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. All I am saying is that it is not a manifesto commitment. I told
you last time that I have not excluded a judicial appointments commission. About to report
to me, and I do not quite know when I am going to get his report, but I would hope pretty
soon, probably within no more than a month ... I appointed some time ago Sir Leonard
Peach, the former Commissioner for Public Appointments, to
investigate the whole range of appointments, the criteria, how it is assessed whether
people measure up to the criteria, the fairness of it, how grievances are dealt with.
There is a very, very thoroughgoing inquiry going on; I believe coming to fruition. His
report will be published and we will have to take it from there. I do not really want to
say anything unless you want to press me on the merits because I do not want it said that
I prejudged anything that Sir Leonard is going to say in his report to me. It is though an
area of my department's work which I pay a vast amount of personal attention to. I do it
in relation to all the judicial appointments, the silks' appointments and appointments at
a lower level. I devote a very, very great amount of time personally to ensuring that
there is no unfairness or any kind of discrimination in the system. However, Sir Leonard
is an expert in this area and I look forward to hearing what he tells me. What you should
know is that we have opened the books to him. We have a vast number of files with comments
and everything else. The whole thing is an open book to him. |
Mr Winnick |
| 51. I appreciate what you have just said
and I am glad that Sir Leonard is in fact conducting this inquiry. It is more a question,
is it not, of how appointments are made rather than who makes them? Would that be a fair
distinction between what he is looking at and the question of who decides on appointments?
|
| (Lord Irvine)
There is some kind of distinction, which I do not really find very convincing to be frank,
in his terms of reference about how the appointments are made and who makes them.
Basically the reality is that he is going to be looking at the whole machinery as a result
of which particular appointments emerge. He is going to be looking at the applications, he
is going to be looking at the criteria against which the applications are assessed, he is
going to be looking at how a sifting process is conducted, he is going to be looking where
there are interviews at how the interviews are conducted. There is literally nothing which
he is not going to be looking at. |
| 52. Do you have any idea when he
is due to report? |
| (Lord Irvine) I
had rather hoped he might be ready to report to me by now, but I always think that you are
better to get a job thoroughly done rather than to get it done in a great hurry. I should
be astonished if I do not have his report in six weeks. |
| 53.
As the matter stands at present, and of course this is why, if not an election pledge,
it was part of our policy as I understood it and I take into account your correction of
what I said at the beginning, the position of appointments involves, does it not, a number
of your officials? I do not know whether this is an exaggeration but it is said that some
100 officials in your department are responsible for building up information and a dossier
for you to see on who should be appointed. Would that be a fair account? |
| (Lord Irvine) It
is not of who should be appointed. Let me tell you that I think this is one of the best
things about the work of my department. It is absolutely scrupulous. So far is this from
secret soundings that all the consultees are known. Everybody knows who the consultees are
and I do not know of any walk of life where you seek promotion without references being
taken up. What these records show is continuous assessment year after year of the quality
of individuals by the judges in front of whom they appear and also by leaders of the
profession. |
| 54. That is information passed
to your department? |
| (Lord Irvine)
Yes, but not just information passed to my department, information which my department
goes out and seeks and gets. We promote it. We do not sit passively waiting for it to come
in. We seek it. It is a major job of my department to ensure that we are fully informed of
the continuous assessment of people who are going to be candidates for something which is
terribly important: judicial appointments. |
| 55.
Hoping all the time that those comments by judges are as unbiased as possible. |
| (Sir Hayden Phillips)
May I make one point there, lest the impression is given that it is the department and
only the department who do the work? The vast majority of judicial appointments are made
as a result of open competition and application. Those people coming forward are all
sifted and interviewed, not just by officials but by other outsiders joining in. |
| (Lord Irvine)
That is right. |
| 56. Are you referring
to the highest judicial appointments? |
| (Sir Hayden Phillips)
No, I am talking about the vast majority. |
| (Lord Irvine) No, no
we are referring to assistant recorders, district judges, deputy district judges, circuit
judges. |
| 57.
High Court judges? |
| (Lord Irvine) No, you
are pressing me on those who are not subject to interview but in fairness what I am saying
to you is that the overwhelming majority of judicial appointments are subject to open
competition, application and interviews with lay assessors present. It is perfectly true.
I have opened up High Court appointments to application. I did that for the first time. We
do not as yet have interviews for High Court judges. What Sir Hayden was seeking to get on
the record he is absolutely right to do. |
| 58. Lower down the scale; yes? |
| (Lord Irvine)
Lower down, yes, but the overwhelming majority of appointments. |
| 59.
May I just say that I accept entirely—and I am sure all members of the Committee do—that you are trying, perhaps much more so than previous
occupants of your office, to bring about changes whereby gender is more broadly based in
judicial appointments as well as ethnic minorities? |
| (Lord Irvine) It
is good of you to say so, but it is true that I am trying very hard. |
|
| FOOTNOTE |
| 1 Note
by witness: The Quality Mark will be awarded by the Legal Services Commission. The
Commission will also have the power to accredit others to award the Quality Mark. Back |
| 2 Note
by witness: In six rounds of funding, the National Lotteries Charities Board has
provided £33 million for services with at least an element of advice work. The London
Boroughs' grants are distributed to approximately 650 voluntary organisations, around half
of which have some involvement in providing advice services. Back |
| 3 Note
by witness: I was correct to say that appeals are heard by a panel of persons within the
Legal Aid Board, rather than by an outside body. However, the panel does include an
external representative. The panel comprises a non-executive member of the Legal Aid Board
and a senior member of the Board's personnel. Where the appeal is from a profit-making
organisation, such as a solicitors's firm, a nominee of the Law Society also sits on the
panel. Where the appeal is from a not-for-profit organisation, the Advice Service Alliance
nominates a representative. Back |
|
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Parliamentary copyright 1999
Prepared 8 December 1999 |
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