My Lords, I beg to move that the House do not insist on their disagreement to Commons Amendments Nos. 27 to 30, and do agree with the Commons in their Amendment No. 30B in lieu thereof. With your Lordships' leave, I shall also speak to the remaining amendments in lieu, Commons Amendments Nos. 30C to 30F, and to Amendments Nos. 30BA and 30DA.

The new Commons Amendments Nos. 30B to 30E would restore to the Bill powers for the legal services commission to employ salaried lawyers to provide advice, assistance and representation as part of the criminal defence service. In addition, Amendment No. 3OF would extend the scope of Clause 15(9) to provide that regulations about choice of representative could not require a person to select an employee of a body established and maintained by the commission. As it stands, Clause 15(9) only precludes regulations that require someone to select a representative employed directly by the commission. Your Lordships may recall that the Government intend to pilot two models for employing salaried defenders; direct employment by the legal services commission, and employment by separate not-for-profit bodies established and maintained by the commission for the purpose of providing criminal defence services. Amendment No. 30F will extend the principle of choice enshrined in Clause 15(9) to both situations.

The provisions in the Bill about salaried defenders have already been exhaustively debated. Despite some of the warnings we have heard in this House, these provisions would not create a US-style public defender system; they do not strike at the heart of our constitution or the rule of law; and I have the utmost confidence that they do not sound the death-knell of the criminal Bar, which—I confidently predict—will go from strength to strength. They are modest provisions to add a further item to the range of ways in which the legal services commission may secure criminal defence services.

The other place, the democratically elected Chamber, has now twice restored to the Bill the powers for commission to employ salaried defenders directly. Some 75 Members of the other place have signed an Early-Day Motion in support of salaried defenders, including Labour Members and some Conservative and Liberal Democrat Members. I invite your Lordships to respect the views expressed in the other place by not rejecting these modest proposals for a third time.

Salaried defenders are part of a package of reforms set out in this Bill that makes substantial changes to rights of audience and removes other restrictions on the provision of legal services that cannot be justified in the public interest. The Bill has established the principle that employed advocates should enjoy full rights of audience.

Our reforms of legal aid and legal services will benefit the public and widen consumer choice; as I have already said, the other place is proposing an amendment to improve further the clause about the right to choose a representative in criminal cases. I have to submit to Your Lordships that it must ultimately be for the elected Chamber to decide what is in the interest of the public and of consumers, on any issue concerning restrictive practices, rights of audience and whether the state may expend public money on criminal defence services through salaried lawyers or be confined exclusively to lawyers in the private sector.

I now come to the reasons why the Government see value in a power to employ salaried defenders and I will then deal briefly with the arguments against them put in particular by the noble Lord, Lord Thomas of Gresford, and others.

Salaried defenders will give the public a wider choice of representative; they will provide the legal services commission with the means to assess the value for money of criminal defence services generally, and provide a competitive stimulus to lawyers in private practice; and they will increase the commission's flexibility in providing criminal defence services, in particular allowing it to fill any gaps in coverage there may be in remote areas.

The noble Lord, Lord Goodhart, wishes to restrict salaried defenders to this last role alone. His Amendments Nos. 30BA and 30DA would allow salaried defenders to give advice and assistance or to represent clients only in areas too remote or insufficiently lucrative for the private provider to wish to provide a service. I have said on a number of occasions that salaried defenders will indeed give the commission the greater flexibility to provide access to legal services in every part of the country. But I cannot accept these amendments because salaried defenders have more to offer than just filling in gaps in provision. They will help the legal services commission to determine whether it is obtaining value for money, a matter to which I shall return shortly; and they will give the public a wider choice. On the all-important issue of choice, the noble Lord, Lord Thomas of Gresford, said in our last debate:

"I have no fear that the independent Bar would beat any public defender service if the accused person were given any choice. I have never been afraid of competition and neither has the Bar".—[Official Report, 14/7/99; col. 421.]

He also described it as "ludicrous" that choice would be exercised in favour of the state defence service, although I have to remind him that more than 20 per cent of the clients of the Public Defence Solicitors' Office in Scotland are now using its services by choice. If no one would choose a salaried defender in preference to a member of the Bar in private practice, then surely the Bar has nothing to fear. The noble Lord says that choice will inevitably be removed. Heedless of my explanation that a salaried element in a mixed economy of criminal defence services will be built up gradually following a number of small pilots, he seems to have in his mind the concept of a vast bureaucracy, overstaffed and underemployed, pressing the Government to cast off the principle of client choice—a principle that permeates this Bill—in order to keep itself in business.

I stress this point as plainly and clearly as I can. The Government intend to ensure, first, that defendants will be offered a choice of representative; and secondly, that that choice will lie between contracted firms in private practice and, perhaps, a local salaried defender's office.

We have already announced that all franchise firms will receive a contract in the first round. After that, if they continue to meet quality standards and take part in the duty solicitors' scheme, I see no reason why they should not all win further contracts. The choice we intend to offer is enshrined on the face of the primary legislation in Clause 15(9). Clause 15(9) provides that regulations under Clause 15(8)—that is, regulations which limit defendants' choice of representative—may not require the defendant to choose an employee of the commission. As I have explained, the other place has proposed an amendment, Amendment No.30F, that will strengthen that subsection further.

We shall discuss the provisions regarding choice in some greater detail when we come to the next group of amendments. But it may be helpful if I anticipate that and remind the House that, while we are seeking to promote the greatest possible continuity of representation, a person's choice of representative will not necessarily be irrevocable. Regulations under Clause 15(8)(e) will define circumstances in which a change of representative is justified. I say in particular to the noble Lord, Lord Thomas of Gresford, that those will include a genuine and well-founded loss of confidence or other breakdown in the lawyer-client relationship. Regulations under Clause 15(8)(d), dealing with the permitted number of representatives, will define the circumstances, including all jury trials, when a defendant may choose a specialist advocate as a second representative. It would therefore be possible for someone who is represented by a salaried defender in the solicitor role to choose a barrister in private practice as advocate.

As I explained on Report, the right to choose a second representative as advocate would apply even if the original representative, whether a salaried defender or a solicitor-advocate, had the necessary qualifications to appear as advocate himself or herself. I hope that those examples will convince your Lordships that the Government are committed to providing real choice.

The noble Lord, Lord Kingsland, made a characteristically brief but pertinent contribution to our previous debate on this subject from the Opposition Front Bench. He saw no evidence of any need for salaried defenders; he could not understand how they would enhance competition and quality; and he feared that they would undermine the perception and perhaps the reality of criminal justice.

On the question of evidence, I would refer him to the body of international research and opinion based on comparisons of different systems in other jurisdictions. I described those in our last debate and will not repeat the details now. However, the consensus is that a mixed system, combining private and salaried lawyers, can be the best and most cost-effective way of providing publicly-funded criminal defence services: better, that is, than either a wholly private system such as ours, or a comprehensive public defender system of the type found in some parts of the United States.

The right to choose a representative, which I have already discussed, and the safeguards to protect the independence and integrity of salaried defenders, to which I shall return in a few moments, will, I submit, be more than adequate to preserve the perception and reality of justice.

As for the questions of the noble Lord, Lord Kingsland, about competition and quality, salaried defenders will provide a competitive spur for private sector lawyers and a benchmark to assist the commission to secure value for money—that is, the best possible combination of quality and price. In our previous debate the noble Lord, Lord Hutchinson of Lullington, inferred from this argument the entertaining but mistaken image of a Treasury spy reporting on barristers who waste public money in court. It may help the House if I explain that point in a little more detail, since perhaps it has not been fully understood up to now.

The legal services commission will be responsible for procuring high quality criminal defence services for people who need them. It will also have a duty of seeking the best possible value for money. It will do this, for the most part, by negotiating contracts with lawyers in private practice. The commission will be in a much stronger position to perform that function effectively if it provides some of the services itself. That will give it a clearer and more detailed understanding of what is involved in providing a quality service, how long it should take and how much it should cost. As a provider, the commission will be able to negotiate with more knowledge and authority than if it were solely a purchasing body.

I turn now to what I think are the two main underlying arguments against salaried defenders: that they are inevitably of poorer quality; and that they are inadequately independent and will collude with the prosecution.

In the last analysis quality depends on adequate funding and proper training and support for the lawyers who provide the service. That is equally true whether the service providers are employed, contracted or working at prescribed rates or fees. The criminal defence service will be adequately funded and will have a career structure for its advocates which will ensure that they have regular and appropriate training and support. The Bill requires me to provide the funding that the legal services commission needs to fulfil its duty to provide the advice, assistance and representation required by suspects and defendants in the interests of justice.

Next, I address the need for independence. I have said repeatedly in our debates that I do not accept that a lawyer's professional independence and judgment depend on whether his status is self-employed or employed. I shall not weary the House by rehearsing all the arguments again. But I point out that salaried defenders will not work for the Crown Prosecution Service; they will not even work for the Crown. They will work either for the legal services commission, which will be an independent, non-departmental body, or for bodies established by the commission.

They will be employed as criminal defenders, and I have no doubt at all that, as such, they will dedicate themselves to defending their clients with the same professional skill and judgment, and the same independence, as would barristers or solicitors in private practice. There is simply no danger of collusion with the prosecution and perhaps less risk of an appearance or perception of collusion than where two barristers from the same chambers appear on opposite sides.

All salaried defenders employed by the commission will be operationally independent of the rest of the commission. They will be organised in a separate unit or units and will not have responsibilities for any of the commission's other functions. They will report to a senior lawyer responsible for managing them in a way that respects and protects their professional integrity. I draw attention to this last point in particular in answer to the question posed last time by the noble Lord, Lord Wigoder. A barrister or judge concerned about the competence or behaviour of a salaried defender would be able to make informal representations to the senior criminal defender at the commission, just as he could, in practice, to the head of chambers of a colleague in private practice. In exactly the same way in the case of the Crown Prosecution Service, he could make representations to the Director of Public Prosecutions or the Attorney-General.

Commons Amendments Nos. 30B and 30D are intended to give a slightly better flavour of the fact that salaried lawyers will be employed specifically as criminal defenders. Rather than saying that the commission may itself provide advice, assistance and representation, the amended Bill would say that the commission could employ persons to provide these services.

Lawyers in our country are rightly proud of their independence, but that independence flows from their membership of a profession and their obedience to the ethical rules which their profession enforces—not from the way in which they are paid. I believe that it is, to more than a little extent, offensive to the many thousands of employed lawyers to assert that the independence needed to advise and act for a client exists only among those in independent practice in the private sector.

The role of your Lordships' House is, essentially, as a revising Chamber. Perhaps I may say that that role was played to a very high order in the passage of this Bill. The Bill is replete with improvements made either in your Lordships' House, or in the other place following suggestions first made here. The purpose and objectives clauses for the community legal service and criminal defence service draw heavily on the principles clause proposed by the noble and learned Lord. Lord Lloyd of Berwick. The report of the Select Committee on Delegated Powers and Deregulation led to the substantial package of government amendments to the powers of the Lord Chancellor to give directions to the legal services commission. These amendments achieved a better distinction between those substantive matters which should be subject to further approval procedures in this House and another place, and those matters of an administrative or budgetary nature. At Third Reading I stated:

"I believe that the House is now broadly content that the parliamentary procedure attaching both to my powers and the legal services commission's funding code are appropriate".—[Official Report, 16/3/99; col. 690.]

I take the opportunity to repeat that I believe that that is broadly so.

The improvements did not stop there. Clause 16, the code for salaried defenders, was inspired by the noble and learned Lord, Lord Ackner. The new clause on litigation funding agreements owes its existence to the persistence of the noble Lord, Lord Goodhart. There are other improvements of substance and drafting by the score throughout the Bill, from Clause 1 about the membership of the legal services commission to the clause clarifying the independence of justices' clerks in Part V.

At the outset of our debates in Committee (col. 487), I promised not to adopt the obdurate approach which we had seen in time past, where the Front Bench was unwilling to accept manifest improvements to Bills under consideration. I described that approach as destructive of the raison d'être of a revising chamber. I hope that I have been true to my word, and can claim some force in saying that this Bill, in its current state, is one in which this revising chamber can take some pride. I submit that to thwart the twice-expressed will of the elected chamber on the issue now before us would be contrary to the raison d'être of a revising chamber. It would bring discredit to this House on an issue where par excellence the will of the elected chamber really should prevail. On the basis of those explanations and arguments, I commend to your Lordships the amendments.

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 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 banisters, 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 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.

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?

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.

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.

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 cart 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 stale 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 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.

My Lords, in the words normally associated with a dying declaration, I have a settled, hopeless expectation that the Government will inevitably get their way. But I should like to record my personal dismay at the Government's dismantling of our system for the administration of justice as we know it.

There is no demand; there is no need for a state criminal defence system. Why therefore is it being foisted upon us? The answer, I fear, is not a surprising one. It is because the Treasury wants it, and the Treasury wants it, in the words of my noble and learned friend the Lord Chancellor, because it provides a means to assess whether value for money is being achieved. What goes into "value for money"? Where does justice feature in that concept? I fear it features very little.

The idea behind the Commons amendment is to establish that a state system is cheaper—that is what "value for money" in the Treasury approach means. If it is cheaper, what will happen? There will be no justification in that situation for the state criminal defence service existing alongside the private service. It will be the means of dealing with legal aid.

I referred to the "dismantling" of our system. Perhaps I may refer to the same process in regard to the Crown Prosecution Service. That is being imposed not out of a theoretical desire to give rights of audience to lawyers who are employed—there is no need for that; there is no demand—it is again to see whether it can be established that the employed lawyer, under the employed system, can provide better value for money, which merely means the Treasury concept of it being cheaper. If it is, there will not be any exception to the CPS doing all the prosecution work; and it is not only the CPS; it is also the government employed lawyers in their specialities; for example, Customs and Excise and the Revenue. The Treasury says it will be cheaper to employ them than to go outside.

I come now to the rights of audience where the position is the same. My noble and learned friend the Lord Chancellor was at pains to point out that, despite solicitors in private practice for the past five years having had the unfettered right to appear in all the High Courts so long as they pass the simple requirements of the Law Society, only 1 per cent of solicitors in private practice availed themselves of that advantage. We were provided with the explanation. First, they were not very good examinees. I do not blame them. Why should they be? They were not trained for advocacy, which is a specialist function. No doubt GPs would fare the same way if they were tested to be brain surgeons. Secondly, the solicitors found the work a disturbance to their methods for running their practices. It takes time to research a problem. It is cheaper to farm it out to the Bar.

The listing system can be accommodated by the Bar, which can take the rough with the smooth, but with solicitors there was too much rough and too little smooth. The quantity of work available to them was too small. That is what the Lord Chancellor's own advisory committee discovered through two universities retained to do the research. That information does not feature anywhere except in a long article by Professor Zander. We would not have heard about it but for that article.

Why should matters change? They should do so for two reasons. First, it has been made somewhat easier for the city solicitor who does not appear in the county court or police court to be allowed to qualify for advocacy rights. Much more to the point, advocacy will be forced upon the reluctant solicitor. The block contracts that will be the manner of retaining solicitors will be from start to finish and include advocacy. Of course a solicitor can contract out of the advocacy if he is so minded but that would cost him money—and block contracts will be highly competitive. It will not be a satisfactory financial situation if the solicitor contracts out. He will therefore avail himself of the audience rights.

The rights of audience imposed that way will produce a cheaper system. Block contracts will turn out to be cheaper than a contract with solicitors to do their side of the work, with the engagement by solicitors of others in cases that the Bar now does in practice although it has no entitlement solely to do so. The rights of audience will be another dismantling of the profession designed to be cheaper.

Your Lordships may say that all that is a bit far fetched, but I remind the House of the aetiology of the conditional fee, which was introduced by my noble and learned friend Lord Mackay of Clashfern when he was Lord Chancellor. He did not introduce it other than on the basis that regulations would fill in the details of what the arrangement would cost and so on. He told us in Committee that in Scotland the conditional fee was operative but there was no mark-up or increased fee for taking the risk. He thought that a moderate increase of 5 per cent was all that would be necessary. On that prospectus, power was given to enable the conditional fee system to exist which had hitherto been looked upon as contrary to public policy—largely over the conflict it raised between solicitor and his client.

That prospectus was false because 5 per cent became 10 per cent. That was not good enough so 10 per cent became 20 per cent. That was not good enough so it was multiplied by five, contrary to the Lord Chancellor's own advisory committee, and turned into 100 per cent. The noble Lord, Lord Mishcon, with that shrewd insight for which he is well known—said, "You must not use the conditional fee to prejudice and cause delay. It must not be open to the authorities to say that this is a case where one could get a conditional fee system up and running and there should not be legal aid". That provision to safeguard legal aid was put in statutory form in the Courts and Legal Services Act 1990.

What has happened with a change of government? It is not that the conditional fee has been to some extent modified but the conditional fee is essentially to do away with legal aid in all personal injury cases and others. That has been allowed by regulations or orders made by the Lord Chancellor—not by primary legislation—in the teeth of resistance by the Government to monitoring exactly what is happening. Risk evaluation was referred to by the one small investigation undertaken by a policy institute. Risk evaluation was rightly queried because in personal injury cases, it is common ground that the success rate is more than 90 per cent. The risk evaluation on the short test that was made showed that clients were being charged not 10 per cent or 20 per cent but close to 50 per cent. I wager that the majority of those cases did not come to trial, for the simple reason that they were observed at an early stage to be open and shut.

If the Government are prepared to use conditional fees in the manner that I have suggested, that is the clearest possible demonstration that, given the fascination with achieving something cost-effective, the evaluation is likely to be made without a proper introduction and assessment of justice. That is not what the Treasury is good at. For those reasons, in the words of the classicist, 0 tempora 0 mores.

My Lords, I rise to query one implication of what I understood the noble and learned Lord, Lord Ackner, to be saying. I have almost always found myself to be in agreement with him whenever I have heard his silver-tongued eloquence in the House on these matters in the past.

My concern is the implication, which I hope he may be willing to disavow, that the quest for value for money is inherently misconceived because it is merely a euphemism for a loss of quality for the sake of cheapness. Anybody who has looked in detail, from outside and inside, at the criminal justice system will agree that in some significant areas it is seriously underfunded but that others—not least criminal defendants—do not get value for money in that the interests of justice and could be equally well served at less cost. To the extent that that is so, and to the extent that the noble and learned Lord the Lord Chancellor believes that the Government are introducing measures which will reduce cost without impairing standards, it seems to me that that is something which, in principle, all Members of this House ought to be willing to support.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30C, to which I spoke when introducing Amendment No. 30B.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30D, to which I spoke when dealing with Amendment No. 30B.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 30E and 30F en bloc, to which I spoke when dealing with Amendment No. 30B.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 31C and 31D en bloc, in lieu of Commons Amendment No. 31. When we last debated this Bill, the noble Lord, Lord Thomas of Gresford, tabled a Motion that this House should disagree with the Commons in their Amendment No. 31. No doubt it was inadvertent, immediately after his group of then successful Motions about salaried defenders, that he moved the Motion without speaking to it. I do not know whether he would have pressed it if he had first heard the explanation of Amendment No. 31, which I subsequently gave to the House. I imagine that he is as surprised as the rest of us to find that this issue is still before us.

These amendments relate to Clause 15, which establishes the duty of the commission to fund representation, sets out the means by which it may do so and provides powers to limit the extent to which the defendant may choose his or her representative.

It is right that defendants should be able to choose their representative, not least to promote their confidence in the criminal justice system. Clause 15(7) enshrines this principle. However, a completely unrestricted choice would not be practicable nor desirable. Subsection (8) therefore contains powers to limit that choice.

Amendment No. 31 sought to extend those powers in order to ensure, as far as possible, that a person was represented by the same lawyer throughout the case. One of the fundamental weaknesses of the present criminal legal aid system is its fragmentation. This can lead to help being given under several different parts of the scheme in a single case: green form advice, advice and assistance at the police station, advice from the duty solicitor at the magistrates' court and a full legal aid order for representation in court. That produces duplication and delay as well as unnecessary cost.

Amendment No. 31C, like Amendment No. 31 before it, is central to our plans to eliminate these deficiencies in the future. It is a power to make regulations providing that an individual should stay throughout the case with the lawyer he first chooses unless there is a good reason to change. Once an individual has chosen an adviser, typically when being questioned by the police, the taxpayer should only have to pay for another lawyer to take over the case, necessarily repeating a good deal of the work that has already been done, if there is a good, sound reason for a change. An example would be a conflict of interest between clients.

Perhaps I may explain how we envisage the system working in practice. A person being questioned by the police will be able to select his or her adviser from any firm holding a contract with the legal services commission, or, perhaps, a salaried defender. Suspects would be shown a list of all firms based in the area and be informed of the implication of their choice. If the chosen adviser were not available, the individual would use the duty solicitor for the time being. But the duty solicitor would not be considered to have been selected, as a preference had been expressed for someone else. If an individual declines to express a preference, he will be advised by the duty solicitor and deemed to have selected the duty solicitor as his representative.

Amendment No. 31C reinstates the power provided by Amendment No. 31, but in a way that makes clear that it is only intended to apply to a chosen adviser. The power provided by Amendment No. 31 could have been applied to any provider of advice and assistance; it did not distinguish between those who had been chosen by the suspect and those providing advice only because the chosen adviser was not available. The intention was for the regulations to make clear that a person advised by the duty solicitor would not be deemed to have chosen the duty solicitor as representative if a different choice had been expressed.

Amendment No. 31C is a more limited power that applies only to chosen advisers. Amendment No. 31D provides power to define what constitutes a choice. This is necessary to deal with the situation of an individual who declines to express any preference. The regulations would provide that someone who remained silent, having been informed of his right to make a choice and the implications of not doing so, would be deemed to have chosen the duty solicitor who actually advised him. This is necessary to prevent people playing the system by refusing to express a preference, accepting the advice of the duty solicitor, and then seeking to exercise their right to choose a different representative when the case reaches court, probably causing the case to be adjourned.

I have said repeatedly during the passage of the Bill that the public will receive quality-assured services. People requiring criminal defence services will benefit from performance standards that will be incorporated in all contracts. These will apply equally to salaried defenders. They will include targets for the proportion of requests to attend at a police station, having been selected by the individual, which are met by the solicitor's firm or the offices of the salaried defender. All firms with criminal defence service contracts and any salaried defenders will take part in the duty solicitor's rota. Therefore, there is no reason to suppose that advice and representation from the duty solicitor in any sense constitutes a second-class service.

Perhaps I may add that we intend to consult on the details of all the regulations under Clause 15, including regulations about continuity between advice and representation under these amendments, as well as the details of the regulations that I mentioned when dealing with the previous group of amendments under Clause 15(8)(d) and (e). Regulations under Clause 15(8)(e) will define circumstances in which a change of representative is justified such as a conflict of interest between clients or a genuine and well founded loss of confidence or other breakdown in the lawyer/client relationship. Regulations under Clause 15(8)(d), dealing with the permitted number of representatives, will define the circumstances, including all jury trials, when a defendant may choose a specialist advocate as a second representative.

My Lords, my inadvertence on the previous occasion, for which I must apologise to the House, has had the benefit of clarifying and extending this clause and of introducing a degree of flexibility which it did not previously have. What concerned me was that a person who chose a lawyer under the clause as it was previously drafted was then fixed with that lawyer whether he maintained confidence in him or whether conflicts of interest had arisen. I am most grateful to the noble and learned Lord the Lord Chancellor for accepting the points which have been made to him on this matter. I have no opposition to the amendment that is put forward.

My Lords, I beg to move that the House do not insist on their Amendment No. 56B to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 56C in lieu thereof.

In bringing Amendment No. 56C before your Lordships' House the Government are fulfilling an undertaking given on the previous occasion on which this House considered this Bill. At that time we had before us Amendment No. 56B, which was moved by the noble Lord, Lord Goodhart. On that occasion I said that the effect of Amendment No. 56B would have been to broaden the effect of Amendment No. 56 so that it excluded from the scope of this legislation not only non-contentious business agreements, but any form of fee agreement enforceable at common law, typically conditional fee agreements with no uplift—often known as Thai Trading agreements—and gave reasons, which I will not now repeat, as to why that would be undesirable.

However, the noble Lord, Lord Goodhart, made it absolutely clear that all he was trying to achieve was to preserve the position of solicitors entering into Thai Trading agreements in respect of proceedings under Section 82 of the Environmental Protection Act 1990. If I may say so, this is another area of this Bill where the Government have both listened and responded positively. Section 82 allows people aggrieved by a statutory nuisance, for example inadequate housing, to seek an order for that nuisance to be put right. These cases are heard in a magistrates' court and are technically criminal cases, although they are in substance brought to enforce a civil right. Conditional fee agreements are not permitted in criminal cases under the existing legislation, and that position is maintained by the Bill. But as a result, the effect of bringing Thai Trading agreements into the scope of the legislation so as to be able to regulate them in the consumer interest was to outlaw them in these Section 82 proceedings.

I said that after careful consideration the Government accepted that in this area an exception should be made to the general bar on using a conditional fee agreement in a criminal case. As I say, essentially these cases are about enforcing civil rights; and many of them are about the right to a decent standard of housing, an issue to which the Government attach a very high priority as part of their drive to combat social exclusion. I therefore suggested a somewhat unusual—perhaps completely unprecedented—course, which caused a little merriment around your Lordships' House but none the less, or perhaps because of that, found favour with your Lordships. I proposed that this House accept Amendment No. 56B, warts and all, for tactical purposes in order to make it possible to bring forward in another place an alternative amendment which dealt squarely with an exemption for the Environmental Protection Act. This is what Amendment No. 56C does. It amends Section 58A of the Courts and Legal Services Act 1990 so that proceedings under Section 82 of the Environmental Protection Act are exempted from the ban on the use of conditional fees in criminal cases.

I trust that Amendment No. 58C will meet with your Lordships' approval, and I would like to put on record my gratitude to the noble Lord, Lord Goodhart, for giving us the opportunity to make this useful amendment.

My Lords, Amendment No. 56C, in our view, brings in a small but distinct improvement to this Bill. In that respect it is the last of many improvements to the Bill which have been made both in your Lordships' House and in another place. I join with my noble friend Lord Thomas of Gresford in paying a tribute—it is certainly a genuine tribute—to the Government and to the noble and learned Lord the Lord Chancellor in particular for their willingness to listen to the arguments to make improvements to this Bill, some of which have been very much more important than this amendment.

I have to say that we are left with a number of serious concerns. One of those was aired in the debate earlier this afternoon; others have been discussed at length at earlier stages of this Bill. As Amendment No. 56C is certainly in our view an improvement to the Bill, all I need to say at this stage is that we are happy to welcome it.