Examination of Witnesses (Questions 1
- 19)
TUESDAY 10 NOVEMBER 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC, MR IAN
BURNS
Chairman
1. Lord Chancellor, good morning. As before,
this is a general trawl through your vast range of responsibilities,
although I expect that much of the early stages will be taken
up with proposed reforms to the legal aid system. I also welcome
Mr Ian Burns. Mr Burns, you are not Sir Thomas Legg's reincarnation?
(Mr Burns) No. I worked for Sir Thomas Legg. I was
his junior and I am now Sir Hayden Phillips' junior.
Mr Hawkins: I declare an interest as a member
of the Bar, a former chairman of the Bar Association for Commerce,
Finance and Industry and a former member of the Bar Council.
Mr Stinchcombe: I declare an interest as a member
of the Bar.
Mr Hawkins
2. The concern about the need to modernise access
to justice is a subject about which you and your ministerial colleagues
have spoken fairly extensively. Can you confirm that your proposals
to reform and modernise access to justice will be published shortly
as a White Paper? I appreciate that you may not be able to disclose
what may or may not be in the Queen's Speech, but what do you
say about the imminence or otherwise of such proposals in the
form of a White Paper?
(The Lord Chancellor) Obviously, I cannot anticipate
what may or may not be in the Queen's Speech, but certainly it
is my aim to publish a White Paper shortly afterwards.
3. The Community Legal Service is also something
that you have set out in detail in a recent speech. Can you outline
this morning your long term strategy for the creation of a community
legal service? In particular, to what extent do you think that
it may provide services that go wider than purely legal services,
such as help with alternative dispute resolution and mediation?
(The Lord Chancellor) Our basic vision is of a network
of quality providers of legal services supported by co-ordinated
funding delivering services to the local community. Basically,
what we aim to do is try to join up in a rational way in accordance
with local plans all the service providers that already exist.
We need to improve the focus and co-ordination of funding of local
legal and advice services. An important aspect is to improve referrals
among providers and standards by achieving a more standardised
means of evaluating the quality of the services provided. As I
said in the speech which I assume you have read, we want to establish
pioneer community legal service partnerships, which may be partnerships
between the Legal Aid Board, CABs, law centres and local authorities—all
the players—to identify the most effective methods for local
co-operation and to test methods of needs assessment in particular
areas, and plan. At the moment provision is geographically unequal
and hugely varied across the country. What we aim to do over time
is improve it by joining up effectively all the existing providers.
Another important aspect is our intention to set up a quality
task force to develop a kind of kitemark for advice services.
That task force will be composed of representatives of all the
players: active members of the voluntary sector, funders, other
government bodies and interested parties. As to that I intend
to publish a detailed consultation paper early in the new year.
One of the functions of the Community Legal Service in the long
term is to refocus legal aid expenditure so as to meet the needs
of ordinary people more effectively in the areas that acutely
affect their lives. I take up the last point of your question
about ADR. Certainly, we shall be looking at the possibilities
of ADR and mediation as a better means of ensuring the satisfactory
resolution of disputes. One aspect of legal aid is that it is
almost exclusively confined to court-based outcomes. As an example,
the great benefit of mediation in the family law area is that
if a mediated settlement is achieved each party in the settlement
feels that he or she has a stake in the outcome. That is quite
different from being on the receiving end of a court-based solution
which perhaps satisfies no one. Further, in the family area a
mediated outcome is more likely to make forward arrangements that
will stick in practice, for example in relation to children. I
am very sympathetic to mediation and ADR. But at the same time
one must be very careful that it will work and that the mediators
are properly accredited. The one thing one does not want to do
is simply to impose a new costly tier that does not work.
4. You mentioned the fact that that tier might
be costly. In what is clearly a large-scale reform, have you identified
an approximate figure for the cost of mediation?
(The Lord Chancellor) No.
5. You would not be able to provide any ball
park figure?
(The Lord Chancellor) No, save that you will have
noticed recently that the Legal Aid Board stated that in principle
legal aid would be available for mediation. I believe that that
was a very progressive decision. To take the view that legal aid
should be confined to litigation and not mediation may be to withhold
public support from a more effective means of promoting settlements,
because it is outcomes that are important; they give people satisfaction.
It is too early to give any figures at all, but I believe I have
said enough to show that I regard it as an extremely important
question. I am favourably disposed towards mediation and ADR.
I do not want you to think from my answer that I have not thought
about it. The value and potential of ADR services are matters
under active examination by my department, not least in the context
of the decision of the Legal Aid Board to make legal aid moneys
available for mediation. But we have not reached the stage of
quantifying a figure for that.
6. As to the availability of legal aid, it is
well known that there is great concern about the non-availability
of legal aid in many tribunals. In evidence to the committee last
time you appeared here you conceded the irrationality of the current
system. What plans do you have to make legal aid more widely available
in tribunal cases, bearing in mind that perhaps about 60 different
tribunals exist and legal aid is available in about three of them?
(The Lord Chancellor) I do not resile from what I
said on the last occasion before the committee, but any extension
of legal aid, however limited, to tribunals within a controlled
budget would be at the expense of something else. Therefore, as
we develop the community legal service and have a much better
impression of the extent to which other providers, such as trade
unions and some advice centres which provide representation in
industrial tribunals, we shall certainly look progressively to
see whether particularly through the medium of contracting we
can do something on that front. But it would be within a controlled
budget. There is also the prospect of conditional fee agreements
in the industrial tribunal context. As you know as well as anyone,
the cost rules in the industrial tribunal—that someone who
is successful does not recover costs—does not make that
as encouraging a route as ordinary litigation where if someone
wins he recovers his costs.
7. You have identified various ways in which
you perceive that savings may be made in the legal aid budget
from some of the changes that you propose. Colleagues will be
turning to that at a later stage. Do you feel that if there were
to be savings in other areas they might be applied in redeploying
legal aid such that it became available in a rather wider range
of tribunals? Is that something that you have in mind if savings
are eventually made?
(The Lord Chancellor) The objective is to run a more
efficient service that reaches more people and caters for the
needs of the most disadvantaged in society. The object is not
savings as such. The budget for legal aid over the next three
years will on average be about £1,600 million for each year,
which is in excess of the estimate of our predecessors. The object
therefore is not savings as such, but I agree that the object
is to refocus.
Chairman
8. When you talk about telephone advice or advice
that is available at doctors' surgeries or public libraries, is
that advice available regardless of income? If you rang up and
asked for some legal advice is the first question about your eligibility?
(The Lord Chancellor) That is a very good question.
Eligibility is a principle of legal aid. Free advice at the point
of access is a principle of the legal advice centres. Let us suppose
that it is an advice centre which at some kind of outpost is providing
the kind of help that you describe. We must look at that very
carefully. The nearest that I can get to a good answer is that
it would be quite counter-productive down the telephone to ask
people about their means. That would probably have to go by the
board. However it is something that we must consider.
9. But at that stage someone may be looking
simply for some commonsense advice which may be dealt with in
five minutes?
(The Lord Chancellor) Exactly. The pen-pushing about
eligibility limits would not be practically sensible.
Mr Stinchcombe
10. As I understand it, recently there has been
a pilot study of ADR at the Central London County Court. Have
the results of that study been received and considered?
(Mr Burns) We have had early researchers' reports
on that project. That has been disappointing. The take-up of ADR
has been very limited. There are reasons for that in the researchers'
reports which we are studying to see if they carry lessons for
the future. But the cases where ADR has been successful in the
Central London County Court—you may be aware of other cases
in the Commercial Court where there has been considerable success
with ADR—have led the Lord Chancellor to ask the department
to put a lot of effort into finding out just what the options
are on ADR. That work we are now putting in hand. We are trying
to learn from the Central London County Court and Commercial Court
pilots and explore the options, but at the moment we have not
reached any conclusions.
11. Is there any indication as to how successful
ADR was when it was taken up?
(Mr Burns) Yes. I do not have the research work to
hand, but on the whole those cases where ADR was used in the Central
London County Court were successful; in other words, a higher
proportion of cases produced a settlement than would otherwise
have been predicted by the parties.
12. Is there any survey material from other
jurisdictions?
(Mr Burns) Plenty, but much of it comes from jurisdictions
where the rules as to costs are rather different. It is a bit
dangerous to interpret that. If one looks at the United States
there is a volume of experience on ADR, a lot of which is very
positive, but the costs rules and legal practices are so different
that it is dangerous to read across the Atlantic without trying
to allow for that.
Chairman
13. Once you have liberated some savings from
the areas where you intend to make them is it your long term aim
to increase the levels of eligibility bearing in mind that at
the moment they have been driven down the point where even some
people on benefit no longer qualify?
(The Lord Chancellor) Without being able to hold out
any hope of immediate action, I agree with you that a long-term
aim should be to improve eligibility limits, but we must first
get the whole of the legal aid budget under control. As you know,
the medium of contracting is one to which I attach a lot of optimistic
hope. But if there are any funds that are released in the way
that you suppose then another important criterion will be to release
them into priority areas that are currently under-provided, for
example housing and employment advice. That is a long term aid,
but there are many other priorities within a budget that is brought
under control.
Mr Singh
14. You said in an earlier answer that there
would be no reduction in the legal aid bill for the next three
years?
(The Lord Chancellor) If you look at the three years,
on average for each that is undoubtedly so.
15. In the medium term or long term do you see
any reasonable prospects of a real terms reduction in the overall
legal aid bill?
(The Lord Chancellor) That is not contemplated. I
rather thought that you would ask me whether I saw any possibility
of a real terms increase in the legal aid budget. To respond to
your question as to whether there is any prospect for a real terms
reduction, the object is not to promote such a reduction but to
get the budget under control.
16. I am sure that you were as concerned as
we were by the recent report of the Law Lords about the excessive
fees being charged in the higher courts. What action do you propose
to take in the light of that report?
(The Lord Chancellor) There is no doubt that the report
of the Law Lords demonstrated a culture from which we must get
away, which is the assumption that just because the case is in
the House of Lords as distinct from the Court of Appeal therefore
you must get more money. The House of Lords sat on that very heavily.
We must get away from the proposition that just because it is
a higher court therefore there should be more money. We must also
get away from a disturbing pattern of over-claims which subsequently
have to be taxed down very substantially. People should claim
realistically for the work actually done. One of the problems
that affected the House of Lords was that it did not really have
the expertise and experience of dealing with taxation that was
available to the Court of Appeal where it happens daily. Therefore,
the Court of Appeal will provide the taxing officer of the House
of Lords with details of the fees paid to counsel in the proceedings
which are the subject of the appeal—the Court of Appeal
proceedings. There will then be regular meetings between the taxing
staff of the Court of Appeal and the Judicial Office of the House
of Lords so as to provide some expertise to the latter. Further,
the Court of Appeal will itself provide advice and assistance
on levels of fees in particular classes of case. I shall ensure
that representation on behalf of my department is available in
appropriate cases before a taxing officer of the House of Lords.
We have responded to it.
17. Do you have any plans to extend further
the use of fixed fees for criminal legal aid?
(The Lord Chancellor) Yes. I prefer "graduated
fees", with which you are very familiar. Work has begun on
devising a formula to extend graduated fees that currently apply
for advocates who appear in the Crown Court in cases of as long
as 10 days to cases of as long as 25 which are substantial. It
is also perfectly possible when we come to contracting that graduated
fees will form the basis of remunerating advocates who are instructed
by solicitors and are working under a criminal defence service
contract with the Legal Aid Board. However, when one gets to the
very high value criminal cases—by which I mean the very
small number of cases that consume a large part of the budget—the
department will be looking very carefully at one-off contracts
managed from the centre of the Legal Aid Board with the board
having the expertise in place to contract sensibly in those cases,
all with a view to an overall policy that as far as possible with
scarce public resources there should be fixed price contracts.
18. Turning to solicitors, I understand that
in the last financial year over £1 million was recovered
by the Legal Aid Board from fraudulent claims made by solicitors.
This year four successful prosecutions have been brought against
solicitors. Are you satisfied with the number of prosecutions
that have been brought?
(The Lord Chancellor) It is not really for me to be
satisfied with the level of prosecutions. That is the responsibility
of the Crown Prosecution Service. The CPS applies a policy of
prosecuting only if there are sufficient prospects of success.
But what I can more usefully tell you is what we are doing within
the Legal Aid Board to establish procedures to handle cases where
allegations of fraud are made. We are managing a major strategy
for weeding out fraud, but it will take a bit of time. The special
investigation unit was established to investigate applicants with
complex financial arrangements in civil cases, so it applies in
civil cases. But I do not dispute for a second that there is a
real problem about fraud in the criminal area. What we intend
to do is extend the remit of the special investigations unit to
criminal cases. Pilots began in April in more than 20 Crown and
magistrates' courts. A report on those pilots is due at the end
of this month, but eventually the special investigations unit
will cover all criminal courts.
19. Turning to means-testing for criminal legal
aid, I understand that you will transfer the responsibility for
that to the Legal Aid Board in 2000/01. In the meantime, has any
progress been made in replacing the inefficient system of determining
criminal legal aid in magistrates' courts?
(The Lord Chancellor) You touch on two goods points
where I cannot announce any decisions on this occasion. But serious
thought is being given to whether there should be a transfer of
responsibilities to the Legal Aid Board. Further, the whole question
of the delays in the magistrates' courts associated with means-testing
in those courts means that we must take a very close look at whether
the huge delay associated with means-testing makes it worthwhile
at all. I can assure you that that is being looked at very carefully.
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