Examination of Witnesses (Questions 140
- 159)
TUESDAY 23 JANUARY 2001
THE RT
HON LORD
IRVINE OF
LAIRG, QC, AND
SIR HAYDEN
PHILLIPS, KCB
140. That was the first appointment of its kind?
(Lord Irvine of Lairg) That was the first appointment.
We do have solicitor High Court judges who started off as circuit
judges and have been promoted to the High Court bench but Mr Justice
Laurence Collins, who was appointed to the Chancery Division,
was the first solicitor to be appointed to the High Court bench
direct from the profession, yes.
141. Are we unique in this country in having
a division between the two branches of the legal service?
(Lord Irvine of Lairg) No. You have it up to a point
in New Zealand and in Australia but the point is that it is not
something which the Government as such has a policy on. It is
a question for the profession to decide how it wishes to organise
itself. If I can respond. In 1990, when solicitors were given,
by statute, the right to acquire higher court rights of audience—and
it was absolutely correct that they should do so because it was
a restrictive practice to disallow them—a very, very small
proportion, I cannot remember the figure but I think there were
about 80 or 90,000 solicitors in the country—I will be corrected
if I am wrong—probably nearer 90,000 and I think that the
figure of solicitors who took up higher court rights of audience
was only about 800 in all. Now, of course, I certainly do not
think that advocacy skills are the sole skills which are required
to be a good judge. I do not think that for a second. I just give
you that fact to illustrate how comparatively rigid the divisions
between the two professions are, even when bars are removed.
Mr Winnick: I am going to ask Mr Stinchcombe
if he will ask the next questions regarding the appointment of
QCs.
Mr Stinchcombe
142. Lord Irvine, the Joint Working Party suggested,
as I understand it, that the earnings of individuals applying
for silk should be removed from the list of relevant considerations
for appointments. That was a recommendation that you rejected,
is that right?
(Lord Irvine of Lairg) Earnings are of very, very
little importance. Let me put it in perspective and if there are
any misperceptions about it then I will obviously make it my business
to correct them. Size of income is a very, very rough guide to
size of practice but it is only rough because there are certain
categories of work which attract much more reward than others.
I think that the Legal Aid work attracts much less reward. Pro
bono work attracts no reward at all. Certain categories of
work, for example in the planning sphere, if you appear for a
developer who is willing to pay high fees you get a lot more money
than if you appear for a local authority which is not able to
do the same. All these considerations are very, very well known
to me and I would be very concerned if there was any notion around
that people in order to heighten their opportunities for silk
have to go for maximising their income.
143. I am obliged. These are issues that I covered
with your colleague, Sir Hayden, last time. Given that, why do
we, nonetheless, still continue to include the income in the list
of answers that applicants have to give?
(Lord Irvine of Lairg) I have difficulty in saying
that it is irrelevant. For example, if you have got two practitioners
who are practising in the same sphere of law with the same sort
of portfolio of clients, which happens in many, many areas, then
the income is a rough guide to size of practice but it is not
something which I give any great weight to at all. You could have
somebody who wants, for the best of reasons, to devote a significant
amount of time to pro bono work. You could have a lawyer
who for very good reasons wants to take time out from practice
to do a certain amount of teaching at a university or even do
what solicitors do, but barristers very rarely do, take a sabbatical
for a few months abroad. I can absolutely assure you that there
is no significant adherence to a pecking order based on earnings.
144. All of which is extremely welcome and extremely
helpful. To what extent are those other possibilities—that
a barrister or a solicitor has chosen to work for local authorities
or public authorities where their earnings are perhaps less, or
chosen to offer services pro bono to an action group or
chosen to take a sabbatical or to go into academia—capable
of being properly reflected in the applications?
(Lord Irvine of Lairg) I think they are. I think you
have a good point here. One does not want to give a false impression
you see either. I think, as you recognise, it is all about perception
and there are many false perceptions around across the world,
if I may say so, which have no relationship to the reality at
all. You do not want to compel people to do pro bono work
to heighten their chances, that would not be right either, but
what you do want, you do want to know if people are doing pro
bono work because that will explain why they might have a
lesser profile in the higher courts for argument sake. I have
a very, very open mind to improving this form in any way I can.
I devote an enormous amount of personal attention and time to
looking at these applications and any suggestion to me that there
is anything about the form or the information that is unfair I
would consider and if there are any misperceptions around it is
my duty to try to dispel them.
Mr Winnick: You may or may not be relieved,
Lord Chancellor, to know that we are coming to the last series
of questions on magistrates. I am going to ask Mr Singh to ask
you one or two questions.
Mr Singh
145. Thank you, Chairman. Lord Chancellor, over
the summer I was fortunate enough to spend some time with the
chairman and representatives of the bench in Bradford and I was
very impressed with their commitment and their dedication to their
job and the experience that they obviously had. They were quite
openly concerned about their future as a lay magistracy and I
would like to ask you whether you can allay their fears in terms
of those concerns and if there are changes to be proposed, what
the nature of those changes might be?
(Lord Irvine of Lairg) First of all, let me say that
there is no stronger advocate or supporter of the lay magistracy
than I. I have a very, very high regard for them. It is true that
there was a great amount of media speculation, I think it was
at the time that you are referring to, which was suggesting that
the days of the lay magistracy were numbered and that they were
all going to be replaced by stipendiary magistrates. There was
no truth in it, there is no truth in it, if you consider this
about the lay magistracy, that they are a first class example
of quality citizenship in action. They give their time for no
reward, they reflect the community that they serve, there is great
public confidence in them and they represent par excellence
a principle of government which this Government promotes, which
is the promotion of volunteering. I feel very, very strongly about
this. There was a research report published recently which was
jointly prepared under the aegis of the Home Office and my Department
by Rod Morgan and it was called Judiciary in the Magistrates'
Court. Let me quote what I said on publication and let me
quote what the Home Secretary said. I said: "The report concludes
that eliminating or greatly diminishing the role of lay magistrates
would not be widely understood or supported. At no stage was it
suggested to the researchers that in most respects the magistrates'
courts do not work well or fail to command general confidence.
Lay magistrates represent civic engagement in the justice system
and Government has no intention of removing them." The Home
Secretary said: "The unpaid work of the lay magistracy is
greatly valued by the Government and we are committed to ensuring
that they continue to play a significant part in the criminal
justice system." So I hope the opportunity that you have
given me in this question to repeat that gives it some currency
in the media.
146. I am very glad to hear that, Lord Chancellor.
I think it would be a great shame if we did anything else. Magistrates
provide a direct link from the community into justice, they represent
that community and in a way they are as near to being judged by
your peers, apart from the jury system, as I think you can get.
(Lord Irvine of Lairg) I agree with that. In our way
our country allows a quite remarkable lay involvement in the system
of justice. You are quite right, the lay magistracy typify it,
the jury typifies it, and I think our justice system is better
for it.
147. One of the things the lay magistracy has
been very good at is reflecting local communities in terms of
gender balance or ethnic balance.
(Lord Irvine of Lairg) Yes.
148. In terms of ethnic balance I believe they
are slightly ahead of the total representation of the population
and 50 per cent of the lay magistracy are women.
(Lord Irvine of Lairg) That is correct.[4]
149. In that sense, and we have been discussing
the higher judicial appointments, they are doing extremely well.
However, the basic principle of what they represent was, and still
is I believe, a political balance.
(Lord Irvine of Lairg) Yes.
150. I understand that you believe that no longer
should be the criterion on which we draw the magistrates, is that
correct?
(Lord Irvine of Lairg) Successive Royal Commissions,
but they are very old, down the century, the 20th Century, have
regarded political balance as a proxy for social balance. I took
the view that how you vote is old-fashioned today and the notion
that you come in a particular social category if you vote Labour,
Conservative or vote Lib Dem is just not correct today. I had
a review consider at great length whether we could find some other
criterion than political balance as a proxy for social balance.
I am sorry to say that they failed, they did not come up with
anything, so we do continue to use political balance. It does
ensure in a sense that the bench is politically representative
of the neighbourhood it serves, but I would agree that it is not
a sure yardstick of social balance. If anyone here can tell me
what the sure defining test is, I will look at it with the very
greatest of care.
Mr Singh: It causes me some concern because
I believe that the membership of the Conservative Party is quite
aged now.
Mr Malins: Speak for yourself.
Mr Singh
151. Thank you for your answers. I can tell
my local bench that it is thumbs up from you?
(Lord Irvine of Lairg) Yes.
Mr Singh: Thank you.
Mr Winnick: Lord Chancellor, I said that was
the last of the series of questions but I understand, however,
Mr Linton and possibly one other Member would like to ask briefly
about access to justice.
Mr Malins: Nothing from me.
Mr Linton
152. A couple of questions on the Community
Legal Service. If the Community Legal Service is to have 100 per
cent coverage, do you think there should be a statutory duty on
local authorities to fund the law centres?
(Lord Irvine of Lairg) We did look at it at the time
that the Community Legal Service was set up. We took the view
that in order to establish the Community Legal Service concept
and the Community Legal Partnerships, which are essentially partnerships,
as you know, between local authorities, between advice services,
between lawyers, that we should proceed voluntarily. It has been
such a huge success. CLS Partnerships now cover 74 per cent of
the population of England and Wales, substantially ahead of my
expectation at the time we embarked on the venture. Therefore,
if funding problems do not emerge, if the local authorities, as
they are doing up and down the country, continue to support these
voluntary bodies which are working so well, then I would leave
it there but, of course, nothing is excluded. This is, in fact,
a very good news story, the Community Legal Service.
153. My local authority does not fund law centres
and I do not think ever will unless it is made compulsory. One
of the purposes of this reform was to refocus spending on social
welfare law.
(Lord Irvine of Lairg) Yes.
154. I do not know how that fits in with the
reduction of, I think, 124 million in spending that is in your
budget. How does that square with a refocusing onto social welfare
law?
(Lord Irvine of Lairg) The Legal Aid budget is broadly
consistent over time, it is £1.6 billion a year or thereabouts.
155. But I am talking about the Community Legal
Service's budget which goes down from £810 million to £686
million in 2003. I am sure I am quoting the figures from your
annual report.
(Lord Irvine of Lairg) Let me tell you what I understand
to be the position. This year expenditure on the Community Legal
Service will be around £780 million. That is despite a base
line of £623 million, so it is up on the base line. Average
annual expenditure over the next three years will be £710
million. That, again, is a substantial increase over this year's
base line but less than this year's annual expenditure, that is
the point. The fact is that we have made savings from the fact
that most personal injury cases, which represent about £50
million per annum, are now financed by the private sector and,
therefore, I have got no anxiety about these funding figures at
all. It is true that headline expenditure over each of the three
years will be a bit less than this year's expenditure but above
base line.
156. Just to avoid confusion, I have no problem
with the personal injury cases, I just thought that the idea was
to refocus, in other words to shift spending away from personal
injury towards social welfare law. There is a lot of very good
work done by law centres certainly in my area which could do with
greater funding. Is that the intention?
(Lord Irvine of Lairg) Of course, the money is now
much better targeted on priority need, on the most deserving cases,
which are social welfare, mental health, housing, domestic violence.
The legal help budget is going to be fixed at £236 million
over the next three years, which is an increase of £35 million
per annum. I am not troubled by these figures.
157. One last point on this: in Scotland they
now have Legal Aid for employment tribunals, is there any thought
now that the new system is bedding in to extend Legal Aid to tribunals?
(Lord Irvine of Lairg) Thought has obviously been
given to this subject in terms of the Human Rights Act apart from
anything else. I have to say that the Government has no present
plans to extend Legal Aid to employment tribunals. One of the
problems about employment tribunals—it depends what way
you look at it, of course—is that there is a no cost rule
in employment tribunals. There is a cost rule in personal injury
cases. The rule is that the cost follows the event and in a personal
injury case, and this is what has aided the acceptance and progress
of conditional fee agreements, if you win you recover the uplift
and you recover the insurance premium from the defendant who,
after all, did inflict the injury on you in the first place. I
think one thing that we do have to look at is whether the absence
of a cost rule in the employment tribunals makes sense today when
the compensation that can be recovered is so much more than it
was before. The reason for not having a cost rule traditionally
was that poor people would be deterred from bringing a case to
an employment tribunal by the risk of being liable for the employer's
costs if they lost. Whether that reasoning holds good today is
something that does deserve progressive thought, I think.
Mr Winnick
158. I wonder if I could leave you on this particular
point, Lord Chancellor, with the feelings of the National Association
of CABs who have a number of concerns. I think you would agree,
would you not, that the CABs perform a very important service
up and down the country?
(Lord Irvine of Lairg) Absolutely, yes, 100 per cent.
159. Of course, they were the ones who originally
expressed concern over the fees for immigration and visitors'
appeals, which we have already gone through.
(Lord Irvine of Lairg) Sure.
4 Note by witness: The Lord Chancellor's Annual
Report to Parliament on Judicial Appointments for 1999-2000 (Cm
4449) shows that in 1999-2000 8.6 per cent of those appointed
were from ethnic minority communities which is ahead of the percentage
of the population believed to come from ethnic minority communities.
This continued a steady increase in the proportion of the Bench
as a whole drawn from these communities so that by the end of
1999-2000 4.5 per cent of the Bench as a whole (up from 4.2 per
cent in the previous year) were from ethnic minority communities. Back
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