is even a possibility that our law officers might introduce a scheme such as the public defender system, it is not appropriate for it to be kept as something which exists as a possibility, to be brought into being at some later stage. It should be contained within a separate Bill, brought before this Chamber and discussed in a debate which allows the public to know what is going on. I say that because the Access to Justice Bill contains many good aspects. On these Benches there are a number of people who, with good will, are supportive of the Government in seeking to widen access to justice, but to slide into such a Bill something as undermining of the justice system as a public defender system is wholly inappropriate and should not be taking place in this way.

I do not demur from holding in regard what I consider to be a vocation. I find it distasteful to sit in this Chamber and hear the profession to which I belong spoken of as if it were some sort of corner shop. In saying that, I in no way demean those involved in the world of entrepreneurship, but I believe that there is something special about being a member of a profession and seeking to fulfil that role honourably.

I do not accept the criticisms of the noble Lord, Lord Bach, that lawyers are somehow seeking to describe their role as some sort of calling. Being a lawyer and doing that well makes special demands on us. If we are to serve our clients well, we have to go the extra mile. I did not go into the law to make large sums of money but because I believed that I might be able to make a difference to people's lives. I have always seen my role in the law as, and my practice in the law has always been about, representing those parts of our community which have little voice. Most of my clients have been the poor, the disadvantaged, and those who have experienced discrimination in one way or another. It is the role of the Lord Chancellor and the Law Officers within the system to protect those persons, particularly because they often have little support in the wider community.

Making representations on behalf of those who may have criminal records and who seek legal aid in criminal cases does not often summon up much support from the public. When the noble and learned Lord the Lord Chancellor tells us that he wants to save money for other services such as health and education, the majority of people will have great sympathy with him. Most of us in this Chamber would share that view. However, the Lord Chancellor and the Law Officers also have the role of protecting the liberty of the subject; of ensuring that the system of justice functions well for those who are disadvantaged and that those who are put on trial are

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well represented, and of being the champions of the honour which there has to be in our profession. Their role is not, I hope, to ridicule it in any way.

So, I can proudly say that I consider myself to be part of an honourable profession. My colleagues here today who are expressing concern about this are not speaking from self-interest--it is so easy to insist that that is the case in our discussions on legal aid and "lawyering"--they are speaking about the disadvantaged and the reasons why legal aid was brought into being. It was to protect the system and its integrity and to ensure that those who are less well off have as much right to justice as anybody else.

Several miscarriages of justice have recently been exposed. Very often the lawyers who acted in those cases were those who went that extra mile in discovering evidence which showed that things had gone wrong. There are serious risks in introducing a system which does not allow for such independent, spirited activity. I believe that that would become lost in a system of salaried lawyers such as has been spoken of today.

How is choice preserved in a system such as that described? How is quality maintained? If the question is, as has been suggested by the noble Lord, Lord Bach, that at the lower end of the scale many people who are not terribly skilled are representing the disadvantaged, surely the challenge is to ensure that quality is improved--but not by creating a salaried system in which lesser quality may be institutionalised. There are other ways of improving a system and ensuring that people are well represented.

At the moment--I am afraid that I must operate in a world which is very different from that of the noble Lord, Lord Bach--the profession is being pursued by many young people as a chosen career. The numbers of people applying to chambers such as mine are countless. The selection process at that stage means that only the best get through, and the best from the widest of choices now that so many of the new universities are providing us with law graduates.

The processes of becoming a practitioner at the Bar are such that there will be fewer and fewer "less able" practitioners, as described by the noble Lord, Lord Bach. I find it most surprising that at a time when the market is being extolled by governments (of whatever political complexion), we are seeking also to move away from the independence of the Bar and the very market which is being so promoted everywhere else. Better performance and competition is the name of the game at the Bar. Those who survive and do well in the profession are those who hone their talents, and continue to do so daily, in the courtrooms.

It is a matter of great sadness to me that this proposal has been included in the Bill. I can only imagine that it was to see whether there was a way of saving public funds. However, there are other ways of saving public funds; this is not the way to do it. It is not necessary for me to repeat what has been said far more effectively by others. All that I would say is that there are ways of driving up quality, if that is what concerns those behind this Bill. However, I urge that this matter

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is not pursued at this time. If there is a serious intention to create a public defender system, I urge that it is contained within a separate Bill and that this House and the other place are allowed to debate it properly, with the public fully aware of the consequences of such an introduction for the interests of justice.

In conclusion, I have seen at close quarters this system working in other parts of the world. It is all very well for the Government to say that it would be introduced only at the lowest level of case, but how can we prevent the creeping nature of such a system? How do we prevent it creating a two-tier system of justice which, inevitably, is what has happened in other places where it has come into being?


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