Examination of Witnesses(Questions 120-139)
TUESDAY 23 JULY 2002
SIR HAYDEN
PHILLIPS GCB, MR
IAN MAGEE
CB AND MS
JENNY ROWE
120. Following the spending review have you
any plans to increase the fees for publicly funded work?
(Sir Hayden Phillips) I would love to be able to answer
that question but the Lord Chancellor has not taken decisions
about that and I think that I would be pushing my luck if I was
to say either yes or no because frankly we have got to have a
look at that as part of both the SR2002 decisions on priorities
and as a part of trying to tackle some of the gaps that are emerging
and the frailty of some bits in the supply network.
121. Could we go on to criminal legal aid which
you have touched on before. You did talk about the Recovery of
Defence Costs Orders before and I was surprised by the statement
you made in saying that it was not all about the recovery of public
money. I am quite surprised by my brief in that I do not understand
how this operates. My brief tells me that in 2001-02 the Special
Investigations Unit accepted 809 referrals from the Crown Court.
Of these, 632 cases required full investigation. Investigations
were concluded in 292 cases and reports submitted back to the
courts. The Crown Court made 22 RDCOs. That seems to me an awful
lot of work for very little outcome or output and it raised £141,000-odd.
How much has all that administration cost? If so little is being
produced, why are we bothering?
(Sir Hayden Phillips) Why are we bothering? We are
bothering because I think we should clearly make an effort, your
question is about proportionate effort, to recover costs at the
end of the day from those who can genuinely contribute to them.
I have to say I cannot immediately answer the question what the
administration cost against the recovery rate was but, if I may,
I will get a note[4]4
sent in that deals with that unless one of my colleagues knows
it offhand.
122. Do you not think it is a pretty poor show
that out of all this work only 22 Orders were made?
(Sir Hayden Phillips) The figures as up-to-date as
we have them from April 2001 onwards, ie roughly just over a year
ago, are 193 Orders against income and 66 against capital. I do
not know what our expectations or projections were, I imagine
it was too difficult to do that. This was a total of something
just over £200,000. Perhaps I could just repeat something
I said earlier, if I may. Clearly we will have a look at the administration
costs and address your point about proportionality, although I
think people would say that those who really can pay should contribute
something. The comparison was that I think on the means testing
that went on before an enormous effort was put in and I think
I am right in saying that payments were only made in 1% of the
totality of all the criminal cases going through the courts. That
was wholly disproportionate—wholly disproportionate. As
I say, it ended up with our accounts being qualified every year
because people made mistakes regularly and, secondly, it built
in a delay that was totally unnecessary. As I said earlier, I
think that was a waste of time. I am sure this is a better system
than that but I am afraid I do not have the information about
the costs at the moment that I can give you to set against the
income. That may not be the only issue because I think there will
be a strong feeling among many people that if someone is convicted
who does have means and can pay towards the cost of the case it
would be right from the taxpayer's point of view that they should
make a contribution.
123. I think the public would entirely agree
with that.
(Ms Rowe) In fact we are reviewing the operation of
the Orders at the moment. Internal auditors are involved in that
and they will produce advice on how the scheme is working and
if it can be made to work better.
124. Sir Hayden, you did say earlier that 1%
of cases are taking 49% of the criminal legal aid budget. I think
the public would like to see recovery of costs from drug traffickers,
people traffickers, people engaged in smuggling. Why are we not
doing more in that field through these Orders?
(Sir Hayden Phillips) I entirely agree with that.
It is possible to freeze people's assets, it is possible to get
contributions in principle here, but you have to be able to have
the evidence that you can display and it is convincing and you
have to be able to get your hands on their goods or their money.
This will be done where it can be done but from the numbers we
have given you here we have not had that very many very high cost
serious cases in which very large sums have yet been able to be
achieved. It would be our policy to do exactly what you say.
125. I think we would like to hear an assurance,
or reassurance, that there is a will to do this.
(Sir Hayden Phillips) There is a will to do that.
This is a combination of, our operations and Home Office policy.
Again, if it is helpful, because I cannot answer for the Home
Office aspects on this, I could put together a note agreed with
them about what the powers are, what we can do, and illustrations
of the sort of cases which on the face of it we might have wanted
to have got some more out of the system but the reasons why we
may not have been able to do so.
Chairman
127. It would be helpful as well to know how
much it cost to get back this £141,000. You have already
agreed to do that, have you?
(Sir Hayden Phillips) Yes. I hope I said that is something
we will certainly give you so you can look at the proportionate
figures.
127. We appreciate that it is early days and
this has only been up and running since April 2001, so there is
some way to go.
(Sir Hayden Phillips) Absolutely.
Mr Singh
128. Changing the subject slightly. We are running
fixed contracts for low cost cases and there is a pilot running
for high cost cases but are there any plans to extend fixed contracts
to the higher cost cases?
(Sir Hayden Phillips) We would like to be able to
push that further. The fixed cost regime and the standard fees
regime have been quite successful in controlling cost and also,
as we were saying earlier, lawyers knowing exactly where they
were and not having to wait until after the event. As usual with
these schemes to roll them out means bringing cash up front until
you get to a steady state and I am afraid it is really a question
of looking to see how much resources we can put into this as opposed
to other priorities to see over what timescale we should do it.
The information I have indicates that where we have contracts
in the very high cost cases that is proving a successful way of
managing them, both in keeping costs down and keeping a control
over the quality of the work that is done.
Mr Singh: Turning to complaints against
solicitors, you were interrupted when I thought you were getting
to a very interesting part of your statement. I think you were
saying that you were very happy with the operation of the Office
for Supervision of Solicitors and its performance so far.
Chairman
129. I do not think he was.
(Sir Hayden Phillips) I think I was saying precisely
the opposite. Obviously I have lost my powers of explanation this
morning and I do apologise if that is so.
Mr Singh
130. My question is that we as Members of Parliament
and certainly many of our constituents are not happy with the
way it operates. Can you justify your confidence in the Office
for Supervision of Solicitors?
(Sir Hayden Phillips) Let me make clear what our position
is and this is what the Lord Chancellor has said. We are not happy
with its performance. We have asked for a whole series of improvements
to be made in turnround times for dealing with complaints and
in the quality of the way in which they have been dealt with.
We have set a whole range of targets, covering a range of activities
and they are not hitting those targets, they are below them, and
that is not good enough. In addition to that we have asked the
Legal Services Ombudsman to keep a very close eye on the Office
for Supervision of Solicitors and complaints handling and that
she is doing and she is doing that successfully. The Lord Chancellor
has taken powers in the Access to Justice Act if he thought it
was useful and right to actually put in a Complaints Commissioner
on top of this exercise. He has not at the moment decided to do
that, but to try to enable the Ombudsman working with the OSS
to make an improvement. On the other hand, to be fair, I should
say that the Law Society have put in place a new redress scheme.
They have announced the setting up of a lay commissioner, an independent
lay commissioner. Sir Stephen Lander takes on this job in November.
I know they genuinely want to try to improve the position. It
is not coming through at the moment and I have to say there is
quite a long way for them to go before they would satisfy us,
and you as Members of Parliament, that complaints were being handled
in the way we want.
Chairman
131. Maybe Sir Stephen Lander is going to tap
their telephones.
(Sir Hayden Phillips) I think he has a range of qualities,
Chairman, and he has not been selected for that particular experience.
David Winnick
132. The Office of the Immigration Service Commission
in his annual report—Do you have that?
(Sir Hayden Phillips) Yes.
133. He made criticism of some solicitors because
apparently advisers in the immigration field who have not been
registered in some instances, according to the Commissioner, and
I am looking at the annual report, having failed to obtain registration,
were incorporated in the solicitor's practice and yet operate
independently of the solicitor. In other words, the solicitor,
knowing full well that the immigration adviser had not been approved
for registration, was quite willing to allow such a person to
operate within the solicitor's practice and the Commissioner,
understandably, was very critical of that. Is this too recent
for you to comment?
(Sir Hayden Phillips) I think the annual report is
published today. I have not, I am afraid, settled down to it in
detail. If that is happening then obviously with the Commissioner
we need to look at ways in which it can be made to stop happening
because the good regulation which he is meant to ensure in this
area has got to make sure that there are not shades of grey about
whether people are properly qualified or not properly qualified.
134. It is a very serious complaint, it is obviously
unprofessional conduct as the Commissioner points out, but it
is unfair really to expect you to give an off-the-cuff response
other than you have. I wonder if you would be good enough, with
the Chairman's agreement, to send us a note about this and what
action is intended to be taken by the Lord Chancellor if he considers
that this merits an investigation.
(Sir Hayden Phillips) I will certainly do that.[5]
David Winnick: Thank you.
Chairman: Now, we are in the miscellaneous
section. Mr Cameron, do you have any further questions?
Mr Cameron
135. Yes. I am afraid they are rather miscellaneous.
Just on the Office for Supervision of Solicitors, they are in
the last chance saloon the Lord Chancellor has said, although
not in those terms. How long have they got before you threaten
some sort of statutory regulation? Have you put a timetable on
it?
(Sir Hayden Phillips) No. I think the Lord Chancellor
has made it clear that he keeps that option in mind. Self-regulation
is a privilege, not a right. We believe they should be given a
chance to put in the new redress scheme and the lay commissioner.
We believe that the Legal Services Ombudsman should be given a
chance to do the work she is doing with them to see if it can
be improved. As I said earlier, he has the power to put in a new
Complaints Commissioner if that is the right route, but equally
it may well be that we ought overall to review the way that regulation
works more widely in this area and that is something we should
take into account.
136. Turning to public spending, I just have
a couple of questions on page 94 on your public spending charts.
You describe particularly in the area of asylum appeals a huge
volume of work and I just wondered whether you wanted to comment
on the fact that your estimate outturn for 2001-02 of £2.8
billion is actually more than your plans for two years' time.
It seems that your budget is going backwards. Will you be able
to complete the work with that budget or does the CSR change that
fundamentally?
(Ms Rowe) There are some changes as a result of the
spending review but also in 2001-02 we did receive additional
funds from the Treasury for asylum and immigration work. That
was only given to us for that year at that point and we are in
discussions with them at the moment about what should be carried
forward into the current year. There is likely to be another addition
for that.
137. I do not know what other members of the
Committee would find helpful but I would find it really helpful
in terms of looking at how the Department has performed if we
could have what the budget was for each year and then what the
outturn was for each year. All we get are outturn figures so we
only know what you have spent, we never know what you were meant
to spend unless we really dig down into the figures and go to
the Treasury. Is that something we can look at for future years?
(Sir Hayden Phillips) Absolutely, and I think we also
will see whether we cannot find a way because now the budget that
is formally set for us is not necessarily the figure we actually
have, ie—No, wait. It is not total Sir Humphrey, I assure
you. There is the CJS reserve which we can draw down on and there
is now a new asylum budget shared with the Home Office and, again,
that will be additional. I think what we might try to do, and
we can do this with the clerk to the Committee, is to test out
some presentations of those figures so by the time we come to
do our Departmental Report next year we are doing it in a way
which takes account of the Committee's view on what is a good
presentation and what is not.
138. It would just help because then we could
see what you were meant to spend, the targets you were meant to
meet, what you met and what you actually spent and then one can
take a view about the performance of the Department. One other
question, and I am sorry to go back to the favourite of targets
but I was rather captivated by the one on page 80, target number
nine. The target was an increase in the proportion of undisputed
invoices paid within 30 days, presumably this is to small businesses
and the like, and this target was not met and is now dropped,
I just wondered why that was.
(Ms Rowe) We continue to target that particular activity
to make sure we actually meet our obligations. Just in terms of
the suite of targets on which we report to the Treasury it is
not in there.
139. But it is important that big departments
with billion pound budgets pay small businesses, stationery companies,
the people who produce the annual report on time. Should that
not be a target then?
(Ms Rowe) We monitor it and we have an internal target.
4 See Ev 50-1. Back
5
See Ev 51. Back
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