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Lord Clinton-Davis: My Lords, I disagree with the fundamental premise of the noble Lord's argument which has just been adduced, and I have said so before. In providing a complementary service through the private side of the profession, I believe that one should encourage the provision of a salaried service. Moreover, I think that the noble Lord grossly exaggerated the draconian effects that the introduction of such a service would have. In fact, I do not believe that would be the case at all. I believe that it could be an important process in the development of someone's professional career. I do not believe that the experience in Arizona necessarily disqualifies the introduction of this proposition in this country.

It is, with respect, something of a slur on those engaged in the Crown Prosecution Service, for example, to imply--this was not said expressly--that they will not devote themselves assiduously to engaging in the task that is before them. There is not a shred of evidence to suggest that they are simply a nine-to-five operation. There is a considerable measure of pride in the work that they do, even if perhaps they are not rewarded for going outside the usual hours of service that are expected of them, just as in the private side of the profession lawyers take pride in their work and they are not necessarily compensated for every minute that they are engaged in the work that they undertake.

When we addressed these issues at the Committee stage my noble and learned friend said that he had no intention of providing the majority of services through the salaried service. That is an assurance that the House should welcome, as indeed it should welcome the amendment tabled by my noble and learned friend that would certainly remove the suggestion that there would be some compelling reason for an individual to have to use a member of the salaried service. That is how I understand the position although my noble and learned friend will, of course, summarise the argument for himself. As I understand it, that should be a satisfactory assurance for the House.

In approaching this issue, I think it is important to ensure that the service is provided with sufficient resources to protect the rights of the individual. There is no suggestion that that would not be the case, although it is again one of the arguments that is implied by the noble Lord. It is important in this context to ensure that there is a greater parity of representation--there cannot be complete parity of representation--between the defence and the prosecution. I urge the noble Lord not to pursue this argument because, as I have indicated, I think it could be interpreted unfortunately by those

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who are currently engaged in the prosecution service and who, by and large--of course, mistakes are made--do their work well.

Lord Carlisle of Bucklow: My Lords, not having taken part in the Committee stage, one of the disciplines that one imposes upon oneself is that one is required to read it. Having done so, I am happy to say that I do not propose to repeat the arguments so eloquently made by the noble Lords, Lord Hutchinson and Lord Thomas, and by the noble and learned Lord, Lord Ackner, against the whole principle of the salaried defender. Having read those speeches one is in the happy position of being in the situation of the third member of the Court of Appeal who is able to say, "I agree and have nothing--or, in this case, little--to add".

I wish to ask one or two questions. I make it clear that I align myself with those who are opposed in principle to this proposal. The noble and learned Lord the Lord Chancellor was good enough to accept at the end of one of his speeches that there was a distinction in principle between those who favoured a salaried defence service and those who did not. I make it clear that I put myself with those who are opposed to a salaried defence or salaried prosecution service. One of the great strengths of the English criminal Bars is that lawyers both defend and prosecute. Despite the words of the noble Lord, Lord Clinton-Davis, a salaried defence and prosecution service is inevitably bound in the long run to harm the independence of those services.

What is the purpose, as the noble and learned Lord the Lord Chancellor sees it at this time, of the criminal public defender? In particular, what is the need for the introduction so quickly in the Bill? On any view, it would have been accepted by all sides of the House that we are proposing a major, fundamental change in criminal representation in this country. We know that it first saw the light of day on the face of the Bill without any form of prior consultation with the Law Society or the Bar Council. What is the hurry for its implementation?

In Committee the noble and learned Lord the Lord Chancellor made it clear that he did not envisage that it would be greatly used. He said:

    "I stress that it is not our intention that salaried defenders should supplant the independent Bar or, indeed, the solicitors' profession. That will never happen. We see value in the commission having power to introduce into the system a salaried element, subject to appropriate ethical safeguards. But it will always be a mixed system in which the salaried element will by far be the smaller part".--[Official Report, 26/1/99; col. 916.]

What part does the noble and learned Lord the Lord Chancellor envisage the salaried defender will play? What is the salaried defender able to provide which the duty solicitor system at the moment cannot adequately provide? I am driven to the conclusion that the purpose must be, and can only be, the intention to try and save money. Let me make it clear that I fully accept the importance of that aim; I fully accept what the noble and learned Lord the Lord Chancellor has said on many occasions; namely, that one must be concerned about the rapidly increasing costs of criminal legal aid. Where I part company from him is in the criticism that he goes on to make of my colleagues at the criminal Bar

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without regard to the fact that almost all of those fees come through graduated fees agreed with his department.

I accept that there is a concern about the rapid increase in the cost of criminal legal aid; I accept that we should have value for money. But value for money is not the same thing as saying, "Let us provide the defence as cheaply as we possibly can". It seems to me that the only intention behind the creation, out of the blue, of the public defender--without adequate explanation of his role; without adequate consultation about the effect that it will have on the future of the legal profession in this country--is merely a demand to see how cheaply you can get the service done. I hope that when the noble and learned Lord the Lord Chancellor comes to reply to the debate, he will explain how he envisages that role, and why he believes it is necessary to bring it in now rather than in the course of separate legislation, as the noble Baroness, Lady Kennedy of The Shaws, suggested.

Baroness Mallalieu: My Lords, those parts of Clauses 13 and 14 to which these amendments relate continue to trouble many of us who practice at the Bar, some of whom are not able to be in their places today, in particular the noble Baronesses, Lady Scotland and Lady Kennedy of The Shaws.

I hope that the noble and learned Lord the Lord Chancellor will accept that that is not because our brains have atrophied into a backward-looking trade union mindset as a result of a surfeit of feather-bedding and rich pickings from the regal legal aid system--to use phrases used earlier at Committee stage--but rather because we have worked, with not a little pride, under a system which was largely shaped by those great reforming Labour Lord Chancellor's, the late Lord Gardiner and Lord Elwyn-Jones. Many of us are deeply fearful that these particular proposals, whatever the financial necessities that drive them, will result in a system which serves the public less well in the future.

Salaried defenders are not currently necessary. At present there are ample independent practitioners of the requisite skill ready and willing to carry out the workload under legal aid. I accept that that could change after the passage of the Bill. Firms of solicitors which currently carry out an element of legal aid work-- often out of public spirit and at some commercial disadvantage to themselves--may no longer be prepared to do so once it becomes necessary for them to apply for franchises. In those circumstances, sadly, some areas could well find that there are insufficient legal aid practitioners available, particularly in specialist fields. But if and when such a situation arises, that surely would be the time for a proper debate based on actual need for these provisions, followed possibly by legislation to meet that need.

The underlying principle that causes many of us great concern continues--and continues despite the assurances which the noble and learned Lord the Lord Chancellor has already given. The state which makes the accusation and conducts the prosecution must neither control the defence nor appear to do so. The independent defender is the main safeguard which ensures that that does not happen. The public is rightly

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concerned about miscarriages of justice. Time and time again it has been independent practitioners--both solicitors and barristers--who, long after they have ceased to be paid to represent an accused, have continued to work and campaign at their own expense to right such wrongs, sometimes over many years.

Accepting what the noble Lord, Lord Clinton-Davis, has said about those who currently work within the Crown Prosecution Service, many of us worry whether the salaried defender will be permitted to devote the time of his employers to pursuing what were sometimes wrongly seen by others as lost causes.

I cannot support the principle behind this part of the Bill, quite simply because I do not think that it will improve access to justice; rather the reverse. I hope that the noble and learned Lord the Lord Chancellor understands the strength of feeling and, above all, the dismay which is widespread in my branch of the profession and beyond about these particular aspects of the Bill.

I hope that the noble and learned Lord will also understand that I and others are grateful to him for giving some way, and going some way, to meet concerns about the lack of choice for an accused which was raised by all sides of the House in Committee stage. In particular, Amendment No. 111--to which we will come soon--is helpful, if partial, reassurance. I hope that the noble and learned Lord the Lord Chancellor will be able to give a rather fuller reassurance before the Bill leaves your Lordships' House--namely, that every accused person will, unless it is wholly impractical, be permitted to choose whether to trust his defence to an independent practitioner rather than to a salaried defender allotted to him. Unless an accused person can do so, I am fearful that the role of the independent defender will be steadily undermined, and the underlying principle of criminal legal aid--that the very poorest should also have access to the very best--will, over time, become a thing of the past.

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