TUESDAY 16 OCTOBER 2001
__________
Members present:
Mr Chris Mullin, in the Chair
Mr David Cameron
Mrs Janet Dean
Bridget Prentice
Mr Gwyn Prosser
Bob Russell
Angela Watkinson
Mr Tom Watson
David Winnick
__________
Examination of Witnesses
THE RT HON THE LORD IRVINE OF LAIRG QC, a Member of the House of Lords, the
Lord Chancellor, and SIR HAYDEN PHILLIPS KCB, Permanent Secretary, the Lord
Chancellor's Department, examined.
Chairman
1. Good morning, Lord Chancellor, and welcome.
(Lord Irvine of Lairg) Good morning.
2. As you can see we have one or two new faces since you last came here, and one or two
old ones. In my case the wheel has come full circle and am back where I was two years ago.
(Lord Irvine of Lairg) I should welcome you back to the Chair.
3. Thank you very much. Would you like to introduce Sir Hayden Phillips?
(Lord Irvine of Lairg) He needs no introduction: Sir Hayden Phillips, my Permanent
Secretary.
Chairman: We are going to start with a few general questions if we may. You have probably
had some indication of the areas we are interested in, which are quite wide in keeping with your
vast brief. I am going to ask Bob Russell to start the ball rolling.
Bob Russell
4. Good morning, Lord Chancellor. What are your priorities for this Parliament? If we look
ahead two or three years, midway through the Parliament, what sort of challenges do you
foresee? Is there anything you were disappointed not to have achieved in the last Parliament?
(Lord Irvine of Lairg) That is a very difficult question. First of all let me tell you what my
major priorities are and, not surprisingly, they relate to the two principal Committee reports that
have landed on my desk. Those are the Auld Report and the Leggatt Report. You might expect
me to start with the Auld Report (but I am not going to) because obviously it is a huge priority.
The Leggatt Report is also a big priority and I would like to tell you why. That was a report that
was delivered to me on 29 March and was published on 18 August and the consultation on it ends
at the end of November. The reason I start with it, in answer to your question, is that, depending
on its fate, of course, across Government it may come to be regarded as a historic document. I
see it that way. Tribunal justice is huge business and its extent is not generally appreciated. It
has not been considered in the round since 1957. Tribunals have proliferated. Now there are
about a hundred of them. Every year they decide more cases than the ordinary civil courts, many
more, about a million cases. Basically Leggatt has done for tribunal justice what Woolf did for
civil justice and what Auld is now trying to do for criminal justice. The basic point I would like
to make is that what Leggatt does not do is disturb policy responsibilities within departments for
areas in which each department is responsible, for example, the Department of Education,
Employment, DTI and so on. What he is in favour of is a unified tribunal system just as Auld
is in favour of a unified criminal court. He is recommending a streamlined system of
administration for all tribunals. That is a very important priority for me according to what is
agreed within government legislation for that. The second is Auld. It is a massive report. It was
published on 8 October in good time for you all to have read the 700 pages and the 328
recommendations. I am pleased that it was published in time for this meeting. It is a massive,
radical piece of work. The period for public comment ends at the end of January and if it comes
into effect it will represent unquestionably the largest reform of criminal justice for over 30
years. Auld himself has conducted a massive consultation exercise with about a thousand written
submissions. There has also been the Halliday Report on sentencing and the Government's own
document, Criminal Justice: The Way Ahead. The priority for Government and for my
department along with others will be to bring forward legislation in this area, again once the key
decisions are made and, just as in the Leggatt area they have not been made, so obviously in the
Auld area they have not been made. As shortly as I can these are my two major priorities. I must
ask my Permanent Secretary what our biggest failure is.
(Sir Hayden Phillips) That is a contradiction in terms, Lord Chancellor. I think we would
like to have seen the Commonhold and Leasehold Bill going through last time and it did not, but
we did not have a big legislative programme.
(Lord Irvine of Lairg) That is true. Commonhold and Leasehold lapsed with the election but
it is up and running. It is first out of the traps. We have got Land Registration as well, which
is very important for e-conveyancing. Of course I could wish to have had these last time, but we
have got them first out of the traps this time, so I do not really have much to complain about.
5. So you feel the Auld and Leggatt Reports will occupy the first two or three years?
(Lord Irvine of Lairg) It depends upon the speed with which Government makes decisions
and it also depends upon the speed with which legislation can be prepared. Auld is obviously
an absolutely massive undertaking. Whether or not you could have legislation this session in
certain important areas or not, whether or not you should wait for a big bang in the second
session, these are very difficult questions. Big stuff it unquestionably is and sooner rather than
later.
6. After the election some responsibilities were transferred to you, mainly, as I understand
it, from the Home Office. In what ways will the transfer of those functions improve the way your
department works? Secondly, is your department now in charge of constitutional matters?
(Lord Irvine of Lairg) Oh yes. The department is undoubtedly now in charge of
constitutional matters. That was an important part of the machinery of government changes
instituted by the Prime Minister almost immediately after the general election. In practical terms
what it has meant is that about 50 main line civil servants have come over from the Home Office
to the Lord Chancellor's Department. They are transfers which are in the areas of human rights,
freedom of information, data protection, responsibility for House of Lords reform, other areas
such as responsibility for the dependant territories. Certainly we justify the description that the
Lord Chancellor's Department has become more a rights department and a department which is
primarily (not exclusively, obviously) concerned with these constitutional issues which have
transferred.
7. Continuing with the constitutional matters, I am pleased about the dependant territories
and I might put in a special plea on this occasion for the island of St Helena. Would it not make
sense for electoral law and the coroner system to have come to you as well?
(Lord Irvine of Lairg) I suppose you might say there would be no end to the appetite for more
business. Electoral law has remained with the Home Office. There is a great deal of work on
hand there. It is one of these borderline areas but there is no plan to transfer electoral law to us.
In a sense human rights, freedom of information, data protection and reform of the House of
Lords and any other reforms of Parliament fall into a neater box.
8. And the coroner system?
(Lord Irvine of Lairg) The coroner system could. I would see no objection in principle to the
coroner system coming over although it may be that my Permanent Secretary would because we
have got quite enough work already. There would be no objection in principle to it. I do not
think there is any objection in principle to it remaining where it is but yes, it could come over.
9. I understand you have also got city status applicants coming to you.
(Lord Irvine of Lairg) That is true too, and you should also mention responsibility for the
Cenotaph ceremony.
David Winnick: Quite a little empire building up there.
Mr Russell
10. On the city status one I will leave you with the thought, Lord Chancellor, that now
applications have closed perhaps you could be generous and allow all applicants that meet your
requirements to be granted city status so that you make as many citizens as possible happy with
your decision. I leave that with you.
(Lord Irvine of Lairg) It might devalue the status a little.
11. I very much doubt it because clearly every applicant believes they are justified - and that
is a serious point I make.
(Lord Irvine of Lairg) I know that. The trouble is, everybody who makes an application to
the court thinks he is entitled to it as well.
12. Finally, Chairman, given the Government's intention to a fundamental shake-up of the
criminal justice system, is there not now a strong case for creating a Ministry of Justice which
is responsible for law reform and the criminal courts?
(Lord Irvine of Lairg) That of course is a very fundamental question that you saved till the
end. Actually, I think the opposite. I can understand why you put what you say but I basically
conclude the opposite. I think that the recent machinery of government changes in fact point
against an overarching single Ministry of Justice in this country. You see, what the various
functions in a justice system reflect is discrete and (I would say) properly independent parts of
the fabric of the state. Crimes are investigated by the police. Decisions to prosecute are made
by an independent body called the Crown Prosecution Service. Responsibility for the content
of the criminal law is with the Home Office because there lies responsibility politically for
bringing legislation to Parliament about loss of liberty, and there also lies responsibility for
prisons which house the people who have lost their liberty under the law, but then decisions in
particular cases in relation to citizens are taken by the judiciary and the courts. Unsurprisingly,
I think, to responsibility for the judiciary, the courts and judicial independence (the independence
of courts) has been added responsibility in the constitutional sphere and in particular for human
rights. I do recognise that other countries, in accordance with different cultures, do things
differently, but I actually do believe that our basic values of freedom under the rule of law are
best protected by keeping these functions discrete and with separate lines of ministerial
responsibility.
Chairman
13. Just one small point, Chancellor, before we move on. You mentioned that electoral law
has remained with the Home Office. I believe that to have been transferred to the DTLR.
(Lord Irvine of Lairg) Yes, that is right.
Mr Watson
14. Lord Chancellor, the Human Rights Act has been in force a year now, or just over. Are
you satisfied that it is operating as expected?
(Lord Irvine of Lairg) Oh yes, I am. I think that the Human Rights Act has bedded down
very well. There was a great deal of training in advance for the judges. The important decision
in principle was taken that Human Rights Act points could be taken in all courts. You could
have said, "We do not trust the magistrates to deal with human rights points" and that these
decisions must only be taken in the higher courts. We trust all the courts because, after all, if
human rights are part of the law of the land you should be entitled to raise a human rights point
in any court. We therefore had to train all our judges in advance, including our 30,500 lay
magistrates. Some people criticised our delay of about two years in passing the Act until we got
to implementation. I think the time was well spent. I have completely ignored Whitehall,
however, in that answer. Whitehall also prepared and trained because I do believe that a culture
of respect for human rights, which was always intended, has permeated Whitehall. You will all
have read in the papers the stuff about how the courts were going to come grinding to a halt and
there was going to be chaos in the courts and these were mad and absurd laws of an alien nature
that we were importing into this country and so on. None of that of course has been proved
correct. The prophets of doom, as very often, have been found to be wrong. My own belief is
that yes, it has bedded down in a very satisfactory way and the courts have made decisions which
are pretty balanced on the whole.
15. You have set aside œ21 million for additional court time as a result of the Act and an
additional œ39 million against the possibility of an increased legal aid bill. Has that been used?
Has that been necessary?
(Lord Irvine of Lairg) My goodness, that is a very detailed question. It is right. I have got
to try and remember. I think we have got œ21 million for court sittings and we have got œ39
million for legal aid, which was specially earmarked for Human Rights Act purposes. Certainly
we needed the money. These sound big figures but they are actually very modest figures if you
look at the whole of the legal aid budget which, let us say, lies somewhere between œ1.6 billion
and œ1.7 billion, so when we talk about œ39 million for legal aid it has got to be seen in that
context. Basically the position about the Human Rights Act is that it has raised very few free-
standing cases. By that I mean that you would be hard put to list a case which was based on a
Human Rights Act point only. The cases in which Human Rights Act points arise are cases
which would have arisen in any event, so the Human Rights Act point is bolstering. It may be
an independent point but none the less it does not cause a case to be brought in the first place.
The direct answer to your question is, you prove to me that you have spent the œ39 million, no
more, no less, on the legal aid dimensions of the Human Rights Act, or you prove to me that œ21
million worth of additional court time is attributable to human rights. Look; I could not do that,
obviously, but I can tell you that last year we sat about 93,000 days in the crown court, sitting
days. That was an increase on about 89,500 the previous year and we are planning to sit 100,000
days in 2001/2001, and we are on target to do so. I cannot prove to you that that is attributable
to human rights but I do think in fact that we asked for money and really put our money where
our mouths were because when I was saying, "Do not believe all this stuff about chaos in the
courts", if I actually believed all this stuff about chaos in the courts I would have been asking for
more money.
16. Has your experience of the last year altered your view as to whether we should have a
Human Rights Commission?
(Lord Irvine of Lairg) No. I retain a very open mind about the Human Rights Commission.
I occasionally say things that make people think that maybe I am a cynic about commissions, and
I can assure you I am not because we have got commissions. We have got commissions in the
area of sex discrimination, in the area of race relations, in the area of disability and so on, and
so we have got a good tradition of commissions. What we have got in the Human Rights Act is
the Act itself, a period of bedding down. We have got a joint committee of both Houses on the
Human Rights Act which I have given evidence to only once but is working well. I certainly do
not preclude a Human Rights Commission. I have got a more ambitious idea which always
seems to go down with the various interest groups like a bit of a lead balloon but I do not mind
ventilating it. I think there is a case honestly for an overarching Human Rights Commission, one
that would subsume within it the existing commissions, but "subsume" is the wrong word. That
word puts people off. It would have a divisional structure because you can have too many
commissions with too many administrations and no collocation of premises, too much of a good
thing. I think that people would embrace the idea of an overarching, overriding Human Rights
Commission which embraced all the existing commissions and the human rights dimension as
well. That might find receptive ears.
17. But who do you envisage would sit on a commission and who do you think would
choose who sits on that commission?
(Lord Irvine of Lairg) I would have thought that there would just be the widest consultation
as to who should sit on the commission. The Commission would obviously have members
drawn from all interest groups in the same way as the existing commissions do. Who the chief
executive was to be and the other principal executive officers would obviously be hugely
important and there would be an open competition for that, and there would be an open
competition for who the commissioners would be. In principle there are no problems of staffing
or finding commissioners. The question is whether it is a good idea.
Mr Cameron
18. On the Human Rights Act, as you say, it has been in place for a year. What in your
opinion are the chances that there will have to be some serious amendments to it because of the
planned legislation on terrorism and extradition and asylum?
(Lord Irvine of Lairg) I do not see myself that what David Blunkett announced yesterday
calls for any amendment to the Human Rights Act. The Human Rights Act of course, like any
statute, can be amended, not to the extent that, using shorthand, it incorporates the European
Convention, but the European Convention allows for derogation when strictly necessary at a time
of public emergency from Article 5, which is a very important article. That is what the Home
Secretary indicated yesterday he was proposing to do, and I have to say that extreme
circumstances do call for extreme measures, but I do not believe that this emergency, this way
of proposing to deal with terrorists from abroad who are potentially grave risks to the United
Kingdom and having to derogate from Article 5 to achieve their detention in any way prejudices
the overall beneficial effects of the Human Rights Act and does not call for any amendment of
the Human Rights Act.
David Winnick
19. Critics of the Human Rights Act, however, Lord Chancellor, argue that as a result of
such legislation it is much more difficult to deal with those who are said to be involved in
terrorism, that they can delay their departure from the United Kingdom not for months but for
years on end. What would be your response to that?
(Lord Irvine of Lairg) We obviously have to speed up asylum processes and we have to speed
up immigration processes. I know that there is criticism in some quarters of the interpretation
that our courts have given to particular articles of the Convention, and indeed of the Geneva
Convention. We do not send people back because of Article 3 to countries where the individual,
if sent back, would be at risk of torture or inhuman treatment. Some of the criticisms that have
arisen arise out of a difference of opinion where actually our courts are in the majority across the
European Union and our courts also agree with the United States of America and Canada, but
that is by the bye. There is unquestionably an issue where you have got, not state persecution,
but persecution which a state is unable within its own borders to prevent. In such cases the
persecution does not count in France or Germany and therefore people would be sent back
despite that fact, because the persecution is not at the hands of the state but is at the hands of
those whom the state is unable or unwilling to control. Our courts take a different view in
common with practically all the other supreme courts of the European Union, other than the two
big countries of France and Germany. Also, as I say, we are in line with the United States and
Canada. That is the kind of thing. The reason I went into a little detail on it is that much is made
sometimes in the media of that kind of point. Also, we do know that we are a country which is
a magnet for asylum seekers and we have to ask, I suppose, what are the reasons why we are.
One of the reasons why we are is because of one of our principal national assets: the English
language.
Mrs Dean
20. What lessons have emerged from the awareness training in Whitehall on freedom of
information?
(Lord Irvine of Lairg) There is awareness training; there is operational training. I do not
think that any lessons as such have arisen other than the need for the training itself. The
departments have to be ready for the implementation of the Act and the most important issue is
of course when the Act is going to be implemented, but the preparation is obviously necessary.
It is ongoing. Every department has got a freedom of information champion and so on. In a
sense I see this awareness training as a successful parallel to, if you like, the two years' delay we
took in implementing the Human Rights Act which was much criticised at the time: "We have
waited long enough for a Human Rights Act. Why do we not just implement it?" Similarly, I
see the awareness training as a real process which should mean that the Act will be successfully
implemented. The big issue of course is, when is it going to be implemented?
21. Which leads me on to the next question. What do you expect to report to Parliament by
the end of this month on the progress towards implementation?
(Lord Irvine of Lairg) I led with my chin there of course. How do I put it? Because we have
not yet finally decided and because the report is not yet ready and decisions have not yet been
made, I cannot tell you what I am going to say in the report to Parliament. I think there are two
basic approaches, and let me share this with you and say that there is much to be said for both
approaches and tell you quite honestly that we have not actually decided between the two. It is
basically the difference between what you could call a big bang approach and a stage by stage
approach. The Act has to be fully in force by 30 November 2005. It is important to mention that
because that is the period of time that we are talking about. We could implement the Act in
stages by a type of public authority, perhaps - probably - starting with central government. Then
of course what you would have to do is decide on some kind of time programme. Because, as
you know, these publication schemes are hugely important, the publication scheme of each
department has to publish with the assistance of the Information Commissioner, it seems to me
that on a stage by stage approach it would be sensible to have the publication scheme published
on a date and then for the individual's right of access under the Act to come into force a period
of time after the publication of the publication scheme in the particular area. What might that
period of time be? For argument's sake, six months or nine months. Do not start adding up my
notional figures because I might get beyond November 2005 which would not do. You could
have a publication scheme date for central government first and then you could have local
government, for argument's sake, nine months or a year later. Then you could have a bit later,
let us say, the police authorities, the armed forces. Then you could have the health service. Then
later you could have the schools and the universities, and then you could have, if you like, all the
rest. You could have a staggered process of publication schemes which would obviously have
broadly to correlate to readiness within each area, and then you would have to take a realistic stab
at the interval of time that should elapse before the individual's right of access can be engaged,
always remembering that you are working to a deadline of November 2005. The other way of
looking at it would be to rule out the publication schemes perhaps across a similar model, but
then have a big bang so that the individual right of access does not come until a single date
before November 2005, obviously. I will be quite frank: there is discussion going on around
these two alternatives. Both can be argued but what I can say is that one or the other, a variant,
is going to happen and that we will of course comply with the statutory outer limit of November
2005. Again I have been hinting about delay and I do not apologise for this delay because I said
in answer to your colleague that a large part of the success fo the Human Rights Act has been
attributable to taking the necessary time.
Chairman
22. Is that not the case for not going for a big bang?
(Lord Irvine of Lairg) Yes. There is a powerful case for not going for a big bang, for doing
it gradually, and modulating how you go according to readiness in particular areas. On the other
hand, there are in fact arguments the other way as well but that is the broad outline. What you
should also know is that this is a hugely ambitious Freedom of Information Act. It applies
retrospectively as well as prospectively. We could have made it apply only to future paper. It
applies to all past paper. That is quite staggering in itself. It also applies to about 50,000 bodies,
so it is big stuff.
Bridge Prentice
23. Lord Chancellor, I want to take you back to Auld if I may. You have explained the
importance of it within your departmental remit. You have already given us some information
about the consultation that has taken place. I wonder if I could tease out from you a little bit
more about when you think you will be able to make ministerial decisions in order to introduce
legislation?
(Lord Irvine of Lairg) We have only had the report for a very short period of time. The
period for public comment ends on 30 January 2002. We will respond in the form of a White
Paper, which I hope will be published in the spring of next year. That is a pretty good timetable.
Of course there is going to be huge debate, I envisage, in the interim when the full breadth of all
this sinks in. Again, it really is big stuff. Would it be convenient, Chairman, if I just said in a
few words how big it is?
Chairman
24. Yes, please do.
(Lord Irvine of Lairg) This is not necessarily the Government's decisions. This is what Auld
is saying. This is why this is really a hugely radical document which will also be highly
controversial in particular areas, not least in its impact on jury trial. He says that the crown court
and the magistrates court should be unified into a single criminal court. It is going to be called
the criminal court. It is going to have the same powers, the same practices, and it is going to
have a common administration. All cases should start and finish in the same court; no more of
this nonsense of committing for trial from one court to another doing half of a case in the
magistrates court and then committing it to the crown court. The criminal court, he says, should
be divided into three divisions: the magistrates division, the district division and the criminal
division. I dare say you will be very interested in each of these. Then, importantly, he says there
should be a single, centrally funded, executive agency as part of my department, the Lord
Chancellor's Department, responsible for the administration of all courts, civil, criminal and
family, replacing the court service and the magistrates' court committees but with a huge amount
of delegated local responsibility. That, he says, would, among many other beneficial things,
promote electronic sharing of information between courts. Then he proposes a big new IT
agenda, that there should be a new, single IT system for the unified criminal court. Then, getting
into the area of big controversy, he says that in either way cases, that is to say, the cases where
today the defendant can decide whether to be tried in the magistrates court or to go for jury trial,
allocation is to be decided by the court. It is not going to be decided by the prosecution; it is not
going to be decided by the defence. These are big controversies, as we know, not merely from
the fate of the mode of trial bills of more recent memory, but also because that is what the
Runson and Royal Commission recommended, that is what the Narey Committee recommended
on delay. Because of this district division, where a professional judge could sit with two lay
magistrates, it is actually a huge vote fo confidence in the lay magistracy because these two lay
magistrates in trials in the district division would be a sort of quasi lay jury. Then he has got
very important things to say about hearsay evidence and evidence of previous misconduct and
so on. Basically we should be getting rid of a lot of the highly technical rules which may be food
and drink to the lawyers but are a needless technicality. Maybe we should trust fact finders more
to give relevant evidence the weight it deserves. Then he makes really quite dramatic
recommendations about the conduct of the trial itself and what the judge should do, really
heralding an end to these huge summings up that judges give at the ends of trials. He suggests
that there should be a case and issue summary settled right at the beginning of the trial. It may
have to be modified as the trial progresses and the issues are refined, and a check list for the jury
of what this is really about, and then a really very bold recommendation indeed, on which I look
forward hugely to the results of consultation: the juries at the end of the day should be asked
questions, they should be asked a whole list of questions, on each of which they have to give an
answer and, depending on the answers they give, the result will ineluctably be either guilty or
not guilty, and that carries with it the implication of getting rid of these hugely time-consuming
summings up at the end. This is dramatic stuff.
25. It certainly is. Given that it is such dramatic stuff, how do you think you will implement
those reforms assuming that you will take on board many of the 328 recommendations? How
do you think you will manage to implement those without any system overload? After all, the
criminal justice system has been through fairly major changes in recent years.
(Lord Irvine of Lairg) Lord Justice Auld I suspect would be the first to agree that we have
far too many Criminal Justice Acts, that they keep coming forward like confetti, and that it is
time we just got the whole system right and give it a rest - a rest in theory that is - and let it get
on with its job. He has proposed a very fundamental debate but it would be the reconstruction
of the courts in itself which would require major legislation and we are in the course of assessing
just what the legislative impact would be. I think the shortest answer I can give is that we might
be able to cherry pick some very important things for legislation this session but I do not hold
out any particular hopes of that. I think it is second session material is the honest answer.
Chairman
26. And then some.
(Lord Irvine of Lairg) And then some, yes.
Bridge Prentice
27. Obviously it will take several years before all this could be rolled out.
(Lord Irvine of Lairg) I think it will take several years.
28. Have you made any estimation of the financial cost of all this? What about manpower
implications?
(Lord Irvine of Lairg) No. The answer certainly is not yet. There should of course, in the
streamlining of the trial process, be considerable cost savings. There should also be a very much
better utilisation of court resources because unused magistrates court space or - put it this way -
frequently unused magistrates court space could be space in which the district division could sit.
Obviously there will be big costs as well. We have started thinking about it but any thinking is
in its infancy.
29. Does that mean that there is a straightforward "no" to my question about any budget
between the departments that are involved?
(Lord Irvine of Lairg) Decisions in principle have to be taken first. There are certain quite
important areas where Lord Justice Auld has made important recommendations which are
capable of being regarded as discrete recommendations. I did not really want to bog the
Committee down in excessive detail but you will all have noticed in the press recently the
accounts, all to frequent, of escapes from the dock and even attacks upon judges and so on.
There is a big issue about court security and of course the police, as you know, have very
considerable priorities which inevitably in practice will be given a greater weight than court
security. Basically what Auld says is that the police have got to do it. Alternatively, what we
should have is a court security service, and he cites the British Columbia model, and what that
would mean would be a uniformed court security service employed by the court service but with
all the powers of constables to arrest and to detain, so they would be police officers by another
name. The presence of a uniform is actually very important from a security point of view, and
he has made a pretty firm recommendation that, if not the police, then this is the way forward.
That is the kind of thing that you could take forward as a discrete issue if you thought that there
was a sufficiently pressing need to do so.
Chairman
30. Is the purpose of all this change, do you think, to save money or rather would one of the
outcomes be to save money or to spend more money at the end of the day?
(Lord Irvine of Lairg) Speaking for myself, and having read all of Auld, I do not think he is
really addressing money at all. I think that what he is doing is looking at a more just and
efficient system. Of course every judge is aware of the need to deliver efficiencies and so on.
I would think that any reader of Auld would think that this is an honest and disciplined attempt
to make a system which in many ways is quite chaotic, a much better system. Nobody could say,
reading Auld, that it is in any way driven by considerations of economy.
31. You will have to address money even if he does not.
(Lord Irvine of Lairg) I will, oh yes. We will have to make the most detailed assessments,
of course.
32. So if it is going to be more efficient does that mean it is also going to be a little cheaper?
Any student of the legal system could see scope for the odd saving.
(Lord Irvine of Lairg) Yes. There are of course issues such as building programmes, modern
courts, investing in order to save, a proper IT system. We are talking about real money. That
is classic investment to save. I am not in a position to commit the Government yet to any
specific Auld recommendations, but the streamlining of the trial process, if it takes place along
the lines that he suggests, is bound to effect economies, yes.
David Winnick
33. The critics, Lord Chancellor, paint a different picture. They say that the
recommendations regarding juries would undermine the jury system except in the most serious
cases. Is that not an accusation that should be taken very seriously by all those who believe the
jury system has served this country well over many centuries?
(Lord Irvine of Lairg) First of all the jury system does occupy a hallowed position and
nobody is suggesting that the jury system should cease to be the system that applies to really
serious crimes. Our present system of either way offences only arises out of a report of a
committee in 1975 by Lord Justice James and a statute of 1980. There is no magic in freezing
what was the position at a particular moment in time. The fact is that a colossal number of trials
take place in the crown court. I think the figure is that in about 55 per cent of the trials in the
crown court sentences are imposed which were well within the magistrates' competence. I get
letters all the time from disgruntled litigants but nobody says that the magistrates provide an
inferior form of justice. The truth is that you will get a fair trial in this country by a number of
different means and the issue as I see it is whether there is a broad range of cases where you do
not need the full panoply of trial by judge and jury in order to do justice. I know this is the
argument over the mode of trial bill again. You have probably heard it ad infinitum, but if Auld's
recommendations are going to be taken up again, then you are going to hear it again.
34. What about the slippery slope argument? You start with what is being recommended.
It is implemented and then there is pressure that more serious cases should not be subject to a
jury.
(Lord Irvine of Lairg) People can always use the wedge argument and say, 2where will it ever
end?", but we are a pragmatic country. There is general acceptance I think in this country, and
it has huge judicial support too, that in really serious cases there should be a judge and a jury.
What we have to ask ourselves is whether it is really necessary in order to do justice in this broad
range of either way cases. What Auld is recommending, and we will all have to consider, is that
yes, there is a medium category of case. Why can justice not be done by a qualified judge, a
district judge, who has two lay magistrates, who are experienced lay magistrates, the same people
who try daily summary cases in the magistrates courts, where on matters of fact they will have
an equal vote with the judge and they will be able to out-vote him on factual questions of guilt
or innocence? Why is that not a perfectly fair trial? That is what Auld says and we will all be
expressing our views about it in the weeks of consultation that lie ahead.
35. Your responses seem to give a very strong indication that you are in favour of the
recommendations. Would that be a wrong interpretation?
(Lord Irvine of Lairg) I think you really misunderstand an old hand as an advocate who is just
putting the Auld case to you.
36. Do I take it that you can put the case against as well?
(Lord Irvine of Lairg) Oh, I could do that too.
37. Because I would like to hear the case against, Lord Chancellor.
(Lord Irvine of Lairg) I could of course do it. There are some very extreme views, as you
know, regarding juries. Auld certainly does not espouse them. Auld attacks them but from his
standpoint of course he would. There are some people who go so far as to regard juries as an
aspect of popular democracy and set up juries almost on a level with Parliament itself. There are
some people who seriously say that juries are entitled by their verdicts to say no to laws that they
do not like or to say no to prosecutions that they do not like, even although, if they were to
deliver a true verdict according to the evidence, they would be convicting. We all know from
history that juries have done that in centuries past to avoid convictions of capital offences where
you could get your head chopped off for stealing something worth 20 shillings. The jury is
written into a huge traditional popular affection in this country and the extremist form of putting
it is that it is virtually a sort of check on the executive and a means of saying no on the part of
the 12 good men or women and true to what the state is trying to get them to do. That is the
extremist argument on the other side.
38. All lawyers can put both cases eloquently. Otherwise they would not be lawyers.
(Lord Irvine of Lairg) I just do not get paid for it any more.
39. Well paid, some may say. Tell me, Lord Chancellor: the recommendation is the way
juries are going to be asked questions.
(Lord Irvine of Lairg) That is one idea.
40. Is this going to be in the form of a jury or individual -----
(Lord Irvine of Lairg) It is a good question. He does not answer that. As I say, although it
is a very long document, it is a consultative document, -----
41. I am sorry to interrupt. This is a totally new departure, is it not?
(Lord Irvine of Lairg) It is a wholly new concept.
42. For juries to be virtually cross-examined?
(Lord Irvine of Lairg) Oh no, not cross-examined. No, no, not cross-examined. They would
have their issues summary and there would be agreed between prosecuting and defence counsel,
with the approval of the judge, the list of the questions which it is necessary for the jury to
answer in order to do justice to the case. That is of course exactly what juries ought to be doing
anyway if they are trying the case properly. I have every reason to assume, and the confidence
expressed by so many judges in jury verdicts supports the view, that that is precisely what they
are doing. That is what the summing up tries to do in any event. It is to tell them what the
questions are that they will have to address. This is simply to formalise it in a way which will
make their lives easier.
43. There is also a recommendation about allowing an appeal against what is described as
a perverse jury verdict. Have you given consideration to that?
(Lord Irvine of Lairg) Obviously I have read the whole report. It links in very closely to the
point that we were discussing a moment or two ago. Auld has nailed his colours to a very simple
proposition which may not appeal to you, I entirely appreciate. He has nailed his colours to the
simple proposition that juries are sworn to give a true verdict according to the evidence, and if
they do not give a true verdict according to the evidence and it is quite obvious that they have
not done so and they have just been completely perverse, then the Court of Appeal should be able
to correct them. That is what Auld says. What others would say is it is always dangerous for
me to mention the name of a case but it might be said about the Clive Ponting case, it might be
said about acquittals of MS sufferers who take cannabis or whatever to ease their suffering, that
if juries acquit, they ought to get a clap on the back and you should not be saying that these are
perverse decisions. I understand the argument very strongly, but I am not going to commit
myself to any government position in relation to whether we embrace his recommendation that
a specific ground of appeal should be the perversity of the jury verdict because I can see how
very controversial that would be. In a clear case where a jury was just saying no to a law that it
did not like but Parliament had passed, that might be a clear case of perversity, but how you
define perversity in the much broader range of cases I see very great difficulty with.
44. People are bound to see that as undermining the jury system, but I have listened very
carefully to what you have said, Lord Chancellor. It is also recommended - and perhaps this is
less controversial - that in court cases there should be a way for the prosecution to give details
of previous convictions at the beginning of the proceedings. There has been a lot of argument
where people have been acquitted in certain controversial cases where, had it been known of their
previous convictions, and usually it is plural and not necessarily so, the jury may have reached
a different verdict. Are you sympathetic to the idea or is that a leading question?
(Lord Irvine of Lairg) It is a leading question but you are well entitled to ask me leading
questions. I sat myself as a recorder for many years in the crown court. I have witnessed exactly
what you have described. Usually it is when the jury convicts (sic). In fact, it could not really
be otherwise. The jury convicts and it has taken a long time. This good honest jury has been
away for a couple of hours, anxiously making up its mind, and comes back and convicts, and
then hears that the defendant has got a list of previous convictions as long as your arm and you
see them exchanging glances in the juror box, "Well, there you are: I told you so". On the one
hand that makes the point that if the juries knew in advance they would be very influenced and
maybe others would say prejudiced. At the other side of the argument you can say that it is a
very poor prosecution case that has to rely on previous convictions to prove itself and that the
risk of prejudice to a defendant is too great to allow previous convictions to go in. There are also
in this area some very plain facts of life to be discussed. Very often defendants have previous
convictions. Very often the prosecution witnesses who give evidence against them have previous
convictions. Then both would go in and that in itself gives food for thought.
Angela Watkinson
45. Lord Chancellor, what is your view of that other jury, the Crown Prosecution Service,
which decides whether cases are allowed to go forward to court, and very often, in not allowing
them, wastes very lengthy police investigations?
(Lord Irvine of Lairg) First of all I think I would be quite clear. I know this is a huge cause
of irritation to the police. The police are bound to be hugely irritated if they devote a large
amount of time to a particular criminal investigation. They themselves would not have brought
it up to the Crown Prosecution Service unless they were pretty jolly sure that the defendant was
guilty, and then they find that the Crown Prosecution Service disagrees with them and the
prosecution does not take place. I have got to say that I am on the side of the present distribution
of responsibilities here. I do think that it is the duty of the Crown Prosecution Service to assess
a case that the police bring forward and to decide whether it is fit to go for trial. Otherwise the
Crown Prosecution has to decide whether there is a sufficient likelihood of a conviction being
secured to merit all the time and effort and, yes, cost of perhaps a very long criminal trial. Of
course, when criminal trials collapse for want of evidence, there is nobody who is slow to
criticise the Crown Prosecution Service for bringing forward a case that was not strong enough:
why were they doing this? Also, of course, the long history of miscarriage of justice cases in this
country, proven miscarriages of justice cases, is a cautionary example to the Crown Prosecution
Service to exercise its discretion. There are figures on this. As we know in relation to crimes
recorded, only about 24 out of 100 are cleared up, and that is no criticism of anyone. It is
probably by international standards quite a good record. Of these 24 the police take action in 19
and then four out of the 19 are not taken further by the Crown Prosecution Service. I do know
that the four out of the 19 if you like will cause a lot of irritation to the police but I do think that
the reasons are on balance justifiable.
Chairman
46. Do you think we should be putting cases to the courts on the basis solely of evidence
from serial perjurers?
(Lord Irvine of Lairg) You must have a particular case in mind.
47. I have a number in mind actually, yes. The one that comes to my mind, which is a
proven miscarriage of justice so I guess we are allowed to mention, is the Carl Bridgwater case
where in a truly astonishing judgment the Court of Appeal upheld convictions, saying, "We
accept that witness so-and-so is a pathological liar but on this occasion we believe he was a
witness of truth." How is it possible for a rationale human being to engage in that kind of
judgment?
(Lord Irvine of Lairg) I had better over this weekend read that judgment and see how it
impresses itself on me, but I can see the difficulty.
Bob Russell
48. If I can take you back, Lord Chancellor, I believe that in referring to the court security
service you said they would be people wearing uniforms. Have I heard you correctly? You said
they would be police in all but name or words to that effect.
(Lord Irvine of Lairg) I did in fact use an expression like that, but perhaps it was inaccurate.
Basically, any court security service, to be the equivalent of the police, would have to have the
powers to arrest and detain of police constables and would have to be trained to the level to be
worthy of having these powers.
49. The reason I ask that question is that the former Home Secretary is on record as saying
he is opposed to privatising the police force and I would hope that you would also echo that
statement, that this would not be a privatised police force within the courts.
(Lord Irvine of Lairg) Let me say right away, because this arose out of comments that I made
following from Lord Justice Auld, that by far the preferable course would be to have a sufficient
police presence at courts as a matter of routine. There is not an inch of difference between us on
that. But just so as to tell you about the problems about court security very shortly, the
responsibility is fractured. It is the responsibility of the Prison Service to bring the prisoner to
court. The Prison Service retains the responsibility for the dock, so the Prison Service, very often
in the shape of Securicor or whatever, are responsible for the dock. The well of the court is the
responsibility of the court service. The whole rest of the court and the public parts are the
responsibility of the court service, and what there are are fractured arrangements, sometimes that
do not even merit the word "arrangements", up and down the country for some kind of police
cover in courts. The present state of affairs is therefore troubling and improvement is urgently
required and I think everybody recognises that. I am looking into that in my own department but
there are other departments which are engaged and the Home Secretary and I have discussed
together this problem in more or less the terms that I have just discussed it with you and we both
agree that this state of affairs has go to be addressed and has got to be improved. My preference
certainly would be for a disciplined and uniform and uniformed police presence in courts, but if
that cannot be secured, because we have to recognise the burdens that there are on the police
force up and down the country, if they really cannot do it and they really do not want to do it,
then of course we have to look at alternatives because court security is absolutely vital. Escapes
from the dock, attacks upon judges and escapes sometimes of dangerous criminals from the
precincts of the courts - they are usually recovered of course - cannot be tolerated.
Mr Cameron
50. Lord Chancellor, can I take you back briefly to the Crown Prosecution Service? Most
people would agree that the good part of the creation of the Crown Prosecution Service was to
have an independent authority deciding whether to prosecute. The disadvantage in many
people's eyes is that you (or we or whoever it was who did it; I do not know if they were even
Conservatives) have created something of a monopoly in terms of the decisions taken about
prosecution. It did not exactly mean that you attracted the brightest legal brains into the CPS.
Are you not in danger of repeating the same mistake with the Criminal Defence Service, the
planned-for service? I wonder if you could say a few words about how far you see the Criminal
Defence Service going in the direction of salaried public defenders.
(Lord Irvine of Lairg) I will certainly come to that, but let me just respond to what you said
about the Crown Prosecution Service. I think it is very important that the Crown Prosecution
Service be properly funded. We addressed that when we engaged in our last spending round, and
both I and the then Home Secretary agreed that out of the special fund that there was a joint pot,
of œ525 million over three years, which is of course available to the Home Office, the Crown
Prosecution Service and the lord Chancellor's Department, I think the Attorney General would
be the first to agree (or his predecessor) that we made a very generous allocation to the Crown
Prosecution Service, recognising that it was under-funded. Secondly, we have cured a historic
anomaly that Crown Prosecution lawyers were being paid less than defence lawyers, and so there
is now equality of reward broadly speaking between the rewards that counsel get for defending
and the rewards that counsel get for prosecuting. Both of these points are relevant to getting
proper quality into the Crown Prosecution Service. As far as the Criminal Defence Service is
concerned, this is an experiment. It is an experiment only. If public defenders do not bring
benefits to the system then we will not continue with them. The extent to which this has gone
is very, very minor so far. Public defender service offices have open in Liverpool,
Middlesbrough, Swansea and Birmingham, the first three in May, the second in July. Just to give
you the scale of it, Liverpool has 127 clients, Middlesbrough 60, Swansea 167 and Birmingham
23. We are going to be opening one other office shortly. You have six public defender offices
with a tiny number of clients and this compares with over 2,800 private contracted solicitors who
offer criminal defence services. What I am saying is it is very, very small and it is experimental.
51. What sort of benefits are you trying to get out of it? If you are nervous and saying it is
an experiment what are the benefits?
(Lord Irvine of Lairg) I am not nervous in saying it is an experiment, but it is an experiment
worth conducting because we hope it will provide a high quality service. No defendant is going
to be compelled to go to a public defender office, he is going to have a choice. These public
defender offices will either succeed or fail on their own merit, they will be properly assessed in
terms of value-for-money. Everything that I have said in the course of the passage of the Access
to Justice Bill showed a clear awareness and acceptance on my part that this was purely an
experiment.
52. I am not quite clear about what problem it is aiming to get over. The CPS had to be
created because you needed independent prosecution decisions. What you lost was a sort of
market in solicitors, with the police knowing who to choose and who was good. What you have
if you are a defendant is that your solicitor can choose any barrister, so there is a market, as it
were.
(Lord Irvine of Lairg) That is still so.
53. Absolutely. What is the problem that these paid public defender offices are trying to
cure?
(Lord Irvine of Lairg) One is trying to test out a higher standard of provision and one that
gives greater satisfaction to the user that can be delivered other than by private means. Also in
parts of the country, not many, admittedly, where there are problems of supply of criminal
defence services these offices can supplement shortages in supply. Why I think there is nothing
to fear is because the market will determine it.
54. Thank you.
(Lord Irvine of Lairg) There is no compulsion to go to them.
Chairman: Can we turn to access to justice.
Mr Watson
55. Lord Chancellor, there has obviously been a number of court challenges to the Act, what
steps is the Department taking to monitor and research the impact of removing areas of law from
legal aid?
(Lord Irvine of Lairg) I think the best evidence is whether you get complaints. Everything
that I have heard about conditional fee agreements is favourable. I have not had a single - I
shudder to tell you how large my mail bag is - letter from anyone telling me that they have been
dissatisfied with a particular conditional fee agreement or the conditional fee agreement terms
that they were offered. The MPs in this room will know whether they have either. It is pretty
remarkable, I ask my own ministers, and so on, and neither have they. What I am really saying
is the proof of the pudding is in the eating. It is also a favourable regime to plaintiffs, it is a
favourable one. If they do not win they pay nothing, if they win they cover their costs and the
costs of insuring against the risk of loss is recovered from the other side. It is a very, very
favourable regime. It is not surprising, of course, that the insurers industry have been testing in
court the effectiveness of the provisions that the successful plaintiff is entitled to recover, the
success fee and the cost of the precautionary insurance fee. So far the courts have upheld the
statutory system, subject to a wrinkle in a recent case, about where there was an antecedent
insurance policy, antecedent that is to the new insurance policy that was taken out to cover the
risk of the new action. On the whole I think that the CFA regime is working well, I am not aware
that Law Society is in receipt of complaints about it. We have been studious, of course, not to
withdraw legal aid from clinical negligence claims and we do not have any present plans to do
so, although I do believe that conditional fee agreements are, to an extent, being used there in the
medical negligence area also by plaintiffs, which does really testify to the proposition, which I
always thought was true, that conditional fee agreements would prove good business for lawyers.
56. Perhaps I can amplify a complaint from a group of membership organisations, I am
particularly thinking of trade unions, currently the provision discriminates against them because
they can only recover the cost of providing against the risk of paying the costs of the other side
but they cannot reclaim the disbursements because commercial organisations have arrangements
to do that. Have you any plans to change the costs structure to enable that to happen?
(Lord Irvine of Lairg) That is a very detailed question. First of all, I remember when the
Access to Justice Bill was going through we provided for recovery from the defendant of the
amount of the uplift which the solicitor was going to charge, the uplift of his costs and the
insurance premium, so that the plaintiff could recover it from the defendant's employer typically.
It was then drawn to our attention that trade unions ran big personal injuries through their
solicitors and how were they going to benefit from these provisions. We saw the justice of them
benefiting from these provisions and there are particular provisions in the Access to Justice Bill,
for which I remember being praised by the trade unions at the time, which allowed them to
benefit from the recovery. I have never received a letter from any trade union or the TUC on the
point that you have raised with me. I will see if I understand it, if the trade union member wins
the case then he recovers his costs from the other side and if he wins he recovers the
disbursements, the medical expenses, the lawyers fees and he will recover his damages and
everything else, so no problem if he wins in a trade union case. What I think you are saying to
me is if the trade union loses the case on his behalf, the trade union, because it is really the trade
union, not the member, is protected against the defendant's employer costs and recovers them
under the insurance policy but the insurance policy does not extend to protecting against the
disbursements, or if it does the recovery against the defendant does not include the
disbursements. I think that is what you are saying.
57. That is what I am trying to say. Currently that puts trade unions at a disadvantage to
other commercial organisations and clearly that is a huge part of their service to their members.
What I am saying to you is, is there is an anomaly, have you any plans to try and iron it out?
(Lord Irvine of Lairg) If you tell John Monks to write to me about it and set it out in detail
I will certainly look at it. Some people might say that the trade unions actually deserve a huge
clap on the back because they ran what was really a conditional fee arrangement for their
members for years and years and years and years successfully, with the profits they made from
the winners subsidising the losses they made on the losers. The truth is that what I have already
done in the Access to Justice Bill has made their position stronger than it was before when they
were running, if you like, a successful personal injury business on behalf of their members. I will
certainly look at that point. If you write to me I will certainly ask my officials to look at it on
the basis of our exchange. I would be very interested to hear from the legal office of the TUC
what their experience on this sort of point is.
Chairman
58. I think we can help, we have been told by the Amalgamated Engineering and Electrical
Union it has cost them œ850,000 so far.
(Lord Irvine of Lairg) What?
59. It has cost them œ850,000 so far. We have a note from the Director of Legal Services.
(Lord Irvine of Lairg) That is in disbursements incurred by them in cases which they have
lost. Their insurance cover has got to cover the disbursements. I do not want to be drawn into
an unsympathetic remark.
60. There is no need to get drawn into the detail in this session. Let me pass you a copy, this
ought to be the basis on which you can respond.
(Lord Irvine of Lairg) They can obviously insure against it and pay for it, the question is what
they can recover against the defendant.
61. If you can let us have a considered response when you have had a chance to look at the
note, we need not dwell on that.
(Lord Irvine of Lairg) It is a very detailed question.
Chairman: Yes, it is. Next, the effect of conditional fees on medical negligence claims.
Mrs Dean
62. What assessment is being made of the impact of no win/no fee charging on levels of
litigation and their rate of success in medical negligence claims?
(Lord Irvine of Lairg) The honest answer to that is that no assessment as such has been made
or really could be made. There is no mechanism. There is no means. I suppose I could go along
to the Law Society and say, will you require all your members who do medical negligence work
to report, and who do it under conditional fee agreements to report the terms of the conditional
fee agreements and the outcome of these cases or whatever. I do not know that it is really
feasible to expect the Law Society to do it. I do not think the Government could be expected to
gather that information from the private sector. What I do think is quite interesting is this, since
your question supposes that conditional fee agreements are being used in the medical negligence
area, although legal aid still remains available in that area that does suggest strongly to me that
even in the area where it was being said to me at the time of the Access to Justice Bill it was
absolutely outrageous to withdraw legal aid, "if that is what you are thinking about Lord
Chancellor?" I did not withdraw legal aid in that area, still the other side of the argument is
being shown by the fact that there are conditional fee agreements which are alive and well and
causing lawyers who specialise in this field to make profit in what is a very, very difficult and
expensive area of litigation, which is why I did not withdraw legal aid, not least because of the
very heavy disbursements that are incurred in medical negligence cases up front in order to
decide whether you have a case that is worth taking forward in the first place.
63. It probably relates to the Law Society having concerns about the ambulance chasing by
claim management companies. Are you concerned that we appear to be moving towards a
compensation culture?
(Lord Irvine of Lairg) I am not. I always repudiate that when it is said. Let us stick with
medical negligence, one of the most emotive cases that used to be put to me about four and a bit
years ago was the brain damaged child, a terribly difficult case. Think of any really serious
medical negligence case, a paraplegic case, think of a case where somebody becomes a vegetable
or somebody is disabled for life from earnings, well the notion that it is some kind of
compensation culture that is encouraging people who have a case that they can establish that the
medics were negligent does not carry a vast amount of weight for me. I do accept, I entirely
accept that there are worries for the National Health Service budget and I entirely agree that
trifling cases can be brought and it is burden to have to deal with them. I also think that we ought
to promote as much as we can conciliation and mediation in this area, that is why I promoted a
pledge across the whole of Government, which Government has made in relation to its own
contracts, that we will always be willing to go for alternative dispute resolution in place of
litigation, provided the other side is willing to do so. That, if you like, is setting an example. I
agree with you that there is a hostility to settlement in the medical negligence area and I am not
going to apportion blame between the lawyers who act for plaintiffs in these cases and the
lawyers who act for the defendants, the doctors and their medical associations. The other thing
I would say about this is that the law in this area is very heavily weighted actually in favour of
the doctors and it may well be rightly. We do not want to have doctors who are ludicrously
adverse to risk, we do not want doctors who are not willing to take any step in the patient's
interest for fear of a writ and negligence. The law is weighted very, very much in favour of a
reasonable standard of care so that if a doctor follows an approved practice which another
reasonable body of medical men would think is a sensible route to follow in relation to a
particular operation the fact that it goes wrong does not involve negligence on the part of the
doctor.
64. Are there any plans to introduce regulation of claims-management companies?
(Lord Irvine of Lairg) We did have a committee, the Blackwell Committee, which looked at
them, they found no evidence of abuse. In fact I can tell you what the Blackwell inquiry said,
it found little or no objective evidence that claims assessors were causing significant concern or
problems in settling personal injury claims. I remember I was quite sceptical about that at the
time and I went back to them but I was told that they were not recommending any immediate
action and so that is where it rests at the moment. There has been a lot of bad publicity for
Claims Direct, as you obviously know, but as far as I can see that company is back, more or less,
on and even keel. Basically I do think that people are entitled to know about services that are
available to them, provided the advertising is not misleading. That, of course, is why the Law
Society itself allows lawyers to advertise their no win/no fee services publicly and the Law
Society actually lends it name to television advertisements for legal expenses insurance who
underwrite personal injury claims.
65. Can I turn to contingency fees, what would persuade the Government that contingency
fees would be acceptable for court cases in England and Wales?
(Lord Irvine of Lairg) Not acceptable.
66. What would persuade the Government they were acceptable?
(Lord Irvine of Lairg) You would find it very difficult to persuade me. I will tell you why,
a contingency fee is often confused with, but is entirely different from, a conditional fee
agreement. It says under a conditional fee agreement a lawyer must state, "unless I win I will
not charge you a fee". How do you ensure that defendants are not needlessly vexed with claims
if lawyers are going round encouraging people to sue on that basis. The answer is that the market
takes care of that because a lawyer will very quickly go out of business if he goes on a no win/no
fee basis and does not win more than he loses. Indeed, as I said earlier in answer to your
colleague, trade unions are a classic example of lawyers on how to run a profitable business, with
the winners effectively subsidising the losers. What a contingency fee agreement is is an entirely
different thing, a contingency fee agreement, in the American language, is where the lawyer gets
a slice of the action, I take on your case and you and I agree that if I get œ1m for you I get
œ500,000, so I get half of the recovery, it is a proportion of the recovery. Whereas, what a
conditional fee agreement is is an uplift on what the lawyer's fees otherwise would be, it is
regulated by the court, because the court decides whether the uplift is reasonable. At the moment
the insurance companies are, as you would expect, and rightly, not being shy of challenging the
amount of uplift. At the moment there are attempts between representative bodies to agree a
reasonable amount of uplift in categories of case so that the courts are not going to be troubled
with deciding this kind of thing. I feel, first of all, that the conditional fee agreement market is
working so well that there is no need to take that further step. Secondly, I do think that the
contingency fee arrangement gives too great an interest on the part of the lawyer in the outcome,
there is too much at stake for the lawyer. A contingency fee regime puts unacceptable temptation
in the lawyer's way, that is what I think.
Chairman
67. That would be a big step along the way to a compensation culture?
(Lord Irvine of Lairg) You could certainly say that, that is a very well taken point, because
a lawyer could take, which I think the question implies, any number of losers and all he needs
is the big one to come home. I get œ5m damages for you and I get œ2.5m and I can fund quite
a lot of losers out of that. As the Chairman rightly says that could be the beginning of a
compensation culture.
Chairman: Thank you. Can we turn to judicial appointments.
Bridget Prentice
68. There appears to be a reduction, Lord Chancellor, in the number of magistrates this year,
I wonder if you have any views on that? Are there more people resigning rather than being
appointed and is that an abnormal figure?
(Lord Irvine of Lairg) We have about 30,500 magistrates, they got a nice ringing
endorsement out of Lord Justice Auld. There was a lot of media speculation about their future,
the result is that I made speech after speech saying how highly we value the lay magistrate. We
did conduct research into relative efficiencies of lay magistrates and stipendiary magistrates, as
they used to be called, District Judges Magistrates Courts as they are now called, and the future
of the lay magistracy is absolutely secure, as I have said many times. As I said in answer to an
earlier question, when we were talking about Auld, this aspect of Auld is not necessarily accepted
yet and it will also be controversial, for the reasons that Mr Winnick gave, but it is a very strong
vote of confidence in the lay magistracy to propose that either way cases should be tried by a
professional judge along with two experienced lay magistrates who on a question of guilt or
innocence on the facts can outvote the professional judge. I take this opportunity of saying that
magistrates are highly valued, much appreciated and they have a permanent and, as I see it, a
stable future in the justice system. I am not aware of any abnormal number of resignations nor
am I aware of any reduction in applications. The impression I have is that people highly value
becoming magistrates and becoming involved in local justice. There were stories that were
blown up out of proportion about a small number of experienced magistrates who objected, for
example, to training under the Human Rights Act, that got a bit of currency. I have to say in
relation to these magistrates I do not have sympathy for them, it is in a way - it is a tiny number,
a tiny number - a privilege to have enhanced jurisdiction under the Human Rights Act. It is a
strong decision of Government to trust lay magistrates to decide Human Rights Act points and
the overwhelming majority of magistrates accepted training and were trained successfully and
accepted it in a good and proper spirit.
69. As an ex magistrate myself I am grateful to you and Lord Justice Auld for the high
esteem in which you hold the magistracy.
(Lord Irvine of Lairg) I hope you were not removed?
70. Unfortunately having to do this job seems to have debarred me. The figures do appear
to be down about five per cent on last year
(Lord Irvine of Lairg) I do not have them, if you give them to me I will certainly look into
it. May I ask, I know I am not allowed to ask you questions, is that application figures?
71. That is figures of actual magistrates, as far as I understand it.
(Lord Irvine of Lairg) I am very, very ---
72. The appointment figure is slightly down.
(Lord Irvine of Lairg) There is often a trade-off between the number of sitting days and the
number of appointments, and so on. I have registered my surprise, so I will look at it.
73. Can you expand a little on the pilot schemes you have been organising for ethnic
minority people and whether you think there may be some encouragement there for new
magistrates to come forward?
(Lord Irvine of Lairg) As you know we have been trying very, very hard to encourage
applicants for magistracy from the ethnic minorities, we have held promotional events, and so
on. I do not want to give the impression, by the way, that the picture is necessarily a bad one,
if the ethnic minority population of this country is, let us say, seven per cent, it is round that, then
in many, many parts of the country seven per cent of the magistrates are from the ethnic
minorities, I do not want to give a bad impression, however there are certain areas of the country
where the proportion of the population that comes from the ethnic minorities is much higher
where that is not reflected in magistracy. We are promoting by every available means
encouragement to ethnic minority applicants to apply, and that includes shadowing magistrates,
and so on.
74. There are some other questions on magistracy I would like to ask you about, if you have
the information, that is the balance between men and women and also the question about how
you get a balance of the local community generally. You used to use a political definition, I
wonder if you still intend to do that?
(Lord Irvine of Lairg) We do still invite magistrates to say how they voted at the last election
and I completely recognise that that is a very crude proxy for social balance and it does also, in
fact, cause offence. Successive Royal Commissions have supported this and all my recent
Conservative predecessors wrote letters to advisory committees conscientiously saying there are
not enough Labour supporters who are magistrates in your area, your committee must go out and
make more strenuous efforts to attract Labour supporters. Letters from my predecessors Lord
Mackay and the late Lord Hailsham were sent to that effect. What I am showing you is that this
is something that transcends parties. This all dates from an era where politics were thought to
be class based and how one voted reflected one's class, and the benches had to be balanced
between the classes. It is completely recognised that that is very, very old hat. I had an inquiry
not so long ago with the objective of trying to find some other measure of social balance with
what has become very, very crude today. That particular inquiry failed. When I asked about it
recently I was told that there was going to be some formula for producing a social mix by means
that are less offensive. As to the balance between men and women, I am not aware that there is
any particular imbalance. One of the problems, of course, and, indeed the reason I altered the age
limits was to attract people who had retired or taken early retirement perhaps when they did not
want to. When I became Lord Chancellor in May 1997 there was a bar effectively at the age of
55, having just squeezed past that age myself I was not willing to accept that I was on the scrap
heap so I raised the age group from 55 to 65 and, in fact, that has proved to be a very, very fertile
source of good quality magistrates. Very often, honestly, men or women are told that they have
reached the end of their working lives and should take their retirement when they do not really
want to. The magistracy has proved to be very popular in that age group.
75. We look forward to seeing what the new definition will be.
(Lord Irvine of Lairg) So do I.
76. Can I move you on to another area, you appointed Sir Colin Campbell earlier this year?
(Lord Irvine of Lairg) Yes.
77. You have appointed ten deputy commissioners.
(Lord Irvine of Lairg) We are in the course of it, yes.
78. Why do you need ten?
(Lord Irvine of Lairg) Why not nine? I do not have the figures to hand unfortunately - maybe
somebody can find them for me. What we have to remember is that this is a country of 55
million people, if you leave aside Scotland, which is an independent legal system although there
are some limited number of appointments I am responsible for in Scotland. If you add up the
number of high court judges, there are about 100 high court judges, there are around 600, maybe
650 circuit judges, I do not know, enormous numbers of recorders, district judges, deputies and
so on, hundreds and hundreds, let's say 500, applications for silk with, say, 70 people
succeeding. The number of people who apply as distinct from the number of people appointed
is very, very large - I apologise for not having the figures to hand but I do not think they would
particularly assist, I have given the impression, rightly, it is a huge undertaking. I know myself
the enormous burden of reading the applications for silk alone, never mind all the other
applications, and of course as in any appointments process people are going to be aggrieved and,
quite frankly, to have a system of this size and scale of appointments monitored by one person
would not be monitoring worth the name. The view we took is that he needs ten part-time
deputies to assist as well. I will be making in due course an annual report to Parliament,
alongside which Sir Colin Campbell's first report will be published, and obviously we will
review the need for ten deputy commissioners, but I do not regard the number in relation to the
scale of the judicial appointments process as in any way untoward. We will have a deputy
commissioner, for example, whose particular remit will be Northern Ireland because of the
special circumstances of Northern Ireland.
(Sir Hayden Phillips) Could I just add, Lord Chancellor, that it is not a question of looking
only at the numbers in post. What he is examining is this vast applications system and it really
is important.
79. Has he made any recommendations so far which have made you modify the procedures
for appointments or any of your decisions?
(Lord Irvine of Lairg) Not yet. Nor am I really, as it were, monitoring him, if you follow me.
He will have his report to make. The thing I want to take this opportunity to say is that every
piece of paper, every application form, every meeting that a disappointed candidate has with my
officials asking for feed-back, "Why did I fail?", everything is documented in full, and every
piece of paper which is in that system is open to Sir Colin Campbell and his deputies to study
whenever they like. Sir Colin Campbell himself can come along, can sit in, in all or any - it is
absolutely impossible of course but you have the picture - he can sit in when applicants for
judicial appointments at any level are being interviewed, he can listen, he can see for himself and
come to a view whether this is a fair system or not. Even when you get to the most senior
appointments of all, at the top of our system, where meetings take place between me and our
heads of division - that is the main divisions of the high court - and we have very, very frank
discussions about X, Y and Z and whether they should or should not become high court judges,
Sir Colin Campbell knows that he is welcome to sit in on those meetings and listen to every word
that is spoken. All I am saying is I really cannot think of a more open system.
80. Has he done that?
(Lord Irvine of Lairg) Yes, he has sat in. There was a recent heads of division meeting which
he attended.
81. When can we expect his report?
(Sir Hayden Phillips) The end of October next year. The same time as the Lord Chancellor's
report.
(Lord Irvine of Lairg) Yes. His first report will be the end of October next year. I, of course,
will be making a report to Parliament at the end of October this year but Sir Colin Campbell's
first year will be up at the end of October next year.
David Winnick
82. When we see the annual report, Lord Chancellor, of your department, will there be any
marked progress in the appointment of women to the most senior judicial positions? When I last
asked you questions, as you know, there was some very limited progress, will there be more?
(Lord Irvine of Lairg) Mrs Justice Arden and Mrs Justice Hale have comparatively recently
been appointed to the Court of Appeal. I have probably appointed more women to the high court
bench than has ever happened before, but until the proportion of women who have been in the
profession for, let us say, about 25 years becomes the same as men, we will not see the very
marked improvement that I would like to see. The fact that can never be emphasised sufficiently
often is that we do not have a career judiciary in this country, right or wrong, and this is
something we could discuss another time obviously. We appoint as our judges highly
experienced lawyers from both professions - solicitors and the bar - who generally have been at
the law for 20 or 25 years before they are appointed, and we are unlike the Continent in that
respect. That is why there is a false comparison between the almost equal numbers of men and
women entering the profession today and the lack of equality in men and women at senior levels
in the judiciary because that imbalance represents the proportions of men and women in the
profession 25 years ago as distinct from today. But I do not want to say to you that I am in the
least complacent about this. I will be judged by my record in the promotion of women to judicial
appointments.
83. Perhaps I can say, Lord Chancellor, that you have done more than other previous
occupants of your office but in itself the progress has been very limited.
(Lord Irvine of Lairg) It has just occurred to me that you might be damning me with faint
praise by saying that, but even faint praise is worth something.
84. If the explanation you have given is the one previously given, that we must wait for those
who have been in the profession some quarter of a century, would I not be right in working on
the assumption that even getting, say, 10, 20 per cent of women holding the most senior judicial
positions is going to take some time?
(Lord Irvine of Lairg) Yes, that is true. I do not know but I would imagine that everybody
round this table approves of a judiciary appointed on merit, provided merit is assessed fairly, and
we have our Judicial Appointments Commissioner with his ten deputies to tell us whether we are
being in any way unfair. If I was a member of the public coming out of court, complaining about
a judge, man or woman, I would not be best pleased if I was told by somebody in the know,
"Well, he is a rotten judge but it was the man's turn that day" or "Yes, she is a rotten judge but
it was the woman's turn that day". Nobody is recommending, I do not think, positive
discrimination in favour of a merit system.
Chairman
85. No, but there have been times in the past, Lord Chancellor, when it has looked like a
rather cosy boys' club at the top, has it not? Although successive Lord Chancellors have assured
this Committee over the years they preside over an almost perfect system, those of us who are
not lawyers have noticed that it is broadly the same type of upper class male, educated at the
same handful of schools and universities who emerges at the top, and we are a bit nervous that
perhaps some of these commissioners will turn out to be in the same mould.
(Lord Irvine of Lairg) You will have to look at who they are and where they come from, but
you have a Lord Chancellor who did not come from the schools you are describing.
86. That is true.
(Sir Hayden Phillips) Perhaps it would help if I could just say, if you look at the appointment
of recorders over the last four years, that is the part-time judicial step, many of whom would be
in a younger age range, it has gone from just 7 per cent being women in 1998 to just over 12 per
cent now. So what you are seeing in that younger generation is the sort of progression that the
Lord Chancellor is talking about.
David Winnick
87. At the most senior judicial appointments it is about 1 to 3 per cent at most, a derisory
proportion.
(Lord Irvine of Lairg) Yes, but the significance in my Permanent Secretary referring to the
recorders is that this is a signal for the future. Recorder is the first rung on the judicial ladder.
If you do not get your foot on that rung, realistically you are not going to become a judge. So
it is quite a significant figure for what it promises.
88. On another aspect, if I may, are your judicial appointments asked if they are freemasons?
(Lord Irvine of Lairg) Yes, all written applicants for judicial appointments have now to state
whether they are freemasons or not. I seem to remember the very first time I had the pleasure
of appearing in front of this Committee, the present Chairman was in the chair, and I was tasked
with freemasonry in the judiciary, and I went out and got information from the judges on a
voluntary basis about the position, and subsequently we earned a certain amount of praise from
your Committee for the voluntary co-operation that there had been. I hesitate to say that judges
are obedient, they are not meant to be, but they were very, very co-operative. If you take the
profession, we got an enormous compliance, and nearly 90 per cent of the professional judiciary
were shown to be non-masons, and of the lay magistracy 80.4 per cent were shown to be non-
masons, and the level of compliance with the request to give the information was huge. I think
it was only a tiny percentage in relation to the whole, like 4 per cent or something, which
declined on conscience grounds to respond. Now in relation to new applicants, which I think
is the force of the question, we do not leave it to voluntariness, they have to say in their
application.
89. It is conditional on appointment, is it? In other words, if they refuse to disclose they
cannot be appointed? Is that the position, Lord Chancellor?
(Lord Irvine of Lairg) I think I had better write to you about this. I think that the application
form requires them to state whether they are masons or not. The question is, if they decline to
state might they still be appointed? I do not want to commit myself to an answer to that without
checking.
90. That is a fair point. If you could write to us, because it is rather relevant.
(Lord Irvine of Lairg) The important element is that the overwhelming majority are going
to state the position, as evidenced by their conduct when they did not have to. Do you follow
me? You have asked me a sharp question, the applications certainly invite them to, and as I
understand the question it is, if they decline to answer that question, may they still be appointed.
I think I know what the answer is but I do not want to commit myself to an answer.
91. I do not want you to either because it is too important.
(Lord Irvine of Lairg) Precisely.
92. The response of the judiciary has indeed been very good, no one can deny that the
overwhelming majority of judges have indeed replied, but when it comes to the magistrates the
figure I have is of the lay magistrates some 2 per cent, or just over, did not disclose but,
moreover, over 12 per cent did not reply at all.
(Lord Irvine of Lairg) Yes.
93. It is a little worrying, is it not?
(Lord Irvine of Lairg) If you could achieve that level of compliance in certain other walks
of life, it would be a colossal achievement. The way I would prefer to put it is that it is not quite
as good as the professional judiciary.
94. Will they get a reminder that it would not do any harm?
(Lord Irvine of Lairg) I am not going to harry existing judges on this. I do think fair's fair
and this is a very, very substantial level of compliance, largely, if I may say so, promoted by a
question and answer session on this subject within this Committee a few years ago.
Chairman: I remember it well. Complaints against solicitors.
Mr Prosser
95. Lord Chancellor, in the course of MPs' surgeries we get an enormous number of
complaints about solicitors, either as a main point of complaint or added to their other concerns.
When you gave evidence to the Committee on the last occasion you gave some faint praise - I
will not say you damned them - to the Office for the Supervision of Solicitors and you expressed
some disappointment that the complaints were still running at one complaint per five lawyers per
year. I wondered whether you have seen any improvement since we last met?
(Lord Irvine of Lairg) The answer is I have seen improvement. The last thing I want to do
is to discourage people who are doing better from continuing to do better, but it is a very narrow
line I have to walk because I do not want to encourage any kind of complacency because nobody
has been more concerned than I have been at the volume and the nature of complaints against
solicitors, and I know every MP would endorse that. Let me reply with facts, and in a way you
can judge for yourselves, if you like. The first thing is that we set very, very exacting targets,
and it is very easy when very exacting targets are not achieved to say that is a failure. Of course
if you had set the targets a bit lower, it would look better, but I was determined to set very
exacting targets. In December 2000 two key quality targets were set for the Office of
Supervision of Solicitors. The first target for January to June this year was that the Ombudsman
had to be satisfied in an average of 70 per cent of cases. They failed that, the average satisfaction
rating has been for that period 55 per cent. Then if you take another target, July to December
2001, here the Legal Services Ombudsman had to be satisfied in an average of 75 per cent of
cases - so you can see the targets are going up. Again they failed, but they were satisfied in 64
per cent of all cases. But the most encouraging statistic, which I hope will be sustained and I will
know soon enough, is that in September the Ombudsman was satisfied in 79 per cent of new
cases, which is actually 4 per cent above the target. I get a pretty clear signal from that, although
I cannot prove it to you. The backlog has not been dealt with nearly as well as it should but
current cases are being dealt with well. I think that is a reasonable interpretation. Over the year,
however, if you look at the whole year, they have been satisfied in 57 per cent of all cases, and
that is 13 per cent below the new target, but I am told that in relation to the post-September 1999
cases, that is cases which arose out of complaints dating from September 1999, it is 75 per cent,
so that is the current quality target. So I think the truth is that things are getting better, much
better, currently but there is a backlog to be addressed.
96. Do you have an intention to up those targets as they are attained?
(Lord Irvine of Lairg) I do not want to preclude upping the targets. I do regard them as pretty
exacting targets because the standards that are applied are also exacting. I may up the targets,
yes, in relation to an issue as important as this, but where 75 per cent is a very creditable
examination mark, it is less so in an area like this.
(Sir Hayden Phillips) There are also targets the Lord Chancellor has set for turning the stuff
round fast enough and also for not allowing caseloads to rise. I think I am right in saying in
relation to turnround times on the whole they are doing rather well. In relation to holding down
the weight of work, they are not doing so well.
(Lord Irvine of Lairg) It is too late but I could list a whole range of targets where they are
doing quite well because there are all sorts of targets, but the two I have selected for you are the
most informative ones.
97. There has been some talk that the Law Society is wanting to take away the issue of
sloppiness and inefficiency from the complaints procedure as opposed to misconduct or
negligence. Have you had any representations from the Law Society on this? Do you have a
view on this?
(Lord Irvine of Lairg) I have heard about it but I believe service and conduct complaints are
very legitimate complaints and the system has to apply itself to that.
98. There is a very thin line really between negligence and sloppiness?
(Lord Irvine of Lairg) Absolutely.
99. So perhaps we can take it you would be firm on that?
(Lord Irvine of Lairg) I am with you on this.
100. You have answered the questions on targets and the future of targets, when you have
discussions with the Law Society what do you say to them in general about the quality of the
service?
(Lord Irvine of Lairg) I am going to probably say to them that they have done better in one
particular area and worse than I certainly intended in relation to backlog, that the jury therefore
very much continues to be out on them, but depending upon the assurances they can give me
about the maintenance and perhaps the improvement of the targets and other targets we have
been discussing, I could be persuaded to hold my hand in relation to the statutory powers I have.
This is something you have to keep at all the time.
101. A lot done but a lot more to do.
(Lord Irvine of Lairg) As some politician once said.
David Winnick: Whoever that may be.
Chairman: Can we briefly, Lord Chancellor, turn to delays and the need to reduce delays.
Angela Watkinson
102. Lord Chancellor, now your Department has had some considerable success in achieving
the target and reducing delays from arrest to sentence for persistent young offenders, will it set
a new target and, if so, what will that be?
(Lord Irvine of Lairg) First of all, the fact is that we have scored a big triumph really in
relation to persistent young offenders. The pledge was to bring the waiting time down from 142
to 71. You can argue about the lifetime of a parliament being five years or whatever, but nobody
is going to deny that to get it down to 69 days by June, two days below the Government's target
of 71 days, is a pretty good achievement but of course what it is is a single important target. The
new targets are currently under discussion, and I am not in a position to reveal new targets to
you.
103. Can I ask you about the crown court claim where, conversely, the number of defendants
committed for trial is decreasing, yet the average waiting time for a trial is increasing?
(Lord Irvine of Lairg) There is an explanation for this. Let me tell you what the basic facts
are. Actual cases which are indictable, that is triable on indictment only, are now sent
immediately to the crown court without an intermediate stage of a committal in a magistrate's
court. Also, however, there are sent to the crown court, either way cases which are committed
to the crown court, so you have two categories. Because indictable cases are now instantly, and
rightly, sent to the crown court, receipts of cases for trial in the crown court are actually
increasing, so there is an increase in the volume of business. It is pretty stark actually. In the
first quarter of this year, 19,465 cases were received in this way, compared with 16,954 in the
first quarter of the previous year. That is the principal reason for the apparent disparity in
performance between the crown courts and the magistrates' courts. It is because under s.51 of
the 1998 Act - these are the Narey reforms - indictable only cases are sent, as I said already, to
the crown court immediately without a full-blown committal proceeding in which the evidence
is presented in the magistrate's court. Under the old system, much of the preparation for trial
would have been completed in these cases in committal proceedings in the magistrate's court
before they ever got to the crown court, so the truth is that the actual immediate volume of
business hitting the crown courts has gone up. I think the crown courts are performing pretty
well and in the magistrates' courts it is really going terribly well. This is probably the contrast
you are looking at. The figures for the magistrates' courts are pretty good and the figures for
crown courts do not look so good. Waiting times have been reduced in the magistrates' courts.
In 1997, which I happen to choose when I became Lord Chancellor, the waiting time was 88
days, in June this year it was 63 days. So the magistrates' courts is a good story. At first blush,
the crown court is not so good but I have given you the explanation.
104. So the crown courts are dependent on the percentage of indictable cases?
(Lord Irvine of Lairg) That is right. If you eliminate committal proceedings in the
magistrates' courts and you send up more cases to the crown courts not pre-digested in the
magistrates' courts, there is more work for the crown courts to do.
Chairman
105. We appear to be operating from different sets of statistics. The figures we have for
magistrates' courts for the average duration of cases, from first listing to completion, was cut
from 35 days to 31 days between 1997 and 1999, and it went back to 32 days in 2000.
(Lord Irvine of Lairg) Is that from charge to listing, or from first hearing?
106. I am sure it is a matter of definition that is the problem.
(Lord Irvine of Lairg) I think it is definitional. We will note this off the transcript and come
back to you.
107. Will you send us a note about that?
(Lord Irvine of Lairg) I am sure it depends how you are defining the time.
108. I am sure it does. A discrepancy that large must mean some factors not being taken into
account. This business of the 1998 Act accounting for most of the increase in waiting time at
crown courts, that cannot wholly be the explanation, can it, because this trend of increasing the
waiting times began before the 1998 Act came into force? Again, I am dealing with the figures
I have in front of me.
(Lord Irvine of Lairg) There may be other reasons for that we would have to look at.
109. I have figures here for 1997 which say there were 110,722 cases then and the average
waiting time was 12 weeks. Then if you go to 2000, the number of cases had fallen to 89,252
but the average waiting time had gone up to 14 weeks. The trend is inexorably in the wrong
direction, for whatever reason.
(Lord Irvine of Lairg) These are statistics.
110. I understand that.
(Lord Irvine of Lairg) Let me give what I think may be the answer. Another factor affecting
the crown courts is the reduction in the plea rate. Apparently it has reduced from 51.4 per cent
in the first quarter of 2000 to 49 per cent in 2001. What this means is that a higher proportion
of cases are actually going to trial and, as the number of trials has also increased by 3 per cent,
it means more cases in absolute terms. So there are two elements in it, not merely one. One is
cases going directly to the crown court without an intervening committal proceeding, two, the
reduction in the plea rate. But may we take a copy of your piece of paper away and write to you
on it?
111. I just want to end up all singing from the same hymn sheet, as it were.
(Lord Irvine of Lairg) I suspect it depends on what is being measured; the definition of the
measurement.
112. I am sure you are right. Thank you for that. Finally, can I ask you about the
organisation called CAFCASS, the Children and Family Court Advisory Support Service.
People keep telling me there is a bit of a crisis there, has word reached you?
(Lord Irvine of Lairg) Yes. There are problems in CAFCASS and there are undoubtedly
serious problems which I can assure you I am very, very familiar with. It depends really upon
how much time I have in order to explain. The real history of it is that the GALROs, the
Guardians ad Litem, were employed by local authorities in different capacities, they were
employed either as self-employed or employed, and at about the same time as CAFCASS was
being formed a number of GALROs, who were self-employed - and the majority of them as far
as I know want to be self-employed - amazingly wanted to become employed in relation to their
particular local authority. They were concerned that their particular self-employment contracts
were flawed legally and they asked the Inland Revenue and the Inland Revenue gave them a
dusty answer. The result really then was that the cat was among the pigeons and there was an
exploration - and this is really truncating very, very severely a very long story - and negotiations
took place between CAFCASS and the GALROs around two possible contracts, the employed
contract and the self-employed contract. I hasten to say that money or cost savings did not come
into it because it was all on the basis of - I cannot remember the exact figure - about three or four
per cent more than the bill had been cumulatively with all the local authorities before. It
emerged, as CAFCASS and, indeed, as I understood it, that the Inland Revenue would not regard
people as self employed unless they were in business on their own account, unless they were
running risks, unless they were putting up their own plant and equipment and everything else,
and if they were integrated into an organisation deeply as if they were employees, then
employees they were in law. Then a stage in the negotiations arose at which CAFCASS took the
view that the only basis on which the GALROs could be offered self employment was if they
were paid under a graduated fee system which would be acceptable to the Inland Revenue. The
view was taken that the GALROs would never accept that. I do not want to comment upon a
case which is outstanding. When I say "outstanding", it has come to a decision thus far. The
view was come to that the knot had to be broken and they were offered employment contracts
only. The judge in the judicial review has held that there was material to suggest that the
GALROs had not absolutely closed the door on a self-employed contract, and there is now going
to be a period of consultation to explore that. The truth is that the CAFCASS, which is a very
important body serving the interests of children in courts, has been stricken in its impasse with
an industrial relations dispute, and it has had problems, but I would not, of course, begin to
conceal from the Committee that thus far I am confident that the services which are required are
being provided and are being provided properly. I can also assure you that the problems are
getting a very high level of my own attention and my senior officials' attention.
113. Are you satisfied with the quality of management at CAFCASS?
(Lord Irvine of Lairg) There are problems with the quality of management, and I do not want
anything that I say to worsen a situation that exists. The Chief Executive - against whom I do
not wish anything that I say to be taken in any way as a criticism either express or implied, none
is intended - has gone off ill for a period of time, probably because of the stress arising out of the
events which I am describing. I am allocating no blame whatsoever, because this is a very, very
fraught situation for which none of us around this table would have liked to have been
responsible.
114. You are on the case anyway?
(Lord Irvine of Lairg) Very much so, yes.
115. That concludes the business, Lord Chancellor. Can I thank you for answering our
questions with great courtesy and good humour for 2« hours. We look forward to our next
meeting.
(Lord Irvine of Lairg) So do I.
Chairman: Thank you.
