Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013

Debate between Lord Mayhew of Twysden and Baroness Scotland of Asthal

Wednesday 11th December 2013 Lords Chamber

[Lord Mayhew of Twysden (Con)]

My Lords, I acknowledge that I have something to declare, which is that many years ago I used to conduct criminal cases as a member of the Bar. I recognise very well what the noble and learned Lord, Lord Woolf, was saying about the fee of two pounds four shillings and sixpence. The difference between the scenario that he described and my own was that he described people of the highest eminence accepting two pounds four shillings and sixpence as it was their duty. I was at the bottom of the heap—the opposite—and was very glad indeed to have it.

The debate so far has been of the highest quality and I shall be very brief as I do not wish to diminish the impact that it undoubtedly had on my noble friend who is about to reply. The trick that the Government have to fulfil is that they have to make provision to reduce the deficit, and must do so in a way that avoids unintended consequences. I believe that it is a tragic fact that the reduction of 30% that has been described this evening will have an unintended consequence. Fewer people will take the work and the consequence will play over to the task of reducing the deficit. It will increase the deficit for the reasons that high judicial authority has emphasised again tonight.

I want to add one additional circumstance that I can foresee. If you are doing a very long case which, as my noble friend Lord Carlile described, is one of high complexity, you become associated in the minds of instructing solicitors with that case—“Oh Mr Mayhew will not be available; he is tied up in this case which has gone on for months and with many more to come”. When you finish that case, you will find typically that there is no work left and you will have a long gap in your practice before you are instructed again. That will bear on the decision of the advocate as to whether to accept the fee that is offered. That point has not been made tonight, but it is one that is similar in character and perhaps easily overlooked.

The Secondary Legislation Scrutiny Committee, in its 18th report, has drawn attention to what has been said about these measures by three professional bodies. It has called for a more robust defence, and I look forward very much to hearing from my noble friend that the Government believe they have a more robust defence to the many points of criticism of profound weight that have been put before your Lordships this evening.

[Baroness Scotland of Asthal (Lab)]

My Lords, this has been an extraordinary but sad and rather sobering debate. I am grateful that, from the powerful opening by the noble Lord, Lord Carlile, until the noble and learned Lord, Lord Mayhew, sat down I have found no reason to disagree with one word that has been said, save that I shall make a few comments a little later to help clarify the views of these Benches for those who sit opposite. The reason I say “sad and sobering” is that we should be very clear that this is not a parti pris debate.

So far we have had the benefit of hearing from two former Lords of Appeal in Ordinary, one former Lord Chief Justice, the current regulator and now a very eminent member of the Bar and recorder. I declare my own interest as not only a member of the Bar, a recorder and deputy High Court judge, but someone who is in practice and who, although I have not taken legal aid criminal cases since leaving Government, certainly did in the past. The voices I have just spoken about are joined now by two former Attorneys-General of different complexions politically and, some would say, physically. This is something upon which those who are committed to justice and the rule of law and concerned about the quality of justice in our country have now spoken, and so far we have spoken with one voice.

It is very important to hear the echo of what has been said, because it is an echo of real alarm and concern. I was struck by the comments of the noble Baroness, Lady Deech, about the effect of retrospection, an issue I had intended to alight upon. I was struck by the description of the noble and learned Lord, Lord Woolf, when he talked about these provisions as “a gangrenous wound”. It is a description with which, regrettably, I wholeheartedly agree.

I was also grateful that mention was made of the Lord Chancellor’s responsibility in terms of his oath. Members of this House will be familiar with it, but I shall repeat it so that the House and others may be reminded of what the oath of the Lord High Chancellor of Great Britain is. The oath that the current Lord Chancellor swore was this:

“I … do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God”.

How does the Minister contend, on behalf of the Government, that that oath by the Lord High Chancellor of Great Britain is being discharged?

Let me help the House as to why I am concerned about whether the Lord Chancellor has taken that oath into account in bringing these orders forward. I know that when he gave evidence to the Select Committee he seemed to suggest that it was not possible to grant access to justice to all people at all times. That, if I may respectfully say so, is a fundamental misunderstanding of the Lord Chancellor’s role. It is his duty to ensure that there are sufficient resources so that access to justice for all people at all times can be equally made available. Moreover, the wounds that the changes proposed in these orders will inflict may so damage the availability of good access to justice that the cost will be very difficult to bear. There are those who say that they know the cost of everything and the value of nothing. Let us be clear: the value of our justice system is very high indeed.