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

Lord Woolf Excerpts

Wednesday 11th December 2013 Lords Chamber

Having put on record my concerns and those of others about the effects on our renowned legal system, the regulator’s main difficulty would be eased if the Government made the changes wholly prospective, so that they applied only to instructions newly offered after 2 December. Then, at least, the strictures about breaches of contract and the rule of law will be minimised. I urge the Government to think again about the date of implementation. Will the Minister assure us that he will do so and tell the House how much it would cost to extend the date of activation so that the new fees apply only to instructions first offered after 2 December? I urge the ministry to consider the legal system and its international reputation with due care. Do not kill the goose that lays the golden eggs.

[Lord Woolf (CB)]

My Lords, I must start by making a disclosure about my judicial career, my career at the Bar and the fact that, since I retired as a judge, I have been a non-resident member of a barristers’ chamber. Of course, in accordance with the rules within this jurisdiction, a retired judge cannot go back to the Bar.

I congratulate the noble Lord, Lord Carlile, on bringing this Motion and on the way he presented it. I draw significance from the fact that the House has heard two speeches from people who, in very different ways, are able to talk about the issues before us, which have been rightly described as highly relevant to the administration of justice and the rule of law.

Having said that, I should make it clear that I also support what the noble Baroness, Lady Deech, has said from a different aspect, except that I would draw a different view from hers as to the benefits of merely postponing the date of implementation. I suggest that that would merely be sticking plaster on a very gangrenous wound. Something much more is required of the Government if they are to recognise the responsibilities that they have to the rule of law, and to which I know that the Minister attaches great importance.

Equally, I understand why the Government felt that there was a need to take action to curb the costs of the cases with which we are concerned. However, in considering whether the action taken is appropriate, I suggest that we have to ask ourselves three questions. First, will the action proposed achieve its purpose—that being to save money? Secondly, is this action disproportionate in the way that it affects a particular section of the legal profession? Thirdly, does it create a serious risk of damaging severely the criminal justice system of this country? I suggest to the House that, judged by those questions, this proposal fails all three of the matters that I have referred to as requirements.

It is the third effect with which I am primarily concerned, although indirectly that involves consideration of the first and second questions that I have identified as well. We are considering here the most eminent practitioners in the field of criminal law in this country. The noble Lord, Lord Carlile, has painted a vivid picture of the sort of cases that we are involved in. It is vital for this country’s justice system that those most difficult and demanding cases are properly tried. If they are not properly tried the whole of our criminal justice system will be under a dark shadow, which this Government will have created without proper consideration of the information available, to the extent to which consultation has taken place. I say that having been in practice at a time when the Bar would, to fulfil what it saw as its obligation to justice, take on cases up and down the country for the princely fee of two pounds four shillings and sixpence, irrespective of your seniority. Eminent counsel took those cases and took their share of responsibility for that. From what I know of the Bar standards today, I have no doubt that they would do it today if they had to.

However, you cannot expect people to go into a profession, rise to its top and be treated to the imposition of an arbitrary cut of the scale proposed here without damaging the reputation of that profession. These people are not only those on whom we rely to conduct the most difficult cases at present; they are also those we rely on to be our great criminal judges of the future. We also rely on them, by the way they conduct their practice, to ensure that the Bar gets in its recruitment programme among the brightest and the most able youngsters going through our universities today. Each of the Inns of Court has programmes whereby the senior members of the Bar—the sort of members of the Bar I am talking about—visit universities and talk to the students who want to know whether they should come to the Bar and, if they do, what sort of work they should do. They want to know whether they should take the risk of coming to the Bar in the present circumstances.

Certainly, when I was doing that, I was always able to say to them, “You will have a profession which demands a tremendous amount from you, but you will have the satisfaction of knowing that you are involved in a profession where the public at large respect what you do and which contributes to producing a quality of criminal justice that is admired around the globe”. In those circumstances, they have continued to come to the Bar. Who, however, will be able to tell people to come to the Bar when they know that they will be dependent on a Government who apparently consider it appropriate to impose a cut retrospectively, as the noble Baroness, Lady Deech, indicated, on the profession? How can you do so, as a person who has the well-being of these youngsters who are thinking of coming to the profession at heart—I speak as the father of three sons who have come into the law—if you know that what we have heard about will be on the cards when it comes to their career?

There is very real reason for the Government to reconsider their approach in this matter. It is very important that they do so. If they do not, they will unintentionally cause serious harm to a profession that it will take years, if not generations, to undo. What is at present a profession that the brightest and most able want to enter, will be one that they will feel they cannot possibly enter because the risks of doing so are so great.

I have read, of course, the report of the statutory instruments committee. I note what it says about the Government thinking it will be possible to get people not out of the top drawer but from a lower drawer to do these cases. The Government may be right in saying that, but what will be the calibre and quality of those persons? I can say, on the basis of my judicial career, that, as the judiciary works in this country, it is dependent on the Bar. It is dependent on the Bar not only for recruits but for the help it gives to the judiciary to do justice. You do not save money just by fiddling with fees. If there is the need to create savings that the Government say there is, they should have taken action before to ensure that judges have the benefit of barristers who are paid not by the hour or by the day, but on a more sensible basis in respect of cases so that they have the same incentive as the justice has that cases should be disposed of expeditiously and not in the way that sometimes happens because of how our fees are structured. Reforms were possible. Cases require management, but it has to be possible for the management to take place economically.