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Lord Borrie: My Lords, I did not intervene on this part of the Bill during its earlier stages in this House. However, I listened to many speeches, including at least two excellent speeches by the noble Lord, Lord Thomas.

A number of noble Lords, including the noble Lord, Lord Thomas, attacked the provision which would enable lawyers employed by the criminal defence service to provide not only representation but advice or assistance of any kind in the criminal courts. They attacked the provision--it has emerged once more in the speech we have just heard from the noble Lord--on the basis that the proposal might lead to the extreme of removing the choice of an accused person to have a private practitioner as his lawyer and advocate, if that is what he wants. It is thought, and it was repeated by the noble Lord, that the proposal might lead to the extreme of a comprehensive public defender system. The noble Lord used the word "nationalisation", no doubt because it has an emotive effect. There is the suggestion that it would replace the independent Bar, as it exists not just as we know it in London, but in Manchester, Birmingham and Newcastle.

During the course of previous debates, the noble and learned Lord the Lord Chancellor denied any such extreme intention. There is no basis or evidence for the suggestion of the noble Lord, Lord Thomas of Gresford, that the extremes he envisages are likely to come about. Furthermore, there is no evidence, certainly in this country, of any lack of dedication or lack of fearlessness--qualities which the noble Lord of course regards very highly--on the part of an employed lawyer of a criminal defence service because we do not have one. However, this links up with debates we have had as regards civil courts, to which we may well return tonight.

There is a kind of distrust on the part of eminent practitioners like the noble Lord, Lord Thomas, that the employed lawyer, the in-house lawyer, is incapable of giving independent advice and independent representation and is incapable of being fearless because he is scared of losing his job or his present post. We shall come to that in due course. However, it seems to me--and of course the proposals are of a modest nature--that there is no basis for saying that an employed lawyer would not be capable of doing the very best he could for the accused person.

Let us not forget the importance of Clause 15. Rather rashly perhaps, I draw in aid my recollection that the noble and learned Lord, Lord Ackner, was very keen that employed lawyers should be subjected to a code--a code now set out in the Bill--which would involve consultation with the Law Society, the Bar and so forth, ensuring dedication, fearlessness, and above all duty to the court, which are so important, whether he or she is independent or an employed lawyer.

In conclusion, it is not the noble and learned Lord the Lord Chancellor who is being extremist in the proposal that he is bringing forward. I am afraid it is the majority

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of this House who were extremist when they tried, by the successful anti-Government amendment, to make it completely impossible for the courts to allow any lawyer employed by the criminal defence service to act in any way, by advice or assistance or representation, in any court. That seems to be extreme, and there is no warrant for it.

Lord Clinton-Davis: My Lords, I rise to support my noble friend Lord Borrie, as I think I did--my memory does not go back that far--in previous debates. If I merely made the speech to my wife, I apologise.

This is an extreme amendment, in that it casts doubt upon the ability of lawyers who operate in any salaried service, because the same criteria would apply, and that is wholly unjustified. Why should we have a Crown Prosecution Service? There is a very strong case for it. Anyway, it is establishing itself over the years. It has had difficulties, as one recognises, but they do not constitute a reason for saying that the Crown Prosecution Service has failed and should be abolished, or anything of that kind.

Therefore, I do not think that this form of extreme amendment puts the case made by the noble Lord, Lord Thomas, in a good light. It is somewhat protectionist. In fact, if lawyers were to adopt that attitude they would be seen as being protectionist, and that is unhelpful. The job of a defending lawyer is to do his or her work to the best of his or her ability. In the United States it is seen as a valuable way of gaining useful experience, and subsequently many people in that position go on to offer their professional abilities to the private sector. I see nothing wrong with that. Therefore, the noble Lord should reflect further on an amendment which I think is wholly without cause.

Lord Hacking: My Lords, the noble Lord, Lord Thomas, is clearly a great, persuasive advocate, because he has persuaded my noble friend Lord Clinton-Davis to describe his amendment as extreme. In fact, it is not at all extreme, because all that he seeks to do is to remove Commons Amendment No. 27, which adds another sub-paragraph to Clause 14(2). The subsection, with the Commons amendment, would read:


    "The Commission may comply with the duty imposed by subsection (1) by ... itself providing advice or assistance".

The reason that the noble Lord, Lord Thomas, is being so persuasive is that he is not addressing at all the individual amendments that he is seeking to have removed. His speech did not address them either. It was directed towards the principle of the criminal defence service. As he argued strongly in Committee and on Report--and he may well have done so again on Third Reading--he has very strong views on the subject: he is opposed to it. But that is not the Commons amendment with which we are dealing. The principle of setting up the criminal defence service is in Clause 13(1). That is not what we are debating now.

Lord Hutchinson of Lullington: My Lords, the amendment raises a profoundly important debate. The fact that it arises now, at this late hour, much to the Government's convenience, does not make it any less

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profoundly important. Of course, we all now have to tear up the speeches that we would have made if the matter had come on at the proper time; we all have to curtail our arguments.

The case against the amendment can be put very shortly. No doubt I shall be accused yet again of smugness, of superiority, of special pleading and, as we have just heard yet again, of protectionism. The case can be put very simply. Let me spell it out.

Our democracy and our fundamental freedoms depend on the rule of law. The law is upheld first by an independent and uncorrupt judiciary. Secondly, it is upheld by the advocates--barristers and solicitors--without whom the judges could not operate and from among whom the judges are drawn. The essential characteristics of the judge are those which are instilled into him and observed by him as an advocate: above all, independence and integrity. Thirdly, when the chips are down and the citizen is in danger of losing his liberty, his livelihood or his reputation, he can appeal to a jury of 12 ordinary people like himself, unbiased and, once again, independent--independent in each case of government, of police, of all the agents of power and privilege which bind together the structure of the whole criminal process, fought for over the years and correctly described as the bulwark of our liberties. That is the structure, and attacks on the structure are fierce and continuing.

Lord Hacking: My Lords, on a point of order. We should be addressing Commons Amendment No. 27. We should not be addressing Clause 13(1).

8.15 p.m.

Lord Hutchinson of Lullington: My Lords, I am at the moment addressing the submission that this House should not agree with this Commons amendment. The amendment has been introduced by my noble friend Lord Thomas, and I think everybody agrees that what we are discussing now, with all the other amendments that go with it, is the question of the public defender. It is to the question of the public defender that I am addressing myself. If I am out of order, no doubt someone will tell me, and I will sit down; otherwise, I intend to continue as I have begun.

The attacks on the structure that I have set out come mainly from politicians. The judges are criticised for being too powerful and too political. The right to jury trial, I understand, is now to be cut down. Attacks on the advocates have been sustained throughout the passage of the Bill in almost a violent form. But it must be blindingly obvious that to introduce under this clause a salaried defender, a staff lawyer from the bureaucracy of the criminal defence service, working in the office under the control of the legal services commission, watched over by the legal services consultation panel, in touch with his colleagues in the CPS, is to undermine the whole structure which I have described. This ominous figure is there to assess, we are told, value for money, not because he is more honest, more assiduous, more learned or more cheap. He is apparently to report back to his employer on the extent to which his colleagues in court are wasting public money--a kind

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of Treasury spy. His name perfectly describes his bureaucratic origins: "A quality assured public supplier of legal services", what we happen to call at the moment "counsel".

No codes, no guidelines telling such persons that they must behave as though they were independent, will clear the mischief. Once the public defender is introduced to complement the public prosecutor, the stage is set for a nationalised legal criminal service--the CPS against the CDS.

Although the Bill has some radical provisions, I suggest that this clause is an aberration, if not an abomination. It is difficult to see why the Lord Chancellor persists in a course which is so widely condemned. He deserves praise for introducing the Human Rights Bill, for which he will be remembered. But I ask him to listen to those who have fought the human rights battle for years where it really mattered to the citizen; that is, in the magistrates' and Crown Courts of this country. It may be more prestigious and remunerative to argue abstruse legal points at Strasbourg or in the Judicial Committee of this House, but I suggest that there is more to be learnt about human rights in the cells of the Old Bailey or in the squalor of Wormwood Scrubs. I sincerely hope that this House will not agree to the amendment.


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