Examination of Witnesses (Questions 20
- 39)
TUESDAY 23 JANUARY 2001
THE RT
HON LORD
IRVINE OF
LAIRG, QC, AND
SIR HAYDEN
PHILLIPS, KCB
20. I am not questioning your sincerity, Lord
Chancellor. All I am saying is that your Party is in government
and there is a clear confusion, in my view, as to what your policy
is. If I can take you back to the point you made about £4
million for Relate and other organisations seeking to protect
marriage, can I draw attention to the report I chaired last September
The Cost of Family Breakdown. We have itemised and identified
£15,000 million of costs attributable to marriage and family
breakdown and we believe that the true figure is double that so,
basically, Lord Chancellor, £4 million is peanuts by comparison.
(Lord Irvine of Lairg) Yes, but if the suggestion
is that there is a correlation between the cost of marriage breaking
down and the amount government pays for marriage counselling and
marriage support, there is no correlation at all. Marriages do
break down, they break down to a distressing extent and, no doubt,
there are costs associated with that but the correlation does
not exist.
Mr Winnick: I think we must make some progress.
Marsha Singh wants to ask some questions on immigration appeal
charges which has been the subject of some welcome change. Mr
Singh?
Mr Singh
21. Lord Chancellor, the principle underlying
tribunals, I believe, is the principle of free access. Why was
it thought necessary to break that principle in the case of family
visit appeals?
(Lord Irvine of Lairg) First of all, and of course
I speak on behalf of the Government, you do appreciate that the
fees for family visa applications are set by the Home Office and
not by the Lord Chancellor's Department. There is a principle
of full cost recovery which applies throughout the whole of the
court system and throughout the whole of the judicial system and
the figures that were originally fixed on a full cost recovery
basis, I accept, looked very, very high. They were £280—
22. Lord Chancellor, I will come onto that but
I would like to pick up one point of principle. You said the full
recovery of cost principle applies across the justice system.
If I were to go to an employment tribunal, an immigration tribunal
or a social security tribunal I would not be expected to pay a
fee to get access to that tribunal, and yet you said—
(Lord Irvine of Lairg) I think the reason for this
is that these were appeals against refusals to grant a visa administratively
to a judicial tier, that is to say to the adjudicators, then to
the immigration appeal tribunal and then, if necessary, any further
appeal (on a point of law) to the Court of Appeal, which are very
intensive of judicial time and it was thought that they should
attract fees on the same basis as court proceedings generally.
I take your point but that is the answer.
23. Would you agree with me that many people
were disappointed in that although the Labour Party—my Party—made
a commitment to restore visitor appeals, no mention was made at
that point of any fees for such appeals?
(Lord Irvine of Lairg) I have read the debate in the
House of Commons where the Home Secretary was tasked about this,
from behind as well as across the Chamber, and of course I recognise
the depth of feeling and that is why there was a response, and
from £280 on paper and £580 oral it is now £50
paper and £125 oral. That is a very, very significant reduction.
I appreciate that if you are opposed to any charge in principle
this will not satisfy you, but this is a very major reduction,
in response very substantially to pressure from the Government's
own supporters.
24. One of the things that was heard on the
grapevine was in fact that this was a cock-up between the Home
Office and your Department in that no money was asked for from
the Chancellor in order to cover the cost of this appeal system
and consequently a fee had to be put in place to cover those costs.
Is there any truth in that?
(Lord Irvine of Lairg) I certainly cannot confirm
that, no.
25. Let us go on to the actual levels of fees.
I understand that originally the costs were proposed to be £280
for a paper appeal and £580 for an oral appeal. What assumptions
gave rise to that first assessment and what were the factors that
later led to the reduced fees of £50 paper and £125
oral?
(Lord Irvine of Lairg) There was a lesser volume of
this work than was anticipated. An initial decision had been taken
to set a fee. That was a decision taken by the Home Office. It
was the Home Office's policy to allow an appeal both to an adjudicator
and to the tribunal, that is the Immigration Appeal Authority.
That was what was driving the high fee levels. A decision was
taken, largely because of the reduction in volume of business
(so that demands upon the resources of the system were not going
to be as great as it was anticipated they would be) that the fees
could be significantly lowered within the context of full cost
recovery overall.
26. I would not at all like to comment on the
intelligence of those who advise on the level of fees, Lord Chancellor,
but surely it does not take an Einstein or a genius to figure
out that if you put the fee at £500 (or originally £580)
there is going to be a drop in anticipated take-up?
(Lord Irvine of Lairg) Yes, and it will be interesting
to see if that point is made good by evidence and that there is
an increase in the take-up, but these figures are now set and
that is that.
27. Fine. If there is no increase in take-up,
is it proposed that your Department picks up the full cost of
this appeal system?
(Lord Irvine of Lairg) No. As I say, by statute the
responsibility for setting these fees is with the Home Office
and not with my Department.
28. The point I am making is we have reduced
appeals to £50 for paper and £125 for oral and if there
is no increased take up of those appeals, the appeal system is
still there, established, so who will pay the cost of that system
given the principle of recovery of full cost to pay for it?
(Lord Irvine of Lairg) My Department is responsible
within its financial settlement to run all the judicial elements,
that is to say the adjudicator level and the Immigration Appeal
Tribunal level, for considering these appeals.
29. If there is no increased take-up you will
continue to pay the costs for administering the system which has
been established?
(Lord Irvine of Lairg) Yes, these fees have been set—I
cannot say that they will never be altered but they have been
set for the foreseeable future—and whether or not there
is an increase in this volume of business should not affect that
fee structure. I cannot be clearer than that.
30. I understand that your Department, Lord
Chancellor, charges the fee but if an applicant is successful
the fee for the amount is refunded by the Home Office. Is there
any mechanism for your Department then to reimburse the Home Office
for their reimbursing the applicant?
(Sir Hayden Phillips) May I explain my understanding
of how this is operating. One of the reasons why it is possible
within a policy of full cost recovery to lower the fees is that
in the course of the refunding mechanism the Home Office judged
that within its own budget it can afford to support us in this
level of subsidy for the fee. That is my understanding.
31. Is that support already built into their
estimates or will they be cutting elsewhere in order to provide
that support?
(Sir Hayden Phillips) As I understand it, it is already
built into their estimates of the total costing operation for
this particular area of work.
Mr Singh: I would just finally like to say,
Chairman, that I do welcome the reduction in fees, Lord Chancellor.
Mr Winnick: I am sure that is appreciated. Mr
Malins?
Mr Malins
32. Lord Chancellor, I welcome that reduction
as well. You may know that I founded the Immigration Advisory
Service about eight years ago which does a great deal of work
in this connection. We were at the forefront of lobbying for these
fees to come down. Given that the preponderance of family appeals
visits might relate to the Indian sub-Continent where there is
extra poverty, the Immigration Advisory Service thinks there is
a slight disadvantage for people on that sub-Continent in relation
to appeals compared to elsewhere; what do you think?
(Lord Irvine of Lairg) I think it is very difficult
to assess the comparative means of people from various parts of
the world who are applying for family visit visas. I think that
to designate parts of the world as very poor and other parts of
the world as not so poor and to have some kind of sliding scale
would probably cause more offence than relief, frankly.
33. I take your point. Originally, did Jane
Kennedy not say that she expected about 9,500 appeals per year?
My understanding is that the appeals that have been lodged so
far are very, very few in number—very few. Have you any
figures on that or thoughts on that?
(Lord Irvine of Lairg) I do not have them readily
to hand, I do not recognise the figure that you quote from Jane
Kennedy. I can confirm that the volume of business is very much
less than anticipated but at that level of detail I cannot help
you at the moment.
34. It might be helpful to know what was expected
by way of appeals and what we are getting and to link that up
in a sense with fees charged or fees potentially to be charged
and at the same time link up the issue of fewer appeals with lower
fees and the question of whether we will get full recovery. I
think there is a little to be looked at that in this area.
(Lord Irvine of Lairg) I had not anticipated, and
I apologise, questions at that level of detail on this issue.
I make no complaint at all and I will ensure that I will write
to you with as much detail as I can achieve in a short space of
time.[1]
I entirely understand the worry.
Mr Winnick
35. You will have read the debate, of course,
with the Home Secretary when he was asking for approval for the
system of immigration appeals charges and the strength of feeling
certainly on the Government benches. The Home Secretary, as you
know, towards the end of that debate said he would review the
charges, which he has done. Presumably you have read that debate
and understand the strength of feeling?
(Lord Irvine of Lairg) Undoubtedly I read it at the
time. I cannot say I have a detailed recollection of it but I
have a clear impression of it certainly.
36. Arising from that debate, as you know, the
Home Secretary decided to review those charges, which he has done.
(Lord Irvine of Lairg) He did and we discussed it
together and we took the view that this reduction was right.
Mr Winnick: Mr Stinchcombe wants to ask you
about the supervision of solicitors. Can I remind colleagues that
if they have any interest to declare obviously they must do so,
as in the Chamber. Mr Stinchcombe?
Mr Stinchcombe
37. Lord Irvine, I declare an interest, albeit
as a member of a different strand of the profession to solicitors,
having started 16 years ago in your chambers as a pupil.
(Lord Irvine of Lairg) I remember it well.
38. I thought you might. You have expressed
concerns previously, as have many others, about the capacity of
the Office for the Supervision of Solicitors properly, effectively
and efficiently to consider complaints made against solicitors.
You have indeed, previously, set targets that they determine a
given percentage of complaints within three months and within
five months. Otherwise, powers to appoint a Legal Services Complaints
Commissioner might be invoked. What is the latest figure you have
about the percentage of complaints processed by the Office of
Supervision of Solicitors in the three month and five month period?
(Lord Irvine of Lairg) I want to walk quite a narrow
road here because I do not want to demoralise in particular the
new government of the Law Society, if I may put it that way, which
is trying very, very hard to improve services at the OSS. First
of all, the Government accepts that the OSS has made real progress
in 2000 and we are grateful for the strong commitments to improving
service by the new President Michael Napier, and the last thing
I want to do is to demoralise people, when they are trying to
improve, with excessive threats. But the core problem with complaints
against solicitors is that complaints are still running at the
rate of one complaint for every five lawyers per year to the OSS.
The basic point that I want to make is that the handling of complaints
will only improve when a culture of client care pervades throughout
the legal profession. What I have really in mind, and I think
perhaps I am using language that I used when I last appeared in
front of you, the trouble with solicitors is that when they fall
out with their client they treat the management of the client's
complaint against them as if it was litigation by another means
instead of trying to arrive at an understanding. In the past year
there has been an excessive focus in the OSS on reducing the numbers
of backlog cases and there has not been a sufficient focus on
improving the quality of the decisions. To be fair, the OSS achieved
the numbers target of reducing outstanding complaints down to
6,000 by 31 December 2000, so that is good news, but they failed
on the quality target and they failed on the speed of processing
new complaints. David Lock, who is my junior Minister with delegated
responsibility in this area, set out a range of targets for the
OSS to achieve in 2001 and both the Government and the Law Society
consider that they are tough but achievable targets. I can tell
you what they are but I think that would be excessive detail.
What we are doing is we are receiving monthly information from
the OSS concerning progress and we will be looking at this very,
very closely over the next six months. So although there has been
some improvement and one must give credit where it is due to this
new administration, the jury is really out on whether the Law
Society has the capacity to handle complaints against solicitors
in the long term effectively. If I were forced to generalise,
I would say that the performance between July 1999 and December
2000 was overall disappointing but there is considerable evidence
of improvement in the latter stages as well as a strong political
commitment within the Law Society's current Presidency to improve
complaints handling. So there it is. The Law Society has itself
issued a consultation paper to its members. Basically the purpose
of the proposals in that consultation paper is to deal properly
with many more cases, as it were, domestically, so that they do
not get to the OSS, so that the OSS case load is less. They are
also proposing a Standards Board and a lay Commissioner for Complaints.
I welcome the introduction of a lay Commissioner—but I have
to say that it has not happened yet. They have proposed that there
would be a Commissioner to head a service complaints redress scheme.
They have proposed there will be funding provided by the Law Society
for a new Standards Directorate partly on the "polluter pays"
principle, and an overall cultural shift towards a better customer
focus. I have to say that I am disappointed that decisions on
these proposals were not taken by the Council of the Law Society
at its last meeting, but I also understand that they have to consider
a great deal of detail about how this will work in practice. I
am going use this opportunity of answering your question to say
that I hope that these issues come back in front of the Law Society's
Council with the least possible delay and that there is a positive
outcome.
39. Has the OSS ever achieved a target set for
it by your Department in 1999 to process 90 per cent of its complaints
within three months and all of them within five months?
(Lord Irvine of Lairg) No.
1 See Annex. Back
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