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Line 2, at end insert ("in areas where appropriate advice or assistance is not reasonably available from other sources").

3.45 p.m.

Lord Thomas of Gresford : My Lords, I beg to move, as an amendment to Commons Amendment No. 30B, Amendment No. 30BA. I give great credit to the noble and learned Lord the Lord Chancellor for the changes he has made to the Bill, either here or in another place, as a result of suggestions put forward by my noble friend Lord Goodhart and others. He has approached the Bill in a constructive way. I hope that he will not mind my saying that I have to cavil that he does not go quite far enough.

Mr Keith Vaz, the Minister in another place, sought to question the motives of those who spoke and those who voted in this House to delete from the Bill the provisions which set up a state criminal defence service. He said that our purpose was, in effect, to protect the vested interests of the established profession by preventing choice. I have also heard it said in this House on a number of occasions that we are upholding restrictive practices. I have to say, with the greatest respect, that "restrictive practices" and "vested interest" is the wishy-washy language of consumerism which ignores the historical reasons for an independent Bar.

The noble and learned Lord the Lord Chancellor said that the purpose of the state criminal defence service is to widen consumer choice. That phrase, when used, seems to overlook the fact that the consumer in the field of criminal law and practice is not somebody who is choosing between two different makes of motor car or two different sorts of television sets which may be the subject of a Which? report; he is a person facing a serious threat to his reputation and liberty.

Part of the struggle of the people of this country for freedom and democracy involved a fight to ensure that there were judges who were independent of the executive and that there were advocates who appeared in the courts of this country who put the interests of their clients above the interests of the people in power.

The recitals to the Bill of Rights 1688, for example, complain of partial, corrupt and unqualified persons serving on juries in trials, of excessive fines and of illegal and cruel punishments. That was a reaction to men such as Judge Jeffreys who was a venal attorney-general as an advocate, later a corrupt and cruel judge, and a servant of the Stuart Crown and not of justice and the people. I mention him as an outstanding example from history, and also because I was born in a

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house built in the parkland of his old mansion at Acton, Wrexham. I hope that not too much has rubbed off on me.

The Crown Prosecution Service is to be even more firmly in the hands of the state, because the Bill opens up all the courts to it. The state defence service is proposed in the name of wider choice. The accused currently has a wide choice of solicitors to represent him in his area. Through them, particularly in serious trials, he has access to the best advocates in the country.

The Government argue that state employees in a state defender service will act with the same independence as the rest of the legal profession because the statute says so in its code of conduct in Section 16. They argue that judges are paid by the state and they are incorruptible, so why should state defenders be different? We are reaching the stage when the state will be prosecuting, defending and paying for the judge. The only truly independent and impartial element of the criminal justice system in our higher courts will be the jury. It will not be many months before we are faced with legislation to limit the cases in which jury trial will be permitted.

The argument against the state defender system is not fuelled by vested interests. I was grateful to the noble and learned Lord the Lord Chancellor for repeating what I said on Third Reading. If choice is maintained between a state nationalised defence service and independent solicitors and barristers, there is no contest. Time and again we have been told that in Scotland, where a pilot project is running, 20 per cent of defendants choose the state defender service. The only light to be thrown on those figures came from Baroness Kennedy of The Shaws from the Government Benches. She said that it depended on the sign of the zodiac that a person was born under. Those born in January and February were assigned the state defender service and those born later in the year were entitled to an independent solicitor and barrister. I do not accept the arguments about free choice and the figure of 20 per cent in Scotland.

The standards of service to the consumer--the person who faces a threat to his liberty--are currently protected by the highly competitive nature of the independent Bar and the contract system introduced by the Bill. The legal services commission will insist on higher standards from those who are contracted to provide criminal defence work at the independent Bar. The court is currently protected by the strict disciplines of the legal profession, particularly the Bar, the chambers and the professional bodies. We are concerned to maintain the balance between the state, which prosecutes, and the individual who is charged.

The Government ask how we dare suggest that those attracted to the state defender service would be of an inferior quality. Those of us from all quarters of the House with practical knowledge of the functioning of the Bar and the solicitors' profession in criminal law realise that a state defender service will not attract the highest calibre of candidate. There are not glittering prizes in the state defender's office. The Lord Chancellor referred to my suggestion that the creation of a state defender service nationwide would result in a

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vast bureaucracy. The Crown Prosecution Service certainly has. I do not see how a state defender service could operate a little bit here and a little bit there, but not over large tracts of the country. Of course there will have to be a structure, of course it will be expensive and of course there will be a head of the service and various levels of management beneath that. There will be a bureaucracy.

Our position is not extreme. It is shared by the criminal practitioners in the House from all parties who have spoken, including some on the Government Benches. It is also shared by Mr Denzil Davies in another place. Our position is irreconcilable with that of the Lord Chancellor.

However, it would be churlish of me not to recognise the force of what the noble and learned Lord later said about the change in regulations concerning the right of a defendant to change his lawyer if he loses confidence in him. That has not been said before and I am grateful to the noble and learned Lord for making it clear that regulations will cover that.

I appreciate the constitutional questions that have been raised, but the principle of an independent Bar and independent solicitors acting for the accused when prosecuted by the state is fundamental. It is a freedom that has been long fought for and gained. It has nothing to do with fashionable consumerist ideas.

Moved, as an amendment to Commons Amendment No. 30B. Amendment No. 30BA--(Lord Thomas of Gresford.)

Lord Campbell of Alloway: My Lords, I have two questions for the Lord Chancellor about the regulations. First, when the accused seeks to have a second defender, who decides whether that request should be granted? I hope that it is a magistrate, who is outside the set-up. Secondly, if that request is granted does the second defender have the conduct of the case?

The Lord Chancellor: My Lords, the answer to the first question is that I am fairly confident that it is a judge. The answer to the second question is yes.

4 p.m.

Lord Kingsland: My Lords, I fear that I may lay myself open to the charge of dissembling if I venture to compliment the noble and learned Lord the Lord Chancellor on his opening remarks. They were the most dispassionate and constructive that I have yet heard him utter on the subject.

I remain, however, fearful of the idea of a state-employed representative defending the accused in a criminal case. I find that repugnant in principle. It is even more repugnant if both prosecutor and defender are employed by the state.

I recognise that, in his amendments, the noble and learned Lord has sought to allay the fears of those who share my view by seeking to separate the criminal defence representation service from the criminal defence service itself, making it a self-standing body. That is a constructive proposal.

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We are not seeking to question the integrity or professionalism of criminal lawyers employed by the state. However, we believe that duty to one's employer and duty to the court are irreconcilable. The noble and learned Lord supports the amendments from another place modifying this situation, and that means some progress has been made.

However, I am less happy about the noble and learned Lord's remarks both with regard to the question of need and with regard to the question of competition. I can find no evidence in our country of the need for a state criminal defence service; nor has the noble and learned Lord sought to lay any evidence of need before your Lordships' House. With the addition of the solicitors' profession, which is to have full rights of audience in the Crown Court, the case for need is weakened rather than strengthened.

In relation to competition, I must first thank the noble and learned Lord for explaining the amendment which came from another place, making it absolutely clear that the criminal accused will be able to choose, in all circumstances, between a state employed defender where available, on the one hand, and a private sector barrister on the other. That is reassuring and welcome, and I thank him for it.

However, in relation to the criminal accused who is on legal aid, the fact that he chooses between a state employee on the one hand and a private self-employed barrister on the other who is in receipt of legal aid funds is irrelevant from a competition point of view. All the accused is concerned with is choosing the best man or woman to represent him in court. So what is the relevance of competition to that?

Surely it lies elsewhere. Surely the importance of competition to which the Lord Chancellor refers covers the cost to the state of employing a defender who is employed by the state, as against the cost to the state of employing a private sector lawyer who is the beneficiary of moneys which come from the new contracting process which will flow from this Bill.

But is that competition as we understand the term in a market economy? Market prices play no role in pricing either service. The cost of the state employee is determined by the Lord Chancellor's Department. Equally, the cost of a private sector lawyer will be determined by a process of contractual bargaining between the Lord Chancellor's Department and a particular firm of solicitors--a negotiation in which the Lord Chancellor's Department is a monopoly provider of funds.

Where is the competition? The fact is that the state is in control in both cases. It will not be the forces of competition which determine the future role that the criminal defence service will play; it will be the forces of politics which lodge in the noble and learned Lord's department.

Having delivered myself of what is likely to be, in the noble and learned Lord the Lord Chancellor's opinion, a long speech, I now come to my closing remarks. Of course I entirely accept the constitutional position as set out by the noble and learned Lord the Lord Chancellor. Noble Lords have had the opportunity to amend this Bill

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at Committee stage, Report stage and at Third Reading. The Bill went to another place. Your Lordships' amendments were reversed. It came back and your Lordships sent it back again. It is now back in your Lordships' House. There is no question that, in terms of political legitimacy, another place is in a stronger position than your Lordships' House.

I regret the fact that another place chose to support amendments which in some respects undermine the constitutional position of the criminal accused. However, it is now your Lordships' constitutional duty, I submit, to accept that position; to take the noble and learned Lord the Lord Chancellor at his word; to accept that he has great confidence in what he has done and to leave matters to move to their obvious conclusion.

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