Examination of Witnesses (Questions 100
- 119)
TUESDAY 10 NOVEMBER 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC, MR IAN
BURNS
100. How would the quality of justice in the
higher courts and the future of the independent Bar be affected
if you made the final decision?
(The Lord Chancellor) I think that the independent
Bar has a very strong future. I believe that this issue has been
blown out of all significance. In Australia and New Zealand where
perhaps for half a century solicitors have had rights of audience
alongside the Bar a strong independent Bar flourishes because
specialisation means that it is difficult to combine other forms
of legal practice in an employed status without being an advocate
every day all day in the courts. But I believe that the Crown
Prosecution Service is in a distinct category. I contemplate that
there should be a progressive expansion for suitably qualified
employed lawyers, whether solicitors or barristers, in the Crown
Prosecution Service in the higher courts.
Mr Stinchcombe
101. In your desire to break down the old-fashioned
restrictive practices do you support the Bar having increased
rights over accepting direct instructions from the public?
(The Lord Chancellor) That is entirely a matter for
the Bar. I do not think that it is any part of my function to
give business advice to the Bar. The Bar is an independent profession.
It conceives of itself as a referral profession. I would have
thought that the traditional orthodoxy at the Bar is that if it
took direct instructions from the public it would become indistinguishable
from solicitors, but that is a matter for the Bar. I am not in
the business of giving advice to the Bar or solicitors as to how
best to self-regulate their affairs.
Miss Johnson
102. What steps are you taking to monitor the
fairly new system that has been put in place by the Bar Council
and the Law Society to handle complaints against barristers and
solicitors? Have you formed any view about its effectiveness to
date?
(The Lord Chancellor) I have formed the view that
it is too early to form a view about its effectiveness. The office
of the Ombudsman for Legal Services was established in 1991. She
makes recommendations in her annual report about the handling
of complaints by the professional bodies. The majority of complaints
are about solicitors. In 1997 26,445 complaints were referred
to the Office for the Supervision of Solicitors compared with
550 for the Bar. However, the solicitor profession is very much
larger than the Bar. In England there are 70,000-odd solicitors.
I say that it is too early to form a view because the Office for
the Supervision of Solicitors was not established until September
1996. The Bar Council's complaints commissioner was not appointed
until April 1997. I have sought the view of the Ombudsman. The
view that has been taken—we agree with it—is that
the new procedures have not been established long enough for performance
to be fairly judged. The director of the Office for the Supervision
of Solicitors is making changes in the practice of that office
so that the work of the office is streamlined and more client-focused.
I think that it is premature to intervene at this stage. But when
the Ombudsman publishes her next annual report in 1999 together
with other Ministers I shall certainly consider whether any further
action is necessary. But when one has anything as new as that
one must give it time to bed in; in other words, one must give
it a chance.
103. You said in a Written Answer in June that
it was intended later this year to carry out the first review
of the work of the Ombudsman for Legal Services.
(The Lord Chancellor) That is right, and I have changed
my mind. Since that Answer I have agreed with the Ombudsman—this
is her view—that it would be premature, pending an evaluation
of developments in the professional bodies' complaints systems,
to do that. One must not forget that the Ombudsman was appointed
only in September 1997. She should be allowed to make an informed
assessment of how her office is functioning. It is now envisaged
that her review will start in the summer of 1999. When one has
comparatively new bodies for both solicitors and the Bar and a
new ombudsman in place one must give them a bit of a chance.
104. What criteria do you believe you will use
when that time comes by which to form an initial assessment of
whether the system is working effectively? What kinds of things
will you be looking at?
(The Lord Chancellor) I shall be very substantially
guided by her because it is her job. What is of importance is
the speed of decision-making, the quality of the investigation
and the level of client satisfaction from the procedures as she
determines it to be. The basic consideration will be whether the
public given their grievances against the legal profession are
broadly speaking satisfied or dissatisfied with the quality of
the service that they get from these bodies. If it appears to
me and the Ombudsman that there is a significant lack of satisfaction
and that there is good reason for it we shall look at the whole
system in a very thoroughgoing way.
105. Moving to the introduction of non-lawyers
into the complaints processes, the systems are self-regulatory.
You touched on the self-regulatory nature of the process earlier
this morning. Are you satisfied with the arrangements in that
regard?
(The Lord Chancellor) I would like to hedge my bets.
I repeat my previous answers. I would like to wait and give these
systems a chance and in a year's time take a good view of them.
Mr Howarth
106. What assessment have you made of the possible
impact of the Human Rights Act on the workload of the higher courts
bearing in mind suggestions that there may be a flood of cases?
(The Lord Chancellor) There is no doubt that the Human
Rights Act will have a considerable impact. That is what those
who support this legislation expect. The most relevant foreign
experience is of human rights legislation in New Zealand and Canada.
It shows that the greatest impact is where one would expect; namely,
in the criminal courts.
107. Are not the criminal courts expensive in
terms of legal aid? Have you estimated the increase in public
expenditure on criminal legal aid, given that that represents
70 per cent of the likely cases, and the costs of the Crown Prosecution
Service which are likely to go up?
(The Lord Chancellor) Is the proposition that because
of these cost implications we should not have a Human Rights Act?
108. No. Given that you are responsible for
this Bill, what assessment have you made of its impact? What assessment
have you made of the cost of it? What is it likely to do to your
legal aid budget or the costs of the Crown Prosecution Service?
(The Lord Chancellor) It is very difficult to assess
this kind of thing. One must bear in mind that in the overwhelming
number of criminal cases where human rights points arise the proceedings
are taking place anyway. It is not as if it is a free-standing
human rights dispute. In the overwhelming majority of cases it
is another point in the proceedings. It is important that judges
be trained—we have an ambitious training programme for the
judges—in dealing with human rights points. One can be quite
sure that at first, as with the introduction of every new system,
for every good point very many more bad points will be taken.
That is in the nature of things. But within our budget we have
catered for extra costs that may fall on us as a result of the
implementation of the Human Rights Act. The figure is £39
million per year.
109. Is the answer to my question £39 million?
(The Lord Chancellor) No, not necessarily. I hope
that it will be very much less than that, but that is the provision
which has been made.
110. You referred to the training of judges.
Am I correct that you said on the radio that £5 million would
be devoted to this?
(The Lord Chancellor) I believe that I said £4.5
million. The Home Secretary and I have jointly provided £4.5
million to cover the cost of judicial training. We have made a
provision for that in the comprehensive spending review. I have
given you the best figure that I can. I hope that it is not needed
but that is the provision.
111. Given that the training of judges is required,
how do you expect that to impact on the operation of the courts?
Is it likely seriously to extend the delays in people getting
access to the courts while judges are undergoing this training
which is very extensive?
(The Lord Chancellor) One is dealing hopefully with
highly qualified people who are not strangers to learning and
who are hugely interested in having a human rights regime to apply
alongside the rest of their judicial duties. I hope that we are
talking about a very receptive group of men and women who will
learn quickly. But in our budgeting we have taken into account
that there will be a cost for providing other judge days when
judges are away being trained on this subject. I can give you
more figures if you want them.
112. If you are offering them we will be very
keen to receive them.
(The Lord Chancellor) The £4.5 million that the
Home Secretary and I have set aside for training represents the
estimated total cost of training judges, magistrates and tribunal
chairmen. Over £1 million will be required to enable the
Judicial Studies Board to deliver training to all full and-part-time
judges. It is a fact of life that while judges are out of court
the court service will have to pay for substitute judges to sit
which will add up to in excess of £1 million. The training
of magistrates is paid for locally by the magistrates' courts
committees who are funded basically 80 per cent by my department
and 20 per cent locally. This represents a further sum of between
£1 million and £2 million. These things come with a
cost, but I regard all of these matters as completely containable
and well justified by the gain of securing the development of
a culture of support for human rights throughout the whole of
our court system.
113. You appear to be very defensive.
(The Lord Chancellor) I thought that I was being very
eloquent.
114. Clearly, this major change in the legal
system is bound to have a cost and I am simply seeking to ascertain
what that cost may be.
(The Lord Chancellor) That is right; it is self-evident.
115. I turn to another aspect of the Human Rights
Act which has caused a good deal of debate inside and outside
Parliament: privacy. The Prime Minister has made it clear that
he is not in favour of a new law on privacy, and I believe that
that is also your view. Do you think that the Human Rights Act
is likely to have any impact on the kinds of activities that we
have witnessed in recent days involving Cabinet Ministers whose
privacy has been invaded contrary to the Convention on Human Rights?
What is your view on that issue and whether or not the Human Rights
Act will be able to help?
(The Lord Chancellor) I have long since ceased to
give legal advice for reward or not. I do not think that in my
position I should speculate as to future court decisions.
116. But this is a very important point. The
Government have indicated that they are not prepared to support
a new privacy law established by statute. There is a risk, as
expressed by no lesser person than the Lord Chief Justice himself,
that under the Act a law of privacy may well be created by the
judges in contravention of the clear wishes of Parliament. As
Lord Chancellor are you not concerned about the clash between
the two and the impact on the separation of powers that this implies?
(The Lord Chancellor) There is a big distinction between
the implementation of the Human Rights Act and a statutory law
of privacy. I am absolutely clear every time I have spoken on
the subject that the Government have no intention of introducing
a statutory law of privacy. But the development of the Human Rights
Act once passed by Parliament will be for the judges. I do not
propose to second guess how judges may choose to develop it. I
applaud your reading of statements by the Lord Chief Justice and
anyone else, but at the end of the day it will the courts system
in its own independent sphere that will decide these matters.
117. When you came before us last year you said:
"The judges plainly have an appetite to develop the law of
privacy." Therefore, you are clearly aware that they intend
effectively to challenge the authority of Parliament. This seems
to me to be an extremely important issue. Do you not recognise
the collision course upon which you are embarked between the institution
of Parliament and the judiciary who have an appetite to develop
the law of privacy when the Government have no such appetite?
(The Lord Chancellor) What must be realised is that
the Government have decided not to bring before Parliament a statute
that confers on people the right to complain of invasion of privacy.
Once the Human Rights Act has passed through both Houses of Parliament
it is the intention of Parliament that it be applied by the judges,
and it is for them to work out how to apply it through their decisions.
I see no incompatibility between a decision not to bring forward
a free-standing statute in relation to privacy and the passage
of the Human Rights Act which will be the business of the judges
and no one else to apply once passed.
Mr Russell
118. Do you confirm that a reduction in the
number of magistrates' courts is taking place?
(The Lord Chancellor) Yes.
119. Why?
(The Lord Chancellor) First, these decisions are taken
locally.
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