Examination of Witnesses(Questions 40-59)
TUESDAY 23 JULY 2002
SIR HAYDEN
PHILLIPS GCB, MR
IAN MAGEE
CB AND MS
JENNY ROWE
40. When do you hope to have the conclusion
of those inquiries?
(Mr Magee) I cannot speak for the Magistrates' Court
Inspectorate report. I think some time later this year. As far
as the information from the cracked and ineffective work that
we have put in hand is concerned, again it will be later this
year before results start to come through that we can act on.
What we will then do is seek to engage with Justices Chief Executives
in different areas to compare and contrast levels of performance
and try to get underneath the figures and statistics.
41. What do you think is a realistic target
to get the unnecessary attendance down?
(Mr Magee) I do not know. It is not all within our
gift either. I think the targets that we have got are proving
quite challenging to get down, and our first efforts must be to
try and get there with the help of the sort of methods that I
have explained to you.
(Sir Hayden Phillips) I think the recommendations
in the White Paper, as they progressively come on stream, particularly
in relation to tighter case management by judges and getting a
grip on criminal cases earlier, as we have successfully done in
the civil side, will over time make a real difference here, because
if you get defence, prosecution and all the witnesses in advance
of the trial to sign up to the key issues and a timetable which
really does work and in which you get co-operation, then I think
we should see quite a major change in the way things are done.
That is the world we look forward to and, also, one in which the
Lord Chief Justice can give practice directions about process
not just in the High Court and the County Court but right through
the totality of the criminal justice system, which he cannot at
the moment—magistrates' courts are quite separate. I think
in that way we can really make a much further advance, if we had
those tools.
(Mr Magee) May I mention one more thing, which is
quite exciting. In Essex, around Chelmsford and Basildon, we have
introduced a scheme called XHIBIT which stands for eXchange of
Hearing Information By Information Technology. That, for example,
allows us to contact the different agencies in the justice system
and give them a real-time update on what is happening in the Crown
Court there. What we have found is that it has an interesting
effect, due at least in part to the strong leadership that is
given by the resident judge there, on all of the parties to a
case, including the defence. This sort of system will only work
and work well if everybody understands what is required of them
and works towards it. So, again, it reinforces the points that
Sir Hayden was making about case management and case control as
an effective example of how one can use IT—I realise I am
leading with my chin talking about IT in any public sector environment—to
effectively speed up the justice process, and to change behaviour
in the justice process too.
Chairman: I think the mention of Essex
calls for a visit from Mr Russell.
Bob Russell
42. Actually, Chairman, it was a general question.
I am assuming that the closure of the magistrates' court programme
is not going to be halted, let alone reversed. That leads us on
to the quality and the location of the new super court. I wonder
if I could ask Sir Hayden whether the PFI route is delivering
quality new court buildings or is there a danger, by the very
nature of a Private Finance Initiative to generate a profit, that
corners are being cut in order that PFI companies can generate
a bigger profit? What is the quality of the new court houses,
both interior and exterior appearance?
(Sir Hayden Phillips) Speaking for courts that we
are involved now in designing, Cambridge, Exeter, Bristol and
Manchester, I can absolutely say that architectural quality and
design quality has been built very well into those courts. I do
not pretend to you that every single new-build court would necessarily
meet the standards you and I might want, and there may be some
risks in PFI, but there is no reason why—whether you are
going through a Public Private Partnership route or a straightforward,
normal public expenditure route—you cannot build design
and architectural quality into the nature of the deal. It gets
more complicated where we are not in direct charge—say,
in the magistrates' courts—but it can be done and, frankly,
the Lord Chancellor and I want our Department to actually be recognised
for taking this very seriously and trying to make sure that architecture
and design quality is built in. It has a cost but it is very,
very important. These are major civic buildings.
43. So there is no dumbing down?
(Sir Hayden Phillips) No. We have actually won an
award from the Commission for Architecture and the Built Environment
(CABE) for our approach to the creation of new courts. We want
to hang on to that award, and that is a clear commitment on the
part of the Department and of the Lord Chancellor.
Chairman
44. Can we turn to fees now? You have introduced
individual case contracts in both civil and in criminal cases.
Is that right?
(Sir Hayden Phillips) Yes.
45. The purpose of that is to remove incentives
for delay.
(Sir Hayden Phillips) The central purpose of contracts
is two-fold: it is, first of all, to make sure that you have a
better grip on costs of cases and you are not simply reacting
to people's bills and just having to pay them. The second purpose
is to assure the users of the quality of the service that is being
provided. In other words, in exchange for a contract the Legal
Services Commission will check on and audit the quality of the
service being provided. They are the central reasons, in general.
There are particular types of classes of case—for example,
very big cases—where we are introducing a specific contract
for an individual case and which we pay as the case goes along,
in agreement with those who are delivering it. That has the potential,
although it brings money forward, in the long-term to reduce expenditure
and certainly to reduce delay in relation to payments—so
you do not find yourself, long after the event, arguing about
how legal aid should be provided in a particular case. Obviously,
we hope that that mechanism, as it builds up and is going quite
well, will also assist us with the general problem of delay.
46. Have the lawyers signed up to this?
(Sir Hayden Phillips) Yes.
47. So you have not had difficulty finding lawyers
to take on that work?
(Sir Hayden Phillips) No. I think it is right to say
that across the country as a whole there are sufficient contracts.
There are certainly sufficient contracts across the criminal system.
We are a bit worried about the supply in relation to family cases
and asylum in certain parts of the country, some rural and suburban
areas. We have mentioned in our memorandum that there had been
a drop, particularly I think in the family area. With the Legal
Services Commission we have to keep a very close eye on that,
not just for the short-term but for the longer term. One of the
things we have done is to put some money—I think about £1.5
million—into training and development contracts into firms
to encourage people to come into this sort of work so that we
are continuing to build a long-term supply base in publicly-funded
work. There are various other things that are being done as well.
So the overall position is satisfactory, but with some spots of
difficulty which we really have to watch.
48. You are getting value for money?
(Sir Hayden Phillips) I think we are in a position
now, through contracting and quality assurance, to be able to
give the Committee much more assurance about value for money than
we would have been able to have done two or three years ago. Indeed,
the Legal Services Commission is looking at that the whole time,
and it would not, indeed, be giving out contracts to those people
it did not think represented value for money.
49. The complaint used to be that the legal
aid budget was going up and the number of cases being dealt with
was going down. Is that no longer the case?
(Sir Hayden Phillips) The legal aid budget in relation
to crime is going up, and I think it is right to say that 49%
of criminal legal aid goes on 1% of cases—the most expensive
and the most complex; the big, heavy serious fraud, or organised
crime cases. That often is not clearly known. That is going up,
and we would expect that to gradually go up; it is not something
which is within our control. We are required, obviously, to fund
the defence. In relation to civil provision, what we call the—
50. Just to be clear: are you saying that criminal
legal aid is now dealing with more cases?
(Sir Hayden Phillips) As to the number of cases, I
may have to be assisted. I think it is certainly dealing with
heavier and more complex cases, which I think is the main driver
for the increase in costs. In relation to the Community Legal
Service—ie, civil legal aid—it was £2 million
below provision last year. In real terms it is now at the same
level as it was in 1994-95. In other words, we have got much greater
control over the budget, partly as a result of taking personal
injury out and through Conditional Fee Agreements coming in, and
as a result of that we can target legal aid better than before.
I think I am right in saying that 90% of all new business in the
last year was targeted on children, family cases, social welfare
cases, immigration, housing, debt and education, which is where
the Government really has wanted to see legal aid money going.
So I think, in a small way, I would claim that is quite a success
story compared to what was in place before.
51. And the lawyers are all co-operating?
(Sir Hayden Phillips) As the first non-lawyer Permanent
Secretary of the Department, I am surprised at how co-operative
they are, yes.
52. You have not had to stuff their mouths with
gold?
(Sir Hayden Phillips) No, we have not, actually. Indeed,
we have held down rates. As you know, the Lord Chancellor has
reduced the use of QCs in the criminal courts and there has been
a substantial saving there. We have tended, where we are doing
remuneration increases, to target those on the areas where we
are shortest in terms of expertise. I forget the figure now, but
the general increase in legal aid remuneration has been very low
compared to increases in private remuneration, which is something
we, again, have to watch because if the disparity is far too great
there will be no incentive for a lot of solicitors, for example,
to stay with publicly funded work.
53. You have abolished the means test for criminal
legal aid, I believe.
(Sir Hayden Phillips) Yes.
54. Have you been able to quantify the effect
of that?
(Sir Hayden Phillips) I can give you some figures.
The numbers in terms of the money flowing through from what are
now called "Recovery of Defence Costs Orders" is not
that great, but the key thing was to do two things: one, it frankly
was a waste of time and energy to go through this immensely complicated
process, which on the whole was got wrong in a sufficient number
of cases for the accounts of this department to be qualified every
single year. That was just unnecessary and unacceptable. Secondly,
it built into the magistrates' courts a period of delay while
this work was done, which was much better used if it was not there
at all. I think there has been a considerable improvement as a
result of that.
55. So you have abolished a lot of bureaucracy,
it has not cost an enormous amount of money and you have reduced
delays.
(Sir Hayden Phillips) Yes.
(Ms Rowe) To date, 193 orders have been made against
income and 66 made against capital. In relation to the orders
made against income, they amount to £112,000 and the 66 against
capital amount to £89,000.
56. Right. The main point, anyway, is not to
get the money back, it is to get rid of the delay and bureaucracy.
Is that right?
(Sir Hayden Phillips) Absolutely. Delay and totally
unnecessary bureaucracy, which is a complete waste of time.
57. It has been a success. Good. Turning to
the Criminal Justice Reserve Fund, has it worked in practice?
Has it given you the flexibility you need?
(Sir Hayden Phillips) I think it has been a successful
innovation. It has enabled us to be able to deal with new pressures
that have arisen since any settlement has been made and it has
enabled us to take some new initiatives. There are a number of
examples I could give, Chairman.
58. Just one or two, yes, please.
(Sir Hayden Phillips) Well, if we take victims or
witnesses, money has gone in to deal with increased help for vulnerable
and intimidated witnesses and for extended witness support to
the magistrates' courts. We receive money from the CJS Reserve
for developing the criminal justice information technology in
our own area and that now, as one of the results of the SR2002
settlement, is very large sums of money. Something like £600
million over three years will go into IT in the criminal justice
system. We have been able to fund increased sitting days in the
courts as a result of, as it were, more cases coming through from
the police than we had originally anticipated and some money has
gone from the CJS Reserve to the Street Crime Initiative which
is now under way, so it has been quite a quick response mechanism
for putting resources into new initiatives and new areas. It has
also been good as it required three ministers in charge of three
departments to agree on the priority to give to it and that has
been a discipline on all of us to make sure that we do actually
work together and are choosing priorities that we share in common,
so, on the whole, a good story and the fund will continue at,
I think, £225 million a year over the three years from the
beginning of next year.
59. That seems to be a rather large increase.
I think the total allocation in 2001-02 was £85 million.
Have I got that wrong?
(Ms Rowe) The total money available in 2001-02 was
£100 million, but it was raised to £200 million in the
current year and then to £225 million next year.
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