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Lord Wigoder: The noble Lord, Lord Bach, put forward a number of criticisms of the Bar which have been heard before and which undoubtedly have some validity. However, the noble Lord has compared the Bar as it is now with a sort of ideal that some people create in their minds. The real test is how do we compare the Bar as it is now with how a public defender and public prosecutor service would operate. The answer then becomes rather different.

The noble Lord mentioned three matters. First, he said, quite rightly, that not everybody at the criminal Bar is a person of high calibre. Of course, there are beginners at the Bar and people who last for several years before finally giving up the struggle. All that one can say is that at least the average member of the criminal Bar is likely to be a person of higher calibre than the average member of a state prosecution or defence service. That is not because they work in the state prosecution or defence service, but because the average member of the Bar has survived in a highly competitive world and could not have done so unless he was a person of real ability. The same does not necessarily apply to members of state prosecution or defence services.

The second point which the noble Lord raised is that there are trials in which a private barrister is pitted against an independently instructed prosecutor, and one is very much superior to the other. If I may say so, that is abundantly obvious. However, what will happen if there is a state defender and a state prosecutor? Will the person in charge of the state defender ring the Director of Public Prosecutions and say, "In the case of Jones tomorrow, we are putting up only a class 5 chap. Would you be good enough to put up a class 5 chap as well and then it will all be fair?". Life is not like that. If there were a state prosecutor and a state defender there would be exactly the same disparities as one inevitably gets from time to time now.

The third argument is the old one that as the Bar functions at present there are sometimes problems with the late return of briefs and counsel who are inadequately instructed. That is undoubtedly true. However, it is fair to say that in a well-organised set of chambers if counsel has to appear at the last minute he at least gets the benefit of counsel who were instructed prior to the date of the hearing. His replacement should be given the benefit of his experience. It is not the Bar's problem really, but more of the organisation of the

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courts. The Bar becomes involved in cases which are expected to last two or three days. The individual members of the Bar have their commitments for the following days. Suddenly a witness becomes ill or a case continues two or three days longer than anticipated. There is then a problem with a barrister who has been briefed in perfectly good faith, weeks in advance, in the apparent knowledge that he would be available for a particular trial. I do not blame the judge for not saying, "In that case we shall adjourn for two or three days" and do nothing but have a couple of rounds of golf or whatever it may be while awaiting counsel to become free of his previous obligation. With the way the listing system works there is no alternative but for the Bar to find itself with such problems.

A state defence or prosecuting solicitor or barrister will find exactly the same problems. One frequently has been in a magistrates' court when the prosecuting solicitor has arrived with an armful of briefs which have been handed out that morning because it was the turn of that particular solicitor to attend that particular court, but with no opportunity for preparation. One will get exactly the same problems with a state defence service because one will become involved in a case which has gone on longer than anticipated and a subsequent case has to be handed over to a colleague.

I suggest to the noble Lord, Lord Bach, that the criticisms he made should not be set against an ideal Bar in an ideal world, but against the alternative which is being put forward in this Bill of a state-employed, salaried defender and a state-employed, salaried prosecutor. I believe that if he looks at the matter impartially what can be said in favour of the alternatives in this Bill is that they are probably cheaper. But against the alternatives there is the service which the independent Bar has given and continues to give.

5.30 p.m.

Lord Clinton-Davis: I have listened with very great care to all the lawyers who have spoken in this debate and in particular to the noble Lord, Lord Hutchinson, who paid a very valid tribute to my noble friend Lord Mishcon. I was once his articled clerk. On the very first day of my articles I went to a conference with the noble Lord, Lord Hutchinson. No one had instructed me as to what I was supposed to do. I thought that I ought to intervene from time to time as I considered that to be an obligation. I was asked by the noble Lord, Lord Hutchinson, to remain behind after the conference. He said, "Mr. Clinton-Davis, there is no mandatory requirement to intervene quite as much as you did". I took that to heart afterwards.

I am not persuaded that we should not go ahead with this scheme provided that it is very carefully monitored. We are not living in a situation where we can necessarily take on board that which applies in Australia, New Zealand or the United States of America. We can build on our own experience. I do not see the dire consequences that have been portrayed as necessarily becoming a reality. Until 1984 I also practised in the criminal courts. I gained quite a lot of experience there as a solicitor advocate. But when I wanted to employ counsel situations frequently arose

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about returns which were embarrassing not so much to me as a solicitor, because I was not doing my own advocacy, but to the person whom I represented. I had never seen the person before. He might have had conferences with the barrister who was supposed to represent him. That is very embarrassing not simply in terms of the relationship between the client, solicitor and barrister concerned, but because it also brings the law into some measure of contempt as regards the lay person. We have not heard too much about that.

Of course, it is quite right that in certain circumstances one wonders whether someone in a salaried occupation would fight quite so hard to expose injustice in the way in that it has been over the past few years in particular. We should listen very carefully to the evidence which has been garnered. As regards advocacy, we should apply very high standards which, as the noble Lord, Lord Bach, said, are not always present in either of our professions. One has only to go into court to know that. People get away with rather low standards. We should be concerned about that. The fact remains that it is an important element of the whole argument that we should retain the standards of the independent Bar, and that is what I understood was the subject of the previous debate.

I ask my noble and learned friend what steps he will take to ensure that some of the dire consequences which have been mentioned in this debate by other Members of the Committee will be carefully monitored and that the whole system will be watched carefully. I hope that evidence will be accumulated in order to ensure that such situations do not arise.

There is one other factor which has not been mentioned as regards people employed in a salaried service. I do not want to make too much of it. They can accumulate for themselves quite a lot of experience which can be put to use in the private sector once the learning curve has been undertaken. In the United States one of the great benefits of having young people in particular working in the department of justice, in the district attorney's office or in the security and exchange commission, is that they have some measure of security while undertaking that process of education. That can most certainly be put to the advantage of their clients in the private sector later on without compromising their position. High standards do exist in the United States. It is quite wrong that people write off the experience of other countries as a colossal failure. There is no evidence of that. There is good and bad.

Subject to the caveat which I have entered and to which I hope my noble friend will respond positively and affirmatively, we should engage in what I regard as a useful experiment which could bring better value to the lay client than sometimes exists at the present time. It is not all good or all bad. Many of those who have argued against my noble and learned friend's proposition have adduced good arguments which I find

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very persuasive. But there are good arguments on the other side, too. A balance needs to be maintained and to do that one needs a chip on both shoulders.

Lord Renton: This, for me, is a nostalgic occasion because I was called to the Bar 66 years ago this very evening.

Noble Lords: Hear, hear!

Lord Renton: In fact, it has been a nostalgic occasion for several reasons. I once had the privilege and pleasure of leading the noble Lord, Lord Wigoder, when, while prosecuting a criminal case at Hertford Assizes, we embarked upon a scheme which had not been tried for 200 years and which subsequently became an acceptable part of the law. Moreover, the noble Baroness, Lady Mallalieu, did her first brief in front of me when I was Recorder of Guildford.

However, I wish to be brief. When I first looked at the Bill I was scared. I really thought that it would lead to a deterioration of standards. But, as we have proceeded in Committee, I have become more and more encouraged by the fact that the noble and learned Lord the Lord Chancellor has accepted the views of those who have criticised the Bill. I hope that he will continue to do so.

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