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Lord Hutchinson of Lullington: My Lords, one of the problems about the public defender is that, this being an Access to Justice Bill, all those who speak are liable to be lawyers who are inevitably involved in the matter. That makes it very difficult for those who are not lawyers to separate the wheat from the chaff. Because of the way the Lord Chancellor has replied to criticisms from his fellow lawyers--it has come to the fact, as the noble Baroness has just said, that any argument put forward is seen as special pleading--one has to start one's observations by showing that that is not one's attitude.
I am bound to point out to the noble and learned Lord that when, more than 20 years ago, my noble friend Lord Wigoder and I formed the Criminal Bar Association we did so in order to create a radical reforming body within criminal practitioners. That association continues and is flourishing. Indeed, I think I can say without exaggeration that it has played an influential part in all reforms to the criminal law in the past 20 years. My noble friend Lord Phillips has done
I should like to bring this matter nearer home. Anyone and any Member of this House may find himself in a police station. He may kill someone with his car. He may be wrongly identified in a public lavatory or at a demonstration. He may carry goods out of a shop and be charged with stealing. There are a hundred other ways in which any member of the public may find himself in a police station. When he gets there the routine is that he will be put in a cell, to await his production before the duty sergeant, in order to cool off or possibly to make him more amenable to making a statement.
What does that person want when he is in that cell, incommunicado, alone, frightened or indignant? He wants someone from outside; someone who will be on his side, with time to listen, to act, to restore his personal liberty and personal self-respect, and to understand his predicament. He does not want a friendly WPC, or a probation officer, or a welfare officer. He wants someone from outside. In other words, he wants an independent person, an independent lawyer. When he is awaiting trial he wants someone--this was referred to in Committee by the noble Baroness, Lady Kennedy--who is prepared to go the extra mile. In saying that, the noble Baroness was disparagingly accused of casting herself in a heroic role. It has nothing to do with heroism. It happens to be the essence of advocacy. Advocacy is not oratory, as many lawyers find in this and in another place. That is the essence of advocacy; to pursue someone's case, however long, however boring and however difficult it may be, and to establish his innocence or the probability of his innocence.
In Committee the noble Baroness, Lady Crawley, made a moderate and most thoughtful speech about this matter. As a non-lawyer, she felt that the part-time salaried advocate could provide a benchmark to measure the quality and cost-effectiveness of the advocate. I would say to the noble Baroness and to other Members of the House who think that there is something in that suggestion that it is simply not like that. Would the noble Baroness send a part-time surgeon into the operating theatre to monitor and see how the work was being done? Would she send a part-time pilot onto the flight deck to see whether the pilot's work was being done properly? Of course, any fool can do this job more cheaply, spend less time on it and cut every corner, but who is measuring the quality assurance; who is the master in that situation? It is the defendant who gives the instructions, but is the master going to be the Treasury, or the CDS or the LSC?
When it comes to trial, what does the person want when facing up to the accusation? Let us suppose that the police have put up a false case. Let us suppose that they have put in a false confession. Let us suppose that they have had a false identification or have planted drugs in the person's car, as, alas, happens only too often. What the defendant wants is, first, an independent judge; secondly, a jury randomly selected; thirdly, a fair and detached prosecutor; and, lastly, a fiercely independent advocate. All those players can be
Governments have always sought to tamper with this structure--these awkward entities. It is said that judges are self-important and seek to control politicians. It is said that juries can be perverse, expensive and slow and that people's ability to go before a jury should be reduced in order to save money. It is said that juries are not intelligent enough to try difficult cases. In this House it is our job to be vigilant, to perceive the dangers that lie ahead and to stop the Executive when it goes too far. When a Minister, given powers, assures noble Lords that they will not be used, the warning bells ring around the Chamber and, I may say, have always done so in my time in this House.
This part-time lawyer will only fill in gaps and will never do difficult cases. Who is he? We have never been told. Where will his desk be? We have never been told. What are his job prospects? We have never been told. What will his experience be? We have never been told. A salaried defender service can be brought into existence, as the noble and learned Lord agreed, under this Bill. That is the true situation. As the noble Baroness, Lady Mallalieu, pointed out, the frank wording in paragraph 99 of the Explanatory Notes says precisely that:
There you have it. I ask the House: is that what the public wants; is that what the accused person wants? Can we imagine any independent judiciary drawn from the Crown Prosecution Service and the criminal defence service? One has only to ask that question to see the mischief which could come about.
Lord Clinton-Davis: My Lords, I am obliged to the noble Lord for giving way. I well remember during my many years of doing criminal work as a solicitor that many stipendiary magistrates were drawn almost exclusively from that class of barrister who practised as a prosecutor in criminal cases. The same applied to many judges in what used to be the Quarter Sessions and is now the Crown Court. What is the difference?
Lord Hutchinson of Lullington: My Lords, the noble Lord refers to the barrister who prosecutes. Every barrister can prosecute or defend and has a practice which may do more prosecuting or more defending. Every barrister to whom the noble Lord referred was a free member of the Bar who could take briefs from any area he wished. The noble Lord knows perfectly well that when Treasury counsel are prosecuting at the Central Criminal Court they may leave that area, take on other work and become judges or defending barristers, whereas someone who is employed in a government office could never be in that situation.
That is the language of bureaucracy, of the Civil Service, of control, of intellectual isolation; it is a world of codes and guidelines, those fig-leaves of control. I must tell the Lord Chancellor that from my simple inquiries at the Criminal Bar the young men and women feel at this time that those at the top of the profession are losing touch with those at the coal-face. As has already been pointed out, this idea was inserted into the Bill without any consultation with either branch of the profession or indeed with the public. I suggest that it is a dangerous concept and should be removed from the Bill.
First, I question the assumption of the noble Lord, Lord Hutchinson, that a salaried defender service would somehow be a part-time service. He colourfully illustrated his point asking whether I, as a non-lawyer, would want a part-time pilot on the flight deck. As a current Member of the European Parliament who travels a great deal by air, I certainly would not want a part-time pilot on the flight deck, and I would not be defending a salaried defender service if I felt that that was an accurate way of describing it.
I support the arguments put so clearly by my noble friend Lord Clinton-Davis. These amendments reflect an unnecessary anxiety in parts of your Lordships' House about the prospects of salaried defenders. As far as I can see, the concern is based on rather emotive assumptions and some, though not all, questionable anecdotal information about a salaried defender service totally lacking in independence and overflowing with second-rate practitioners. Yet, from what we know of experience around the world, the picture of the quality of salaried defenders is quite mixed with some countries coming off much better than others. Recent 1997-98 studies referred to in the White Paper are attached to the Bill.
But even that mixed picture does not need to reflect our own proposed new scheme which, from the start, will be based on exacting quality control. Anxiety is also based on good old-fashioned resistance to change which, in some ways, is to be expected. Change is never easy, particularly where traditions and ways of working have a long and distinguished pedigree. But such resistance is no real justification for not even contemplating the introduction of a choice between salaried defenders and private practitioners. The Lord Chancellor made it perfectly plain on several occasions during the passage of this Bill that it is not calling for a summary take-over by a salaried defenders' service. As my noble friend Lord Clinton-Davis said, it is seeking a complementary competitive choice for clients.
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