Select Committee on Constitutional Affairs Minutes of Evidence


Examination of Witnesses (Questions 20-39)

16 SEPTEMBER 2003

PHILIP ELY OBE, CLARE DODGSON AND ROGER HAMILTON

  Q20  Ross Cranston: You mentioned the telephone and that is absolutely fine and I commend you for that. I thought the telephone thing was secondary, it was not a front line service. In other words, someone in Wales can come to a border control telephone box and ring up an advice line on housing, for example—their solicitors can—to get advice.
  Ms Dodgson: It is trying to get the best match, I believe, and also we are looking at innovative ways of doing outreach. Where you have a base it may be not be a full-time service, but it may be to say we need access to family law help in a particular part of Wales or wherever, can we have outreach sessions, and can we make sure the local community know that on Wednesday afternoon there will be somebody there that they can see face to face, so nothing is a universal answer to this. As the Chairman said, we have to take it very seriously. We have to look to regional directors to look at rural areas and make sure that they know their patch, and that we look at all the different options of trying to make sure they can have access.

  Q21  Ross Cranston: I am not criticising you at all because I realise the budgetary problem. The Chairman started by talking about criminal work, it is also asylum work which is pushing your budget up out of shape.
  Ms Dodgson: Yes.

  Q22  Ross Cranston: It has meant, has it not, that you were intending to put much more emphasis on the not-for-profit sector, but you just have not had that flexibility to build up state CABs and so on because of these budgetary pressures?

  Ms Dodgson: Yes.

  Q23  Ross Cranston: You have not had the chance to do that because of these budgetary problems?
  Ms Dodgson: Yes.

  Mr Ely: I do not think one can rail against that. We can, I think we have just got to get on with what we have. I think you are absolutely right, if the asylum budget had not gone up to £175 million, I guess we would have a more sympathetic ear in the discussions that we properly had with the Treasury and elsewhere. I make absolutely no criticism of that because I think one has to work within that lot, that is the fact. One comes back to the Chairman's point again and I can say truthfully the management process is enabling us to do it, but it is a tough call I think.

  Q24  Ross Cranston: Yes, we had an inquiry about asylum and have our own impressions about it.
  Mr Ely: If I just come back on one point only on that. I guess I am allowed to say this as Chairman, I am a fan of the Community Legal Service and the need for it to develop and without it all of these things would not be happening. I think one of the anxieties that I would have—again as Chairman of London, not for much longer, and the regional chairmen—goes something like this. I think that the engagement of others—conventionally it is called partnership, I do not care what you call it—in what is going on has created expectation and hope. I think one can sustain that for so long saying we must work together, there is a payoff in this, there is a payoff in referrals, there is a payoff in the understanding about who does what, all of that, but the moment of truth comes at a certain point where they will say quite properly: "There is no more in it for us". Government meets that in part with initial budgets and so forth and that is again part of the process and one must never lose sight of that, but it is—I repeat—a close call.

  Ms Dodgson: Also, I think there is something for the Commission itself. We are a non-departmental public body. The point I made to the Chairman earlier on about a balanced portfolio, we have to be able to say: "We are here to provide a spectrum of services to a spectrum of the most vulnerable and disadvantaged people in society", which is a point I keep repeating. People talk to me about our suppliers. When I first came into post I found myself saying: "People do not talk to me enough about clients, communities and providing services". I have not pre-discussed this with the Chairman but I think we have as a Commission, to set out our stall, if you like, about what is the balanced portfolio, and that means if we risk things been skewed by a particular area, we have to flag that up. We have got to have a view about how we handle that, but I do think it is important that we keep the balance.

  Q25  Mrs Cryer: How much responsibility do you feel the Commission bears for the failure to improve standards in the legal profession? Are you doing any work with the Office for the Supervision of Solicitors and the Law Society to raise those standards?
  Ms Dodgson: I think the Commission has a responsibility to raise the standards of our suppliers certainly. We are giving them public funding, so we must do that and we have done that. We have gone through Quality Mark, through franchising of providers; we have put in an audit process, we have refined that audit process and, even looking at it now three months into post, certainly it is a step forward from the initial audit process. It is much more risk-based, it is lighter touch on the Category 1 providers and it is much heavier-handed with the Category 3 providers. Within our supplier base, yes, we do have a responsibility and we are taking that responsibility seriously and acting on it. In relation to the wider profession, of course some of our suppliers do work other than Legal Aid, so there is a boundary question across that. Yes, we do work with the Law Society and the Office for the Supervision of Solicitors, and Roger Hamilton, the director of policy & legal who is here today, has a professional role in doing that. Personally I meet with the Chief Executive of the Law Society certainly and we look at where there is due cause, making sure that if we believe there is an abuse of the system or fraud, we refer those suppliers to the OSS.

  Q26  Mrs Cryer: You mention the Quality Mark, how long do you think it will be before all the publicly funded solicitors will have the Quality Mark?
  Mr Ely: They do.

  Ms Dodgson: They have to.

  Q27  Mrs Cryer: All of them?
  Mr Ely: Yes. Indeed, that is very important. I suppose the starting point, of course, was that—however many years ago it was, I have forgotten now, dare I say, it was 10 years ago—the principle was we would only engage with those who have the Quality Mark. At that stage—one has to be open about it—we will offer incentives to those who do. Likewise, at that stage, we work with people we think will not be excluded. The world has moved on from that and the current position is that only Quality Mark firms are contracted and if they do not measure up ultimately their contracts come to an end. I say ultimately because within the questions we were sent there were issues about this and about the time taken to remove firms. I think it is an almost inevitable consequence if you have what is a fair contracting system these firms are engaged with us under the law as contracted firms, so that will be a process that has to be gone through. Again, I just draw on some experience. I guess I slightly bridled when you said drive up standards, I think that is an issue primarily between you and the Law Society, but we are a part of that. I think, in spite of the horror stories one reads, I can say that in relation to much of the work we engage in—and I am talking about very high cost inevitably because I see that on the Serious Fraud Panel and many of the criminal panels—the quality is high. What one is really saying is the expectation is that we want across the piece and we will work to that, no question, and that engages the Law Society and the OSS as well. I guess it is approaching it from a different perspective.

  Q28  Mrs Cryer: Further to that can I ask you how you are streamlining the process of removing poorly performing solicitors to deal with the high levels of appeals and significant delays which have been experienced, and what sanctions other than removal are there for firms who are not meeting the quality standards required?
  Mr Ely: I would need to reflect for a moment on the other sanctions. I am familiar with them, but they have just gone out of my mind for the moment. In terms of the speeding up of the contract process—again, you will have seen this in the papers—the starting point is the need for an increasing awareness on our part. You cannot suddenly say contracting was the answer and removal of contract, one has to learn. I think the learning, particularly over the last 18 months, is in relation to the need to identify which are the poor performers based on a variety of indices; information to the local office and so forth; feedback, which are the firms that need to be looked at. Inevitably one suspects that will begin—quite apart from the contract audit—to put them in the Category 3 slot. If, within that, one has a specific time mark, you are beginning to get to the point where you can remove them quickly. Now if they are guilty of wrongs, that is the end of it, the contract can be brought to an end straightaway.

  Ms Dodgson: The point I was going to make was if we find evidence of fraudulent abuse, we can act virtually immediately but we have to have the facts to do that. What we are saying is if you are Category 3 twice, the first time we will work with you to try and help you understand what your problems are and improve and the second time, then that is it. We are not giving Legal Aid contracts to practices who are Category 3 twice in a row. We are moving into more qualitative measures of performance as well, so we have got what I am describing as a balanced scorecard, which is quite a familiar concept in other parts of the public and private sectors. Again, the appointment I mentioned earlier on in the Committee with the national director for performance and change, you will be charged with working with the executive board to say: "These are the things that we have currently, how can be build and develop on those to get a more rounded picture of our suppliers?"

  Q29  Mrs Cryer: So you do not necessarily have to go to removal, you are discussing with the various firms where they are falling behind?
  Ms Dodgson: We are looking for a balance about all of this. If people are providing poor quality, poor value, service, we will not be giving them public money and I think we ought to be absolutely clear about that and not defensive and not apologetic. In talking to suppliers, and I talked to a big group of them yesterday, I make no bones about that. We are spending £2 billion of public funding and we need to get good value for it and, if we are not, we need to stop giving it to poor suppliers. The next question, which I think is part of what you are asking, is, are those suppliers still practising, and that is the question where we have to talk to the Law Society but, I agree with the chairman, primarily it is a professional regulatory issue. Are they practising with a Legal Aid contract? Answer, no. Those two things have to come together and I think we have to look at it like that. But, equally, and I was talking about this yesterday again in Birmingham, there is the relationship with management. We want to have a high quality supply base and to have a good relationship with them, but if you were a base of suppliers who had one big customer who gave you a very significant income at a national level which was blue chip, guaranteed government cash, what kind of relationship would you want with the Commission? So we are really going to start over the next few weeks, months and into next year and beyond, saying, "How can we have a better adult-to-adult relationship with our supply base? How can we work to the mutual benefit not of the supplier and the Commission but of the client and their families and communities?" That is the real job, in our view. The other things have to be done and done well and professionally and that is in everybody's interest, but that is the end game as far as I am concerned.

  Q30  Dr Whitehead: I wonder if you have rather mixed feelings about the removal of personal injury work from Legal Aid, or largely from Legal Aid, and the resultant concerns about ambulance chasing and what appears to be, after the passage of time, a very large number of worthless cases? Do you wish it had not been thus or do you think that the down pressure on Legal Aid that that represents is a good trade-off?
  Mr Ely: I think it is a question that you cannot win, can you. Speaking for myself, ultimately this is for Government. I am copping out if I say that but it is for Government and it was a subject of full and careful debate, as they say, and decisions were made and I would not seek to go behind that. That is cowardly but it is not my job. Having said that, if personal injury had remained in the system there is no question there would be need for greater funding, so you would be back with the old issues again or the existing budget would be put under unacceptable pressure, and to that extent one is therefore profoundly relieved. For my part, when PI was withdrawn I said to myself, and I guess I said to others as well, one is going to have to measure down the line whether that is a good thing or not, and that is precisely what is happening at the moment. You put your finger on ambulance chasers, non-lawyers as often as not, and one has that situation which is unacceptable. I think in the greater scheme of things that comes back to, dare I say, it, Committee and Government to say, "Has it gone the right way or not?" My personal view is that on the whole I am sad it has gone, but if it had been there it would have needed greater funding and a recognition of what it was. Do not ask me for the figures, and of course with PI there was a pay-back in terms of cost recovery and all the rest of it, but just as a philosophical point I am sorry it has gone, but there we are.

  Q31  Dr Whitehead: From a practical point of view, you would say significant savings have been achieved?
  Mr Ely: Yes, and they have been measured.

  Q32  Dr Whitehead: On that particular line of thought, are there other areas currently funded by Legal Aid which might be suitable candidates for having this principle applied to them?
  Mr Ely: I think we have been cut to the bone in terms of the categories of work. In a sense I have two answers to that. The first is that I think it is a good thing that the focus, particularly in relation to legal help, is on social welfare and its relationship to exclusion and the intellectual problems of those who really are in need. In my judgment that is sacrosanct. If one moves wider than that, then inevitably one identifies the considerable spend on family work, but if one strips that out—and I have not got the answer to this in detail—and asks what that actually embraces, if it embraces children, the custody of children, the care of children and so forth, that again is essential work. I think the pilots which have been undertaken in relation to families and mediation are going to throw up what is the real need in relation to family work. At some point that is an exercise which has to be engaged in.

  Ms Dodgson: I would come back to this point about a balanced portfolio and, having spent over 20 years working in different parts of public service, there is always a question about eligibility criteria and access, whether it is the NHS, welfare benefits, Legal Aid. Ultimately that is for ministers and Government to have a debate about. My personal view, as I said earlier on, Chairman, is that we need a balanced portfolio and there are a whole host of reasons why that is the case, which we have touched on over the last hour or so.

  Mr Ely: The other thing is that I think it is about right, and that is a personal view as well as a chairman-engaged-in-the-process view. One would like to see PI back but if one looks at the way the Funding Code operates and the way in which public interest is identified as special, and therefore when funding is needed it is there, one is looking at public interest criteria, and if one is looking at clinical negligence and so forth, looking at all those things in terms of where we stand in society, I think we are about right.

  Ms Dodgson: Clinical litigation is an interesting example because the Chief Medical Officer's report suggests some changes in the way we deal with those cases and we need to work through where those changes are to be implemented, what will the implications be for Legal Aid, and what cases would we or would we not deal with compared to the system as it is now.

  Q33  Dr Whitehead: Do you think the knowledge in the general public realm about the point at which eligibility for Legal Aid moves into conditional fee regimes, is something that the Legal Services Commission could look at to a greater extent, or are you happy the general public is aware of it? I am thinking particularly of the role of the Just Ask! website for instance in making that clear.
  Ms Dodgson: I think we could do more. We have identified again a priority in communications with the media and the public about the services we provide, the links with other bits of the public sector and how you get access to them, what links you use. We have new people with communications expertise who are also here today who are helping us to do that. But, yes, I believe we could and should look at what more we could and should do. I think it is quite confusing for people. If you are trying to navigate your way around the network of public services, you have the NHS, you have Job Centre Plus, you have Legal Aid—I will not list to make the point—but how can we be more co-ordinated and integrated in that and have better links between different access points. That is a real question we need to ask.

  Q34  Dr Whitehead: This is a rather poor link to the question I wanted to ask, but I notice that you indeed acknowledge the usage statistics, or you stated in a memorandum to the Committee you monitor the use of statistics, but you do not actually say what those statistics are. Are you satisfied that the usage of Just Ask!, first of all, is widespread and it is being of genuine use and, secondly, do you monitor who uses the site? Is it, for example, a public access site or is it a lawyers' fallback site?
  Ms Dodgson: Do we monitor the usage? Yes, we do. Do I have the absolute statistics in front of me? As you gather, I do not have. We can certainly send a note around to the Committee members with the numbers. The reason that we relaunched it was because we felt that whilst it had made a good start we needed to do more with it and we needed to promote it more, but without giving a more detailed note I cannot add anything else at the moment.[1] Chairman, have you anything to say?

  Mr Ely: No. I take the point, I think we as a Commission should be engaged in the business of saying, "Is it being used to assist people who really need it, rather than it being used as a fallback position for those who are in the system already?" Dare I say it, I think that is the nub of your question. I think it is something we ought to do.

  Ms Dodgson: I have a colleague who can answer the question, if you are agreeable, Chairman.

  Q35  Chairman: Would you like to introduce your colleague?
  Ms Dodgson: This is Roger Hamilton, who is Director of Policy and Legal. Rather than not answer the Committee's questions, which I think is not good practice, I did bring various colleagues with me.

  Mr Hamilton: I do not have the figures off the top of my head of the actual number of hits on the site, but I can tell you they are substantial and they are doubling every year and they have been doing so since the inception of the site. It is a public access site, so this is the public use of the site. Inevitably, because of that, we cannot tell who it is who is touching the site, looking at it, it could be people from other jurisdictions—and quite often it is—but we are fairly confident it is pretty well used now by those who are either seeking help themselves or are what we call "problem notices", professionals in the caring professions dealing with people with legal problems, looking for sources of help for them.

  Q36  Chairman: Almost related to that, in our recent report on CAFCASS, the body which is concerned with people who need advice and information, we drew attention to what seemed to be not very good working relations between CAFCASS and the Legal Services Commission, partly in relation to the Family Advice and Information Service Project, which I believe is known as FAInS—a term which probably does not mean very much to people, least of all the families involved—and more generally in relation to the mediation services and the overlapping funding arrangements between the two bodies. Is that something you have addressed or are now addressing?
  Ms Dodgson: We are addressing it and the Chief Executive of CAFCASS and myself have been in correspondence and have spoken. We have agreed we need to meet because we have agreed there is a common set of things we need to be working on and a common set of clients which are in contact with both agencies. Jonathan Tross and I will be meeting very shortly and we do believe we need to establish a much better, more explicit set of arrangements between CAFCASS and the Commission.

  Q37  Chairman: I suggest the bare minimum is you meet with the Chief Executive of CAFCASS. I am surprised that has not happened before, even before we reported on the subject.
  Ms Dodgson: I am talking for myself, Chairman. I have been in post three months and I am sure my predecessor will have met with him. Of course, previously we were part of the Lord Chancellor's Department together, so we were at regular business meetings, even before I took up the post full-time. So it is not a case of suddenly having woken up to the fact that CAFCASS are there and we have a common set of issues we need to deal with together. I think that is a very fair point you have made.

  Q38  Chairman: The Committee are concerned if any different government departments or related different government departments are in any way impeding progress towards a close working relationship, recognising we deal with some of the same people and between you seeking to provide some of the same services.
  Ms Dodgson: We would indeed, Chairman, and service level agreements which are written at great length and sit on shelves I am not a fan of, but explicit agreements about where the interfaces of boundaries are and how they need to be handled and managed I am a fan of, because we cannot have things falling down cracks and we cannot have things being duplicated or triplicated because of the current arrangements. So I am very conscious of that and I can give the Committee an assurance that I will personally be following that through, but it will not just be me because of the work needed to be done in the organisations and others of my colleagues need to make sure it happens across the piece.

  Q39  Mrs Cryer: Can I briefly go back to my question about your role in the removal of solicitors, when you gave some very frank comments and answers? Do your comments suggest that you feel that the time has come to end the self-regulation by solicitors of solicitors?
  Ms Dodgson: That is the purpose of the review the Government has announced, and we will contribute to that review, as I said earlier. The review has to determine and recommend to ministers and Government how the regulation should or should not change in the future.

  Mr Ely: Could I declare an interest and answer with a very firm no to your question? However, in saying that can I also say the relationship between that self-regulation body and the board and now the Commission has always been a sound one. It is slightly off-track but if one is seeking to measure quality—and I know this is for other people—if one is seeking to say, "Does it work", the answer is yes. I think for the Commission I would be sorry if that happened, but that is, as I said, the subject of an inquiry and I will not pre-empt that.

Chairman: In thanking you for your evidence today can I mention two things to you. One is, as you know, we are carrying out an inquiry into the immigration and asylum appeals system, in which you have a significant input, and the pace of that may quicken slightly in the light of impending Government decisions, so we may come to you for responses quite quickly on some of those issues. Your ability to do that is very well demonstrated by the excellent set of detailed replies you have provided to us to the written questions which we submitted to you, and we are very grateful to you for those and your help in this area. Thank you very much indeed.





1   Note by witness: I can now advise that we regularly monitor the number of page impressions, or individual pages viewed. Yearly totals since 2000 show that this figure had almost doubled year on year. The latest 6 monthly figure to June 2003 supports the view that this trend will continue Back


 
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