Select Committee on Home
Affairs Minutes
of Evidence
Examination of Witnesses (Questions 1 - 59)
TUESDAY 2 NOVEMBER 1999
THE RT HON THE LORD IRVINE OF
LAIRG QC, MR DAVID LOCK MP AND SIR HAYDEN
PHILLIPS KCB
Chairman
1. Good morning, Lord Chancellor and Sir Hayden. Thank you
for coming to see us. We want to start, if we may, by a canter over the changes and
reforms which have been put in place, specifically with the Community Legal Service (CLS). This has the
responsibility to assist in the co-ordination of local networks to provide information on legal rights and responsibilities,
advice based on a person's individual circumstances and assistance in resolving legal
problems. Can you
please tell the Committee how you see the Community Legal Service trying to ensure
that there is better access to legal services right
the way across the country, in other words that we get away from any postcode problems
within the Community Legal Service?
(Lord Irvine) First of all, may I start by congratulating you for
having assumed the Chairmanship in place of Chris Mullin. Second, you are absolutely right
to focus on the Community
Legal Service because it is right at the heart of our reforms. What I should like to
do, if I may, is just put it into a larger picture and then come straight back to the
Community Legal Service. What is important is to see the whole thing in the round, at any
rate as we see it. I
would be the first to admit that legal aid has not been the most popular public social
service. What
my party won the general election on was the proposition and the pledge that we put
schools and hospitals first, not legal aid first. What I want to be is brutally frank
with the Committee. Legal
aid is synonymous in the public's mind with lawyers' bank balances and the public have a
vision of restrictive practices, overmanning, overcharging, and, in high cost criminal
cases, fees which appear to be grossly high. The big picture about the Access to Justice
Act is that it will wipe out restrictive practices once and for all. Second, it will allow
legal aid work, where it can be efficiently done in the public interest by the private
sector at no cost to the taxpayer, to be done under conditional
fee agreements and that of itself will bring millions of people into access to justice
for the first time. By this means we intend to free up resources so they can be directed
at the real needs of ordinary people in their daily lives. That is where the Community
Legal Service comes in. The whole spirit of the Community Legal Service is partnership and
it will be partnership arrangements operated locally, underpinned by concordats. So you
started right at a core issue. Secondly, to go over as far as possible to contracting, so
far as possible at fixed prices, especially for professional lawyers, at fair
prices for quality assured legal work for the benefit of consumers. So
lawyers are not going to come first but consumers are going to come first. Finally —and
this is all I want to say by way of opening—will this make a difference to the overall
pattern of provision of legal services? Of course it will; that is what it is all about.
The object is to ensure that people know where to go to get the help they need, people are
entitled to be assured when the state spends public money on them that it will go on
quality assured legal work. A good example of that is when the state funds people's cases
say in medical negligence cases. The state
should not point them in the direction of a lawyer who does not have the expertise to
do the case, they should point them in the direction of people who are quality assured and
experienced and capable of taking on the defendants' insurers, lawyers who are highly
expert and highly experienced. That is the big picture. It may be that you would like to
ask me specific questions about where the Community Legal Service is involved.
2. Yes, may I come to that. What
I have in mind are not simply rural areas and inner city areas but what we would call the
outer city areas, the big estates on the edge of cities, many left now with no banks,
some with post offices gone or under threat, not because of usage but because of danger to
staff going in and out of those places. How is the Community
Legal Service actually going to monitor what is happening on the ground to identify
need and do its best to ensure that this need is met where it is best met, nearest to
where people live.
(Lord Irvine) First of all of course everybody in this room knows that this is a giant new undertaking and
everybody knows that Rome was not built in a day. We have a very clear idea of what we
want to achieve and how we want to monitor things. Let us start with the "as
is". What
we have at the moment is a geographically fractured, uneven spread of legal services
both provided by professional lawyers and provided by voluntary services who are hugely
important across the country. So if a basic initial point, which I think was implicit in
what you were saying, is that the geographic spread is not even because places are not
even and they all have different needs, then that point is well taken and well
appreciated. The
second thing I want to say is that the Community Legal Service is a Labour Party manifesto
commitment and we are determined to make it succeed. The Community Legal Service is
going to be launched nationally in April 2000. What we have started off with is six
pioneer areas where there are partnerships which are local networks who are concerned with
co-ordinating local funding, finding out what local provision there is and mapping where
the present resources are, mapping where they are going and trying
to identify unmet need and then addressing questions once you identify where the unmet
need is.
3. Is your department
doing this monitoring at the moment?
(Lord Irvine) No, this is being
done at the moment by pioneer partnerships. I will tell you about the pioneer
partnerships in a second. My department of course has complete oversight of this and what
we are going to be doing is producing by April 2000 guidance for the whole country which
my department is overseeing, which is drawing from all the experience of these pioneers. I
hope you will think the pioneers represent a kind of cross section of the country. The
pioneer areas are Cornwall, Kirklees, Liverpool, Norwich, Nottinghamshire and Southwark.
These are urban areas, semi-urban areas, rural areas and we are trying to develop models
of best practice. There are also associate pioneers and I think these are 44 in number.
What are they actually about? Needs assessment first and foremost. Map the existing
provision of services. Identify the gaps.
Plan how to meet the gaps and, very important, work out referral networks so that people
are not bounced when they go along to one place from one bureaucratic box to another so
that they just get fed up and grin and bear it. Therefore the point is referral networks.
Also we hope that by developing concordats within each relevant area—and these areas do
not have to be confined to particular local authority boundaries in particular areas the
right answer might be to have networks which straddle these governmental boundaries for
just the reasons you were indicating—we
hope that the concordats, the agreements which these bodies will enter, which all the
partners in the partnerships will enter into, will amount to undertakings each makes
to the other so that we have some yardsticks of what each is agreeing to do. You are also really asking me about availability and what we aim to do is to have at
least one third of the population—I hope more—but at least one third of the population
covered by partnerships by autumn 2000, two thirds of the population by spring 2001 and 90
per cent by the beginning of 2002. One thing is that
there is enormous enthusiasm around the country for this. In the various local visits I have made to the voluntary sector and many parts of it, I
have been really struck by the enthusiasm, the commitment, MPs, councillors, voluntary
workers, everybody on the ground to make a go of this. What is very important is to
capitalise on it.
4. I can certainly confirm the enthusiasm for
this, especially in the voluntary sector. You have said that a common accreditation scheme
is going to anchor the Community Legal Service. Could you tell us
please who is going to award the quality mark and monitor the quality of the service
provided?
(Lord Irvine) There
is a quality task force. Who are the task force? They are made up of all the major advice
sector umbrella bodies. They are made up of the major funding organisations, so they
of course involve the local authorities they involve consumer groups, they involve the
legal profession. They were set up earlier this year and their objective is to develop
criteria for a Community Legal Service quality mark. What
they are not doing is doing this completely off the top of their heads. What they are
doing is drawing from the many other quality marks there are around which providers find
quite confusing and it is going for a uniform quality mark. Consultation on this area,
developing this quality mark, ended in October of this year. I hope that before the end of
the year proposals for a quality mark will have come to me and I hope that I,
with the assistance of my department, and with all the consultation which will have lain
behind the proposals which are coming to me, my target for myself is to approve the
proposals by the end of the year.
5. Once that is done who would actually award the
quality marks?
(Lord Irvine) As I understand it, the quality marks would be awarded by
the quality task force. It may be by the Legal Services Commission when it is up and
running and that would probably make sense.[1]
6. Will you make this clear? I presume you are
going to have some response to the recommendations and it might be appropriate at that
time to make clear to people just exactly when the scheme has been agreed and who is going
to do the awarding.
(Lord Irvine) Yes, it should be made quite clear who is going to do the
accrediting, but this quality mark should be a benchmark of quality which should command
great confidence because everybody who is really involved on the ground in all this has
contributed. I agree that the natural person to accredit would be the Legal Services
Commission or some more specialist body within the Legal Services Commission but it will
lead to a common approach to standards and it will give funders confidence which is very,
very important.
7. We have had some concerns expressed to us by the
Citizens' Advice Bureaux who are wholly in favour of this but they have a separate and
distinct role, campaigning role. Are there going to be some safeguards to protect the
advice sector, including the CAB, in this kind of work as well as that which they will
carry on as part of the Community Legal Service? There are differences there, are there
not, which should be respected?
(Lord Irvine) Certainly we respect both the values and the objectives
of the voluntary sector. Their co-operation is critical for the success of the Community
Legal Service. For example, we respect their free-at-the-point-of-delivery ethic. I
entirely recognise that they have a campaigning function and good luck to them, the best
of luck to them because their object is to secure better funding for what they do. In
all my knowledge of them, they are not short of volunteers. What they want to
do however is to have the facilities and the resources to train the willing volunteers to
be effective. I have no doubt at all that it is well within the objectives of the
Community Legal Service for them to continue their campaigning role. I see no conflict at
all.
8.
May I take you finally to alternative dispute resolution? A very, very important part
of this package in my view. Your department has asked for more information about how this
is working out. What are you actually doing to obtain this information? There is a
feeling, particularly in the voluntary sector, that there is a lot of scope for this, to
resolve people's problems short of going into court.
(Lord Irvine) As a result of a decision which I
made we now of course make legal aid available for mediation. It is very important. We
have to keep mediation in proportion. It is very important to encourage it and there are
particular areas where it deserves to be so strongly encouraged. One of course is the
family area. It is critical there; a great deal can be achieved there. If you were to ask
me what the classic area is for promoting mediation, it is in any area where the parties
have to have a continuing relationship. Even when people divorce they have a continuing
relationship of necessity for the benefit of the children of the marriage. So mediation
and when I said a moment or two ago that we must keep mediation in proportion I do not
mean by that for a single second that it is not an excellent thing and preferable to a
litigated outcome when it can be achieved. What we have done is that we have published a
discussion paper on it, we are planning pilot schemes and we are evaluating research in
other common law jurisdictions. There has been a pilot in the central London County Court
for example. I do not have the figures immediately beside me but a high level of
satisfaction was expressed by those who went for mediation and a very low level of people
who wanted to go to mediation and maybe it was as low as 11 per cent, but that is off the
top of my head. I remember being struck by the small percentage of people who wanted to
have anything to do with it, combined with the high percentage of those who were quite
pleased with it when they had it. What that shows is that we have to develop information
about mediation and that people have to have confidence in mediation and that we have to
develop systems for ensuring that mediators are properly accredited. One of the things we
have to remember is that if mediation does not turn out to be the kind of panacea we might
all like it to be to a greater extent, then all we will actually have done, is created a
new costly tier to no advantage. You have to proceed very carefully. Evidence of my own
personal commitment to mediation is that I ensure that in the new unified rules for the
County Court and the High Court which, as you know, are principally aimed at bearing down
on the worst sins of the legal system, cost and delay, I actually paradoxically built in a
little bit of delay so as to give an opportunity for mediation. The courts now are
willing, even though they are cracking the whip over the parties, to get on with the case
at the speed the courts want and not at the speed the parties or their lawyers might want.
We still have made provision, basically putting it at its shortest, for a month's
adjournment to enable people to give mediation a try.
9. You mentioned the importance of marriage and the family in this. Can you tell us when you are likely
to respond to the recommendations of Sir Graham Hart about the implementation of section
22 of the Family Law Act? This is funding for the marriage support agencies and there are
many of them awaiting your decision on the recommendations.
(Lord Irvine) Very, very, very soon is the answer.
10. Before the
end of the year?
(Lord Irvine) Yes; certainly. I have already indicated that I am
favourably disposed to this. I have already said that in terms. Across government—again
off the top of my head—about £4 million per annum is spent on marriage support and the
various agencies, the names of which we all know, but the great majority of that comes
from my department, about £3 million. I am hugely in favour of it and there will be a
positive response.
Mr Stinchcombe
11. May I confirm that I
have an interest as a barrister? At the Bar Conference in September 1996 you said of
legal aid that cost capping "... was unattractive in principle, because legal aid
would cease to be a benefit to which a qualifying individual is entitled. It would ...
become a discretionary benefit ... that would have to be disallowed when the money ran
out, or when another category of case was given preference". Then, during the
committee stage of the Access to Justice Bill in December of last year you said "I
operate within a controlled budget. The truth is that the only money that is left for
civil legal aid is what is left over out of the budget after the requirements of criminal
legal aid have been met". Am I right in detecting a degree of tension between those
two statements? Have you not caused to occur that which you said three years ago was
unattractive in principle?
(Lord Irvine) First of all, the plain facts of
life within which I have to operate, although I could wish that I had a magician's
wand to change the plain facts of life, is that criminal legal aid is guaranteed by the
state under conventions to which it is party. I do not think that anybody round this table
would take the view that if the state takes people to court and they can end up losing
their liberty the state does not have to provide them with proper legal services to defend
them. I should be very surprised if that were not a principle which we have all accepted.
That does not, however, mean that I sit back complacent at overcharging in the criminal
defence area. The fact that this is a high priority does not mean that
it must have its priority status abused by being milked by lawyers. I have to bear down
and you are quite right, very largely for the benefit of the civil legal aid budget, but I
had to bear down very, very hard indeed on overcharging on criminal legal aid. Yes, if I
fail there will be less money for civil legal aid. These are the facts of life within
which I operate. I do not believe that the money is going to run out in any particular
year. If that were to happen, then of course I can always go to my Cabinet colleagues and
seek further resources. However, it is the duty of every spending Minister to live within
his department's means. I think that on the criminal front I will be doing a vast amount.
Basically the fact that one per cent of the cases swallow up 42 per cent of the budget is
a pretty outrageous statistic to everybody round this table and I am going to bear down
very, very hard on high cost criminal cases and the main engine of doing so is going to be
contracting. I could give you a great deal of detail about it but perhaps that would not
be to follow the course that the Chair has in mind; I do not know. These are my answers to
that. I also think that the Community Legal Service, if it succeeds—and I am determined
that it should succeed—will make a much more attractive plea to Government for new
resources than traditional legal aid has made because of the perception I mentioned at the
outset, that traditional legal aid feeds lawyers' bank balances. I started off by saying
that conventional legal aid was not the most popular of public social services. The
Community Legal Service will increase the popularity of legal aid considerably and these
are things that people who have to determine priorities in spending, schools, hospitals,
legal aid, have to take into account. I face really quite staggering figures on this.
Average payments in civil legal aid rose from £1,875 in 1993-94 to £3,239 in 1998-99, an
increase of 73 per cent and the number of people helped fell by 21 per cent; so much more
money to help fewer people. A similar pattern shows in crime.
12.
May I press you on a couple of implications of what you have just said? Bearing in
mind that in September 1996 you said that cost capping was unattractive in principle, and
bearing in mind that the CLS fund is capped, as I understand it—
(Lord Irvine) It is not capped. It is a controlled budget; I know
exactly the means within which I have to live and in fact for the three years of the
current spending round I will have available to me to spend more money than our
predecessors predicted would be spent on legal aid. This is not a state of affairs which
merits the description of cutting but it is a controlled budget and the view of the
Government is that I, in common with all spending Ministers, have to live within a
controlled budget.
13. Bearing in mind
the way in which it is controlled, is it right that if the criminal legal aid budget
overruns, the civil legal aid fund must necessarily be squeezed?
(Lord Irvine) The point is that if I have a given expenditure level,
and if any part of it overruns, be it civil or criminal, the other will suffer. It is my
job to ensure that they do not overrun. I cannot give any better an answer to you than the
ones I have already given, that I intend to bear down firmly through contracting at fixed
prices on the criminal legal aid budget and by these means I believe I will bring the
criminal legal aid budget down for the benefit of the Community Legal Service. One of the
reasons for extending conditional fee agreements to cover all kinds of litigation other
than family, is to enable the private sector to undertake at no cost to the taxpayer
certain categories of work which we have no doubt it will carry out effectively and so
free up resources which would otherwise go on the areas to be covered by conditional fee
agreements and allow us to redirect the resources in the direction of the Community Legal
Service. You have to see it as part of a plan and not merely look at the antithesis
between criminal and civil legal aid.
14. May I
press you on one further matter related to that issue? If your attempts to bear down
on the CDS fund are not as successful as you anticipate they will be, as I understand it
you have stated previously—during the Third Reading of the Act—that there was nothing
in the Bill which required an overspend to be made good from the CLS, and that your
colleagues would expect you to offset the overspend by making savings elsewhere?
(Lord Irvine) That is the very first position. That is almost a classic
position for the state of affairs that affects a Minister when he is overspending in some
area; he is expected to make good an overspend elsewhere. The trick is not to allow the
overspend.
15. Bear with me
a little while. Given that legal aid represents two thirds of your departmental
expenditure, it cannot be likely that the extra funds would be found other than from the
CLS if there is overspending by the CDS. Is that not right?
(Lord Irvine) I can look for savings everywhere but let me be the first
to admit to you that I will not have succeeded unless I hold down the Criminal Defence
Service budget. I acknowledge that but I am going to do it. Wait and see; wait and see.
Let me tell you what we are going to do. In April 2000 we will have the fixed price
contracts in the first high cost cases. In April 2000 we shall have new rates for criminal
cases. In October 2000 we shall have contracts for criminal defence and advice and
assistance in magistrates' courts. You will know that is happening when you hear the
squeals from the lawyers. You do not need me to anticipate it. In early 2001, we shall be
conducting pilots into salaried defenders. By 2002 all very high cost criminal cases will
be subject to contract as far as possible at fixed prices. By 2003 all Crown Court work
will be subject to contract. If you want to know what my secret for success is, it is not
much of a secret, it is just that lawyers cannot go on living their lives being paid by
the hour on a taximeter. We have to contract with them for prices. It is an old-fashioned
technique but it works.
16.
Does that not mean that whilst you originally said that cost capping was unattractive
in principle, in fact you have now come to see certain advantages with cost cutting?
(Lord Irvine) I think that everything I have been saying has been aimed
to persuade you and your colleagues round the table that I do not intend to allow the
money to run out for civil legal aid. If that were to happen, then I would be in a certain
amount of difficulty, but I can look for savings elsewhere in my department and I can go
to my colleagues. What I am doing is just saying to you what any spending Minister taxed
with these questions would say. We have to do two things. We have to live within our means
according to the priorities the Government have set, which I am afraid did not put legal
aid ahead of schools and hospitals—of course I am not really afraid; schools and
hospitals do come before legal aid for lawyers. Then it is my job as Lord Chancellor to
fight my corner for legal aid with my Cabinet colleagues in the future. However, I have a
strong belief that I will be better able to do that if I make a real go of the Community
Legal Service.
Mr Linton
17.
I wanted to come onto the question of funding by local
authorities. During the Access to Justice Bill committee stage, you set your face against
a clause that would oblige local authorities to contribute. I represent an area,
Wandsworth, where the local authority still does not give any money to its local law
centre, although it does of course contribute to advice agencies. Can you explain to the
Committee what will happen if there is a local authority which refuses to get involved in
a CLS partnership or provides inadequate funding?
(Lord Irvine) That is a very good question and it is one to which I
give a lot of thought myself. Let me just tell you about a decision of principle that we
took. You could of course have sought—I would have needed the agreement of my colleagues
in Government to it—at the time of the Access to Justice Bill to put a statutory duty on
all local authorities. We took a decision not to do so. That is not to say such a decision
might not be taken sometime in the future. We took a decision not to do so for the very
good reason that to develop a Community Legal Service really required wide ranging
Cupertino which I tried to describe to you on a voluntary basis. The view was taken that
we would get off on a very, very wrong note if we imposed a statutory duty because we
would not get these co-operative standing arrangements in place. We would not get a
Community Legal Service which would be a kind of model for what joined-up government means
if we started it under the lash of a statutory financial duty. I would hope that local
authorities will do what most of us would regard as their duty and if they fail to do so
then perhaps electors at the right time would draw the appropriate conclusions. You do in
fact focus attention on what is a very serious issue: where does the advice sector get its
funding? They will all tell you, and they will be right, that they are precariously
funded. I think the Legal Aid Board provides about £80 million a year, the local
authorities up and down the country provide about £130 million to CABs, to law centres
and the like. There are central government grants of about £20 million, mainly to NACAB
and to Shelter. The National Lotteries Charities Board makes £33 million available. The
London boroughs' grants amount to £28 million and this of course is to look at it from
government, not from charitable sources.[2]
There is no doubt at all that what is really needed is a crusade to persuade local
authorities to do more. That is where, if I dare say it in this room, local MPs and local
councillors come in. We are really trying as hard as we can to harness enthusiasm for this
project which I was pleased to hear the Chair acknowledge he is very conscious of from his
own experience.
18.
We will happily join you in the crusade. What if at the end of the day there are
unacceptable geographical differences in the provision of CLS? Will you then reconsider
using compulsion?
(Lord Irvine) Yes; yes, I would, certainly. However, it is not for me
alone. Let me tell you a graphic conversation I had recently in a tremendously well run
and impressive CAB. They were telling me about how so much of their work was with people
who got into debt. I asked how much good they did once they were able to help. They said
quite honestly a fantastic amount of good. I remember the conversation. You do one of two
things if you are in real debt: you either reschedule the debts or you go bankrupt which
is what it comes to. Their record of success apparently in this particular CAB—and I was
completely convinced by them—in rescheduling people was absolutely superb. In a sense it
is not all that surprising because we are talking about people of very ordinary means and
the creditors get nothing out of bankruptcy. You are far better to have a rescheduling of
debt. They told me quite dramatically that if they advertised the debt service they
provided in the local press they would be swamped with takers and they would not be able
to undertake the work. But they did undertake the work that came in the door so
effectively. I think that is a graphic example of what we are talking about.
Mr Russell
19. The
civil legal aid, the green form that people on the lowest incomes fill in. As I
understand it full legal aid is provided to those people who pass a means test and a
merits test. Does that also apply to people who may be on low incomes but have capital?
(Mr Lock) As I understand matters, there is a limit of £6,750 on
capital. I am not quite sure how the contribution system works but obviously the more
capital you have the more contributions you are expected to make.
20.
Who polices those who make the applications, that they are legitimate applications.
(Mr Lock) Both the applicant themselves and the solicitor have a duty
to provide the Legal Aid Board with a full disclosure of the applicant's financial
position. There are occasions when the other party to the litigation will challenge that
and make representations on behalf of the other party that the legally aided party has
other capital, has other resources, has other income. Obviously at that point they will be
investigated. It is fair to say that a reasonably high proportion—I am afraid I cannot
give you an exact proportion but a very high proportion—of those who are investigated
when an allegation is made of the legally aided party not being entitled on means grounds,
end up with the legal aid certificate being discharged.
21.
What about those cases prior to litigation or in fact which never get to litigation in
the early stages where legal aid may have been provided? How is the policing done? Is
there any system whereby people can check on whether somebody is in fact in receipt of
legal aid? Is there a public register, a public disclosure?
(Mr Lock) No.
(Lord Irvine) No. You are now on litigation and there is a legal aid
certificate which will be lodged with the court and I do not think there is any problem in
defendants' solicitors knowing that a party is legally aided.
22.
With respect, you are two jumps ahead. I am talking about prior to litigation where a
case may not get to court, where one of the parties may seek legal aid, gets legal aid and
then the solicitor's letter does the trick in their opinion. Is there any public register
which states that Bloggs got legal advice from solicitor X?
(Lord Irvine) I think not. It only arises at the point talked about.
Let me say, very often in practice this may not be the problem you think it is. People do
not normally suppress the fact that they have legal aid; they boast about it from the roof
tops because they think that it increases their bargaining muscle. The first thing that a
solicitor who got legal aid for his client to bring certain proceedings would do would be
to write and tell the other solicitor that that was so, because he is now funded and can
go forward. I think the problem may be the other way round.
23. May I
suggest then that you ought to consider having a public register from day one when a
person is in receipt of legal aid? I could suggest to you that there may be occasions when
people are getting legal aid in order to make the point they wish to make when they are
not entitled to legal aid.
(Lord Irvine) I shall certainly consider it. What is the objective?
24. I am
suggesting that it is possible for somebody to use the legal aid system. You are
trying to cut down on unnecessary legal expenditure and we all agree with that. I am
suggesting to you that it is possible for somebody to make use of the legal aid system to
which they are not legally entitled in order that just a threatening letter arrives at the
next-door neighbour's about a dispute. This happens. I would suggest to you that all MPs
are aware of neighbour disputes where lawyers are involved.
(Lord Irvine) I am certainly content to think about it. Quite honestly
I can see advantages and we can all see disadvantages as well.
Mr Howarth
25.
In answer to Mr Stinchcombe's first point, I was not quite clear whether you were
saying that the way in which you were going to deal with the whole question of avoiding
capping was to clamp down on defence costs. May I repeat the point Mr Stinchcombe made
which was that in 1996 as shadow Lord Chancellor you were of the view that cost-capping
was unattractive in principle, yet three years later you said you operate as Lord
Chancellor within a controlled budget. Were you aware that you would have a controlled
budget when you were shadow Lord Chancellor?
(Lord Irvine) We have come to our spending decisions collectively
within government. The significance that I was attaching to cost-capping in that speech to
which you are referring is that I was using that as a synonym for money running out so
that there would be no funding for a meritorious civil legal aid case. I regard it as my
duty to prevent that happening and I predict I will achieve it. Therefore the mischief
which I feared, namely a meritorious case not gaining the support that it deserves, will
not happen. We can bandy words about like cost-capping and controlled budgets and so on
but the objective is to see that all meritorious cases go forward.
26. You were not
trying to suggest as shadow Lord Chancellor that were you to be favoured with the job
in Government, there would be no capping and that you would make sure that the funds were
there, notwithstanding of course that the Chancellor would have control over your budget.
(Lord Irvine) In all my wildest dreams about this office, I never
thought it would give me a licence to print money.
27.
So you were not attempting to mislead people?
(Lord Irvine) Of course not.
28. Can we move now to the question of
contracting and also to conditional fee arrangements, both of which we discussed last
year? If we deal with contracting first, since 1994 the Legal Aid Board has developed a
voluntary contracting scheme called franchising. Under this arrangement, as I understand
it, specific firms contract to provide legal aid. The question has arisen as to whether or
not this system is denying litigants choice. How would you respond to that?
(Lord Irvine) First of all, I have to make what I really believe is a
very, very fundamental point and that is to ask you to focus on one of the major sins of
conventional legal aid. Traditionally under legal aid, if you had suffered the severest
form of medical injuries that you can imagine, you could wander in to any solicitor's firm
in the country and if you qualified for legal aid then that solicitor could take your case
through from beginning to end regardless of his competence or expertise to do so. That is
really a very fundamental point. The whole point about franchising and contracting is to
do so with lawyers who are quality assured. I do not think any person in this country
would thank the state for pointing him or her in the direction of a lawyer who does not
have the skill to do the job. If going over to skilled lawyers only means that there is
less choice numerically, it is a far, far better choice for individuals to have only
quality assured lawyers to choose from and that is my fundamental response to the question
of principle.
29. What would you say
for example about rural areas where maybe both sides to an action would have access to
the same firm of quality assured and contracted lawyers? Do you think that would be a
problem?
(Lord Irvine) No, we will ensure that there are arrangements in place
which always—I repeat always—give a real choice.
30. In terms of
monitoring this arrangement, are you satisfied that it is working well? What measures
are in hand to ensure the monitoring of the quality to which you rightly attach great
importance?
(Lord Irvine) It is the Legal Aid Board's job to set franchising
criteria and to see that they are adhered to. The whole name of the new game is quality
assurance. We all know that. If you have a medical negligence case then you will only be
pointed in the direction of someone on a panel of lawyers who are quality assured.
(Sir Hayden Phillips) Concerns were put to you and put to
us about the fact that low numbers might be coming forward. The actual numbers coming
forward to apply for contracts are very high. We expect about 5,500 in April and we expect
to build that up over time to about 10,000 in the year beyond, 50 per cent of which we
hope will be in the not for profit sector. This will be quite a dramatic change in the
provision that is available, the different types of provision and you have made it clear.
We are very conscious of the position in rural areas where we have to pay particular
attention to that.
(Lord Irvine) I have just looked up the basic facts. In the civil and
family advice and assistance area, we expect there to be about 5,500 solicitors' contracts
in place in January 2000 with about 350 to 400 contracts with the not for profit agencies.
Then, if you take family certificated work say, which broadly speaking means
representation in the family area, 5,500 contracts. Then if you take non family civil
certificated work, I cannot give exact figures but the supply base is going to be around
5,000 or 5,500. I do not really see any general problem.
31. You have answered the
question as to the availability. What I was also seeking to establish was the question of
monitoring of that very quality to which you attach such importance. Are you saying in
answer to me that it is the job of the Legal Aid Board to monitor these contracts? If so,
how is it going?
(Lord Irvine) The Legal Services Commission is under a duty to monitor
quality. I have to submit every year to Parliament under the Access to Justice Act an
annual report and I can absolutely assure you that it will deal thoroughly with the
monitoring of quality.
32.
In terms of those firms which failed to secure a franchise you told us last year that
the Legal Aid Board proposed to set up a franchise appeal body which will comprise a
member of the Board, a solicitor and a representative from a quality assurance
organisation. Has that been done or perhaps there has not been the need to provide that
because there has not been the level of complaints which were originally envisaged?
(Lord Irvine) I know that there is an internal appeal mechanism within
the Legal Aid Board. I believe that it is to a discreet and different body of persons
within the Legal Aid Board. I do not think it is to an outside body. If anything I have
just said in that answer is inaccurate, I shall write to you.[3]
If I do not write to you it is because it is, as I hope it is, completely accurate.
33. It will not be because it
was lost in the post?
(Lord Irvine) Not at all because of loss of face. If I have given you
any wrong information I would want ... Oh, loss of post. I can contemplate loss of post. I
cannot really contemplate anything other than that.
34. Lord Thomas
of Gresford did suggest in another place that there was concern that block contracting
could provide an opportunity for large litigants to ambush cases and therefore exhaust the
funds. What is your response to his concerns?
(Lord Irvine) I have said many, many times in Parliament that I do not
really recognise his concerns. I do understand people who are concerned about small high
street solicitors who feel that they miss out under an arrangement which goes over to an
insistence, for the benefit of the consumer, on quality assurance. I have given you the
numbers of contracts which seem to me to be very, very large. Wherever any of these rival
considerations arise, legal aid does not exist for the benefit of lawyers, legal aid does
not exist in order to guarantee a living for lawyers in the same structures and the same
organisations with the same size of firms as they had before. The consumer has to come
first.
35. Is there a
danger, if block contracts were awarded on the basis of specified numbers of cases,
that lawyers could thereby cherrypick the cases?
(Lord Irvine) No, the principle of block contracting is not that the
lawyers can cherrypick the cases that they do, but under the contracts, very sensibly,
they will be given a capacity broadly speaking of the cases in the particular categories
that they can undertake under the contract. The Legal Services Commission would not be
very efficient if it gave more contractual capacity to contractors than they could
efficiently do. There is a relationship between quality and the capacity to undertake work
to the requisite quality.
36. Moving to
conditional fee arrangements, one of the concerns which was raised was that there
would not be sufficient insurance policies and companies offering insurance policies to
deal with the problem. You told us a year ago that a large number of personal injury cases
had gone forward under conditional fee arrangements. You said you had seen a figure of
47,000 in relation to the work of a single insurer alone.
(Lord Irvine) That is right.
37. Can you tell us how
things have improved? You told us that you could not specify the names of the companies
for reasons of commercial confidentiality. Are you satisfied there is now a sufficiently
large pool of firms offering insurance?
(Lord Irvine) Yes, I am and the very best point to make is that when
certain legal interests argue that conditional fee agreements will not work because
lawyers share in the benefits of winning as well as the risk of losing, we have to remind
ourselves that in practice solicitors working for trade unions have been operating what
amounts to a conditional fee arrangement for years and years and years without even the
benefit of any success fee. They do not charge their client trade union when they lose
cases. They get their ordinary fees when they win and they run a profitable business. That
is just well known. That is why these big trade union solicitors came out in favour of my
consultation paper as soon as I made the proposal about conditional fee agreements and
they knew that they can run profitable businesses without any success fee. I just cannot
begin to accept that other competent legal firms cannot work profitably with conditional
fee agreements, with a success fee. Do not forget that under the Access to Justice Act we
have made two important changes, that the success and insurance premium can be recovered
from the defendant who loses. The uplift and the cost does not come out of the plaintiff's
damages. He or she gets the full damages to which they are entitled and the right person
pays at the end of the day, the person who in a negligence case has negligently caused the
damage. I would not have gone down this road unless I had a very considerable confidence
which I believe will be proved that this regime will work.
38.
What evaluation have you made of the performance so far, bearing in mind that conditional
fees have been in existence now since 1995?
(Lord Irvine) Everything that we know and learn from all the sources
available to us is that they work admirably.
39.
Is there a formal mechanism for evaluating the performance or is it just a question of
what information comes to your attention?
(Lord Irvine) I do not really know what the formal mechanism would be.
The record of success, for example, of these trade union firms which operate on this basis
in personal injury cases which fight, which is as good evidence as any, is 90 per cent I
am told, but anyway an extraordinarily high proportion of them succeed. Therefore it is
perfectly obvious on the basis of that information alone to my mind that this is a winning
route. We have been very careful, however, not to take medical negligence cases out of
legal aid pro tem. We have been very, very careful to stipulate that high cost
investigative cases ... I believe the market can bear these perfectly well but we have
been careful to ensure that legal aid continues for this class of case. I have to say that
if we ever did reach a situation, which I confidently believe we never will, that CFAs did
not work in this area, then the powers are available to bring them back into the scope of
legal aid. I confidently believe that this is one area of policy which will triumphantly
succeed.
40. Started of course
under a Conservative Government, as you were about to point out. One final point on
conditional fee arrangements. There has been some suggestion that those seeking to avail
themselves of this facility do not fully understand the implications of what is involved,
notwithstanding the high success rate of which you speak. The Consumers' Association, for
example, has expressed concern. They have told us the terms of conditional fee
arrangements are extremely complex and it is doubtful that many clients understand what
they are agreeing to.
(Lord Irvine) This is a very, very legitimate concern. This is
something in which my officials and I believe; there is correspondence which I have also
had with the solicitors' profession. It is absolutely critical that all litigants under
conditional fee agreements are fully informed of the terms of the conditional fee
agreement, the risks and so on. I have that well in hand. Also, if I had any real concerns
about it, I can impose rules.
Mr Malins
41. I must
declare an interest as a solicitor and also I sit judicially.
(Lord Irvine) Of course you do.
42. May I ask
you a little bit about the Criminal Defence Service, salaried defenders? An attractive
idea in some ways; undoubtedly saving money. Do you see though that there is some risk of
a downside in terms of more plea bargaining, more collusion between defence and
prosecution lawyers, perhaps a lack of independence felt by the salaried defender? Do you
see any problems in that area?
(Lord Irvine) I really do not. I have to say that I did not feel able
to put much weight on propositions I heard in debate that somehow or other, if you worked
in the private sector your ethics could be taken for granted but suddenly if you became an
employed lawyer your professional ethics went out of the window. I just do not believe it.
I think it is an insult to employed lawyers to suggest that that is so. In fact, as we all
know from practice, there are some barristers, almost all of whose work comes from the
Crown Prosecution Service and we do not say because of that that they are ethically at
risk because, as is true, the Crown Prosecution Service could get fed up with them
tomorrow and pull their practice from under their feet. It is perfectly possible to
suppose that a body of salaried defenders who would be subject to a code which we provided
for in the Access to Justice Act, and the salaried defenders are not to be answerable to
administrative heads but are to be answerable to the head of the department of salaried
defence lawyers, is absolutely as secure a base for being confident in the maintenance of
ethical standards, as in private practice where people's practices are confined very often
either to one or to a tiny number of suppliers of work for them.
43. If we
are moving down that line, in a few years' time what sort of proportion of defender
work would you be happy to see in salaried defenders' hands? Might it be 60 per cent or 70
per cent? One is guessing a bit of course but will it be a lot?
(Lord Irvine) I do not see anything like that. I would be very, very
surprised if in the foreseeable future the majority of defence work did not continue to be
undertaken by solicitors or barristers in private practice.
44. Obviously we all
agree, including the lawyers, of the need to keep criminal legal aid under control. Are you
making any studies at the moment, given that the Crown Court costs about £8,000 a day,
much more expensive than the lower courts, on whether some money might be saved by, say,
increasing the jurisdiction of the stipendiary bench to a couple a years? Not quite like
the old quarter sessions but some mechanism to increase jurisdiction of lower courts to
keep some of the cases away from the Crown Courts.
(Lord Irvine) One policy on which we have already settled will have
that effect. I was just thinking about the generality of the question and then a
particular answer occurred to me. The general answer is yes, we will keep that in mind.
The particular answer is, since we are taking away the right of defendants in either cases
to choose whether they have a jury trial or trial in a Magistrates' Court and I think it
is absolutely right to do that because in no other country with which I am familiar can
the defendant choose his own mode of trial, the court will choose for him. So the
Magistrates' Court will choose, subject to a right of appeal to the Crown Court. You and I
know perfectly well that will lead to a reduction in business for the Crown Court and an
increase in business for the Magistrates' Court. That is a perfectly good thing. As your
question suggests: should we think about it more? Yes.
Mr Singh
45.
May I ask a couple of questions about the Office for the Supervision of Solicitors (OSS)?
Last year you told us that you were suspending judgement on that body until the report of
the Legal Services Ombudsman in 1999.
That report was published in June and was extremely critical of that organisation, saying
that complaints had spiralled out of control, the OSS had failed to deliver against its
own standards and targets, that there was a backlog of 17,000 cases and the Ombudsman said
that she remained "... sceptical that the Law Society has a commitment and the
determination necessary to put its own house in order". Under the Access to Justice
Act you have made provision if necessary to appoint an independent commissioner.
How bad do things have to get before you activate that clause?
(Lord Irvine) Let me tell you first of all how bad or good or better
things are at the moment. You are quite right to remind me what I said a year ago. It is
an area of enormous concern and there is an appallingly bad record in the background and I
would not dream of concealing it from you. Let me tell you what the Law Society has told
me that it intends to do. I will be looking very carefully to see whether this is
achieved. They have agreed to implement the findings of consultants Ernst & Young. In
July I wrote the Law Society and I warned them that if the OSS, the Office for the
Supervision of Solicitors, which is funded by the Law Society, did not end up in a
position in which they processed 90 per cent of the complaints within three months and 100
per cent within five and if other interim targets were not met then I would appoint a Legal Services Complaints Commissioner.
That falls short of statutory regulation because we want these professions to be
self-regulating if they possibly can, provided that the interests of their clients are
properly protected. The Legal Services
Complaints Commission with a power to set standards for
complaints performance and the power to impose hefty fines if not. I am told, but you must
understand that I can only tell you what I am told, that as at September the backlog of
unresolved complaints was about 16,500—a heck of a number—but that is roughly 1,600
fewer than had been previously projected. If that is right, so far so good. Incidentally,
they have had an enormously poor administrative record and the director was recently
suspended and resigned. It is not at present a happy ship. The Ombudsman is satisfied with
the handling of complaints only in about 64 per cent of cases; that is not exactly a very
high figure. I said that I would not begin to consider accepting any decrease in excess of
£1,000. I have also said that the compensation limit has to go up to £5,000 and that
will happen. If you want to know incidentally, the Bar has a very, very much better record
and she found 92 per cent of the Bar Council's investigations conducted in a way that she
was satisfied with. However, there are real problems with the solicitors. I think that
there is a cultural problem really and that client care has to feature more in their
handling of complaints. It really is that solicitors know all about litigation and when
their clients complain and they get into conflict with their own clients, they treat it as
litigation by other means. They treat it as an extension of litigation whereas very often
a more conciliatory and a more self-aware approach would deliver the goods very, very much
better. I have not shrunk from telling the Law Society that, but in the familiar language,
the jury is out on it.
46. Given the changes
which are happening to the legal service, the Community Legal Service, the partnerships with advice agencies, salaried
defenders, do you not think there is a case anyway for an independent commissioner
to be appointed?
(Lord Irvine) I think that it is too early to come to that conclusion,
but it is by no means excluded.
47. Who would
monitor the Community Legal Service? If you had a complaint
about the service you received, to whom would you complain?
(Lord Irvine) It would depend whom your complaint was against. Of
course I entirely agree with you—I think this is what you are implying—if the
complaint was against a solicitor who is providing services under the Community Legal Service, what I have said to you about complaints handling as at
present does not fill you with cheer and confidence. Well it does not fill me with cheer
and confidence either. The truth is that the Law Society knows perfectly well that this
really is its last chance. I cannot be any clearer than that.
Mr Winnick
48.
Have you given further consideration to a judicial appointments commission? You said
last time, if I may remind you, that you did not rule it out in the future. As a party you
made reference earlier on to our various election pledges. We did say, did we not, that we
were going to have a judicial appointments commission?
(Lord Irvine) No. Just for the record, there is no manifesto commitment
to a judicial appointments commission.
49. We said we intended to
have one.
(Lord Irvine) No.
Mr Russell
50. You did in Walsall.
(Lord Irvine) In this case I cannot say you will always get it right in
Walsall. It was at one time part of Labour Party policy |
