One of the key debates during the first
part of this year has been how to balance the interests of justice
with the need to protect society amid a seemly ever-present threat
of terror attacks.
It is welcome to note that the recent Home Office paper on counter-terrorism
does not advance the controversial suggestion that the standard of
proof should be lowered for certain types of offence. It is entirely
right that convictions should continue to be based on proof of guilt
beyond reasonable doubt, and we as a Bar Council will continue to
argue that.
We recognise that the Government has a duty to protect the community,
but in doing so, we must not compromise the very freedoms we are seeking
to protect. It is wrong as a matter of principle to lock people up
without trial unless there is no alternative. The alternative is to
bring people to trial and to convict the guilty.
In our view, serious consideration should be given to allowing the
use of intercept evidence, to enable the prosecution either to prosecute
a case it could not otherwise prove or to strengthen a case where
there is already some evidence.
This debate has been going on against a background of major changes
in our constitutional arrangements.
We have welcomed the constitutional reform package presented in the
Government's Bill on the topic, but we have again and again urged
Ministers to take more time to listen to views on the detail.
As I said at the time, there is simply no need to hustle through the
provisions. Lord Falconer should have the courage of his convictions:
a man doing the right thing does not need to be a man in a hurry.
It is wrong to suggest that further consultation and debate would
blight the provisions. We want to see them confirmed and strengthened
through detailed debate and review.
We have been less welcoming of the Asylum Bill, which features the
controversial provision scrapping any right of appeal. The Constitutional
Affairs Select Committee issued a highly critical report on the Bill
and called for the removal of the so-called 'Ouster Clause' (clause
11 of the Bill), which would put an end to 16,000 asylum tribunal
appeals each year. Surely not all of those are without merit or merely
time-wasting.
Clause 11 is a disgrace. It is unfit for a democracy. It is incredible
that it is proposed in the UK. If the Bill were passed into law we
would, in effect, be saying that it doesn't matter in the UK if the
Tribunal acted unlawfully, without jurisdiction or unfairly.
Nicholas Blake QC represented the Bar at the select committee hearings
on the Bill. In a powerful condemnation of the proposals, he told
MPs:
'Our concern is that the proposed clause 11 to the Bill contains the
most draconian ouster clause ever seen in Parliamentary legislative
practice.
'It is a clauseconstitutional consequence. It is happening at a time
of constitutional turmoil where the common law principles of division
of responsibility between the executive and courts are being torn
up, and no new written constitution is replacing traditional values
and beliefs.
'This is a time when traditional institutions, that have served to
provide some measure of balance in the law making activities of the
executive and Parliament, have either been removed or are under threat
by the pronouncements of the present government, without sufficient
guarantees that their replacements will respect basic principles of
judicial independence and democratic accountability.'
A damning indictment, if ever there were one.
Moving to the equally important topic of public funding for advocates,
as I write this, I do not know if we have had a final answer from
Lord Falconer on putting right the gross errors and unintended cuts
in the graduated fee schemes.
Even if the unintended cuts were to be restored, there is still a
big fall-off in the value of graduated fees, and the huge cuts in
fees for criminal high cost cases, will hit the Bar very hard.
Reasonable fees are one of the pre-conditions for a healthy profession,
like good organisation, regulation and ethics, chambers that move
with the times, good clerking and sensible dealing with each other
when we are opponents.
Let us hope Government finally agrees to redress the unintended shortfall
in criminal and family graduated fees. The facts are so clear: Government
produced cuts when they did not intend to, despite our warning that
would be the result. They agree but have not put the cuts right.
Let us stand back a moment, and try to see where the Government is.
The first thing is to realise that Government is not monolithic.
We are faced with Government on at least three levels: the agencies
(Legal Services Commission and Crown Prosecution Services), the Department
for Constitutional Affairs and the Treasury.
The LSC is reasonably well disposed to the Bar. Its new Chief Executive,
Clare Dodgson, recognises that the Bar is strong and provides quality.
Coming from an NHS background, a key priority is a rationalised supplier
base - which means, for example, fewer, larger solicitors firms. The
consequences for the Bar are not easy to predict.
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The DCA has a major legal aid headache.
They are about £400 million over budget, and the budget for
legal aid was much higher than the previous year. Much of that is
nothing to do with the Bar and comes igh for the English language
- but we have not yet got them.
The overspend puts DCA in a weak position with Treasury. The Treasury
position is to accuse DCA of not being in control of its own spending,
and currently to refuse extra money. This has led to an impasse. We
can bang the drum in DCA's ears as loud as we like, but Treasury is
not listening.
I believe our own best line is to tackle the fees issue in a number
of ways at the same time. First, we will go on banging the drum. DCA
have an obligation to make good their word to the Bar. By failing
to pay appropriately, the DCA is putting the graduated fee scheme
at risk.
Secondly, we need to understand the wider funding issues as best we
can, with the fullest information we can get from Government. Thirdly,
we will do better if we grit our teeth and show that we are constructive,
for example by improving criminal pre trial procedures. If we can
concentrate work more rationally, that will help too.
Fourthly, we may be able to help make the case to Treasury that quality
counts when it comes to representation. This is a huge subject, but
the consequential damage and cost of poor quality justice elsewhere
must be huge: to the Court Service, NHS, police, Home Office, to insurance
bills.
'Closing the justice gap' is a Government priority, and it will take
investment as well as efficiency gains. We will do better by trying
to help on this than by walking away.
Government on all levels must realise that public service lawyers,
a group which includes the publicly funded Bar, need to have confidence
for the future. Unless we can trust Government to honour its obligations,
and unless the work brings a reasonable level of material rewards,
the sector will wither.
Diminished recruitment, loss of quality and service 'deserts' would
cost Government dearly in the end, aside from the pain for practitioners.
We must try to make these connections with DCA, and if we can, help
DCA make them for Treasury.
I often hear the complaint 'what does the Bar Council ever do for
me?' My answer to anybody who says that is 'come and join in, and
then you'll find out.' I want to see as many of you as possible during
the rest of my year as Chairman.
I am planning to see as much as possible of chambers at work during
the day, no doubt as well as some socializing! We want to hear your
suggestions and concerns first hand, but also be able to discuss our
ideas on regulation, the impact of competition law, the future shape
and size of chambers, equal opportunities, how to encourage the spread
of good management ideas, how continuing professional development
should be handled and many other things besides.
The Bar Council will not win every contest, so be realistic in your
expectations of us. And, of course, we will not be able to agree about
everything. As Mr Lincoln of counsel said, 'you cannot please all
of the people all of the time'. But you can be sure of one thing:
we are on your side.
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