Examination of Witnesses(Questions 60-79)
TUESDAY 23 JULY 2002
PHILLIPS GCB, MR
CB AND MS
60. So what are you going to do with all the
(Ms Rowe) Spend it.
61. Yes, I gathered that, but on what?
(Sir Hayden Phillips) It is extremely good, which
Ms Rowe will tell you about.
(Ms Rowe) We will be continuing the funding from the
current year. There is a very long list of outstanding claims
which people wish to make against the Reserve for improvements
in IT, further developments of witness facilities, more staff
to help out with tackling delays, that sort of thing, so we actually
have many more demands on it than can be met.
62. You have done rather well there, have you
(Sir Hayden Phillips) Yes, I think it has been a very
useful exercise. It has enabled us to respond more quickly, having
the resources, rather than saying that we cannot do something.
It has also enabled us to try out new ways of doing things and
let me give an example which I think is an extremely valid one.
One of the things you really have to avoid is delays and to try
to get all the players to come to court at the right time so you
do not get adjournments is to have people working on case progression
and tracking it through the system. Now, we have used money from
the CJS Reserve to build up that capacity in the magistrates'
courts and I think as we do that, along with the other things
we mentioned, I hope you can see us continuing to tackle this
problem of delay, so I think it has been a successful innovation
both for reasons of additional resources, flexibility and innovation,
and a real coming together by the three departments to concentrate
63. The Home Secretary said the other day that
in time we will integrate the management of all the courts into
a single organisation. What are the implications of that for you,
for your Department?
(Sir Hayden Phillips) Well, the implication is very
significant because my Department will be responsible for the
organisation that results from that integration. As I mentioned
earlier, I think, Chairman, in answer to one of your initial questions,
we shall be absorbing, for example, 10,000 staff from the magistrates'
courts. All of this will require legislation obviously to create
a new arrangement, but the plan is basically to be able to have
a system which can set standards throughout the criminal courts
in England and Wales, a mechanism to be able to reach down into
the system to deal with those courts which are performing less
well, which is quite difficult to do at the moment, and the performance
varies quite widely across the country, but to couple that with
what we would like to think will be a wider system of local accountability
through management boards which will include consumers of services,
magistrates, other local people, whereas at the moment the magistrates'
courts' committees are not required to draw in the whole range
of users of services, so we want to try to balance a national
structure with a new system of local management boards which will
bring in a much wider range of people and which will hold local
managers to account, so that is the sort of structural change
that we have in mind. Now, we have not set out a blueprint for
precisely what this should be because we want to work that out
by talking to those who are involved now on the ground, and that
will take place over the next 18 months or so and, as I say, Ian
Magee will be in charge of this very major project which is a
massive change in the criminal justice system.
64. Over what period of time do you expect that
to be carried out?
(Mr Magee) There are some big issues to settle, so
it is going to take some time, but my guess, and it is a guess
at the moment, is that I doubt that the new single agency could
be introduced much before 2004-05. You can imagine the sort of
issues from managerial structures through terms and conditions
to ensuring critically that the local accountability that Sir
Hayden referred to is actually captured so we get the proper balance
between centre and local.
65. And have you got the money to do it in the
(Sir Hayden Phillips) We have money in the recent
CSR. What we are having to do now, because obviously not everything
was funded, is to sort out our priorities and see how much we
can devote to this exercise and what that implies for the timetable
and the pace of change, so I cannot give you a definitive answer
to that question, but we shall certainly need to put some money
into this, otherwise it will not work. It will take us, I think,
until the early autumn to make decisions about the priorities
across the Department in the light of the spending settlement
we have had and I should not sort of prejudice that by saying
66. I saw an article in The Times the
other day which suggested, well, the headline was, "Lack
of money will delay justice reform for 10 years", and it
said that a key claim in the White PaperI beg your pardon,
this is about a radical shift in jailing minor offenders which
is unlikely to proceed for several years because of lack of funds.
Sorry, I am jumping about a bit.
(Sir Hayden Phillips) Well, I think that was an interview
with Lord Falconer.
67. It was, yes.
(Sir Hayden Phillips) In which he indicated that on
the Home Office side, in terms of a range of things, he did not
believe that every aspect of the White Paper was fully funded
at the moment and, therefore, some things would take a very long
time. I think it would be rather hazardous of me to comment on
the Home Office's business.
68. Yes, I am sorry, I got the wrong end of
the stick there, I think. You are satisfied, as far as the integration
of courts is concerned, that you have got the funds to proceed
(Sir Hayden Phillips) I am not satisfied that we have
the funds to proceed as fast as we would want. What I am saying
is we have got to do this. We need to sit down and look at the
resources we have been given, some of which have been ringfenced,
particular things like information technology, and then see how
much we can devote to the integration process and in the light
of that, we will be able to let the Committee know much more about
the timescale and the nature of the operation, but I am afraid
we will not be able to let you know that until the autumn.
(Mr Magee) There are a number of things that we are
getting on with now which, far from requiring money, have the
potential to save some money. I have got, for example, in mind
courts and utilisation. We have an active dialogue, a co-operative
dialogue between the Justices' Chief Executives and ourselves
about how we can mutually make better use of the big estate that
we have got between us and that is beginning to produce results.
For example, later on this year in Manchester we will be able
to continue to provide county court services by moving some county
courts lock, stock and barrel into better accommodation in the
magistrates' courts. My people are going around each of the 42
areas discussing with Justices' Chief Executives where there is
opportunity for us to make common cause. Another example might
be procurement. There is a variety of procurement arrangements
out there at the moment and we may just be able, and I do not
want to give any hostage to fortune, but we may be able to generate
some revenue by dint of a better approach to things.
69. Coming back to the organisational and structural
change, it strikes me that this is centralising, taking up to
the centre rather than sending down to the grassroots. Is that
a fair comment by me?
(Mr Magee) No, I do not think so actually, if I can
be so bold. What we want to get is the best out of two organisations
that are very different in their delivery systems at the moment.
The notion of a central agency will allow us to set standards,
as Sir Hayden was saying, it will allow us to intervene where
we feel those standards and particularly performance standards
will be met, but critically, and I think this is the real answer
to your point, critically what we are doing is we are creating
a single agency out of the two sets of organisations that exist
at the moment by ensuring that we take the views of all of those
who are responsible for local delivery of business and do not,
on the contrary, impose something from the centre of Whitehall.
I think that was made quite clear in Chapter 9 of the White Paper
and that is the firm steer that I have in carrying forward this
70. Would you accept that rather more of the
magistrates' courts' committees are of the view that perhaps this
is centralising and they are going to lose their local autonomy?
(Mr Magee) Well, I do know that that view exists,
but what I have always sought to do is to try to work with all
shades of the spectrum and to try to make progress. Once the headlines
are out of the way, "Central good, local bad", or "Local
good, central bad", we get down to, "Well, let's talk
about brass tacks here and how we can actually fulfil the policy
intention which was set out in the White Paper on empowered local
councils' and local communities' management boards, but with a
centralised structure that enables that to happen". People
have to earn flexibility locally because they do not get it automatically
and that means having the pieces in place in order to earn that
71. Chairman, I will put a marker down as I
expect we shall return to this another day.
(Sir Hayden Phillips) Could I just add, if I may,
Chairman, just a couple of comments. I do understand the concern,
the absolute commitment to local justice, local delivery, that
was absolutely there, and to the lay magistrates. One thing that
comes shining through Robin Auld's Report and the White Paper
is a very clear commitment to the lay magistrates which, you will
be aware, people felt had been threatened two or three years ago
and it is absolutely not the case. Local magistrates, 30,000 volunteers
across the country, will be at the heart of this new arrangement.
Secondly, what is interesting is that there is no requirement
on magistrates' courts' committees to consult the court users,
the local community or local authority about the management decisions
they take. We intend to develop a structure which enables that
to happen by, as I was saying earlier, a wider process of consultation
and accountability locally, and I know your Committee will watch
this space and make sure that what I am saying is carried through.
At the same time there will be very considerable advantages in
being able to have this happen within a national structure and,
in particular, as I mentioned earlier, because at the moment there
are procedural differences in the courts which are unnecessary
and you can have a single procedural code which runs right through
which enables there to be consistency between the different tiers
of the justice system, and I know that we are going to set up
statutory criminal procedure rules whose writ will run right through
the system, and I know the Lord Chief Justice wants to get on
with that work administratively. So that is the sort of balance
we shall try to strike throughout this process of consultation.
72. Going back on a theme, one of the complaints
of lawyers is that it took a very long time for them to get paid,
their legal aid. Was there any justice in that? I rather think
there was, was there not, and is it still the case?
(Sir Hayden Phillips) Yes, there was justice in it
and when you are dealing with so many payments ex post facto
you get yourself in a position where delay increases. I think
the position has considerably improved by having standard fees
in magistrates' courts, by having standard graduated fees for
cases, I think, up to 25 days elsewhere and of course in the very
heavy cases this is no longer a problem because, as I say, we
are doing individual contracts and people are paid as the case
develops, so I think in that respect the cash is more quickly
in their hands and that is something that has been satisfactorily
improved. There may be still some problems in some areas where
the after-the-event payment system takes place, but we are reviewing
those and I think what we want to try to do is put in place arrangements
which encourage better case preparation, so we are tilting the
fees towards getting the work done well in advance and, in return
for that, trying to pay people more quickly. It will be a new
development and I hope we can welcome that and do that reasonably
73. The Home Office has a target, as you know,
of moving some 30,000 failed asylum-seekers a year, and that is
the Home Office side of the equation. Do you expect that that
target will be reached or anywhere near it which would discourage
people from appealing where there is not a great deal of merit?
(Sir Hayden Phillips) Yes, I think common sense indicates
that must be the case.
74. So you are pretty optimistic that the number
of immigration appeals will decline?
(Sir Hayden Phillips) No, not necessarily because
what this turns on, and I am following the logic of the question,
is on the number of removals reaching a level at which people
say to themselves, "I have a manifestly unfounded claim.
There is no point in my going on through the system because the
system is going to decide against me", so I am not suggesting
that there will be a decline in appeals necessarily, though I
would hope that would be the case, but I think the Home Office
would acknowledge that they are still quite a way from trying
to meet that removals target.
75. Perhaps your answer to some extent reflects
a certain reserve as to how far the Home Office will be able to
achieve its target, or is that an unfair question?
(Sir Hayden Phillips) I think I had better make no
further comment on that. I think you may have asked these questions
of my colleague and I had better not give an answer different
76. There are going to be, arising from legislation,
certain categories of asylum-seeker cases being heard from abroad.
Could you give any details about that?
(Sir Hayden Phillips) The provisions in the Bill going
through the House now. I think there are two things at the moment.
I cannot give a definitive view, I am afraid, because you have
to make a series of assumptions about how many such cases there
will be before you know quite what the consequences are. We obviously
have experience of handling appeals from abroad, visa cases, so
it is not, as it were, a new development from the point of view
of the appellate structure. What I am not clear about myself and
I am not sure that my advisers are either yet is what the number
of such cases would be because our particular concern would be
to ensure that we were resourced to be able to handle these adequately
if Parliament approves these powers, and it is quite difficult
for me to comment on something which is still going through Parliament
on which we have yet fully to bottom out with the Home Office
what assumptions they are making about the number of such cases.
77. In fact, as you indicated, the system is
such that when someone is refused permission to come to Britain,
be it for permanent settlement or for a visit, the appeals are
heard in the United Kingdom in the absence of the appellant. That
was the system from the very beginning, from the 1970s. Is that
(Sir Hayden Phillips) Yes, that is right.
78. Are you of the view that if what is now
going through Parliament is brought into effect, hearing cases
of asylum from abroad would lead to much saving as far as cost
and other related measures are concerned?
(Sir Hayden Phillips) It entirely depends, I think,
on the number of cases which arise and this is a Home Office area,
but clearly you have got to return people to a country which is
safe from that point of view and that, therefore, needs to be
assessed and you need to look very carefully at the sort of categories
of case that this would apply to. I assume it applies to cases
which the Home Office would certify, using the old language, as
"manifestly unfounded" and coupled with the fact that
they would have to be sent back to a safe country, a safe country
of origin or a safe third country and that you had the co-operation
of the authorities there, so there are a number of variables which
need to be sorted out. I think the only area which would concern
me, and it is very difficult again to be precise about numbers
here, was that if an appeal from abroad failed, I believe there
would be a route for the judicial review of that decision and
if the numbers were very high, we would be putting pressure on
the High Court which could be a particular demand which was quite
difficult to meet, but, as I say, this is not firm territory yet,
Mr Winnick, I am afraid, so I cannot really go much further than
I am at the moment.
79. It is all a very sensitive area. One person
only has to be denied asylum and be persecuted in such a manner
that he or she could lose their lives for the whole system to
be brought into discredit.
(Sir Hayden Phillips) Well, I agree with you, but,
as I say, these are essentially matters for the Home Secretary.