Examination of Witnesses (Questions 1-19)
MR DAVID
LAMMY MP AND
MS CLARE
DODGSON
14 OCTOBER 2003
Q1 Chairman: Welcome, Mr Lammy and
Ms Dodgson. We are very pleased to have you before us. The Committee
agreed to undertake a quick inquiry with just a couple of evidence
sessions and we have also received a lot of written evidence in
order to be in a position to comment to the Government on the
proposal when it is put forward along which they shortly have
to make a decision and we are glad to have your presence with
us today. One of my colleagues, Ross Cranston, will want to declare
that he is a lawyer but not practising in this field. We understand
that you would like to make a short opening statement, which we
are very happy for you to do, so go ahead, please.
Mr Lammy: May I begin by saying
that I am very grateful for this inquiry. The Committee will be
aware that, if you like, the old Lord Chancellor's Department
began this consultation process on asylum legal aid just as it
became a new department and myself and the Lord Chancellor and
Secretary of State, Charlie Faulkner, arrived in the department.
That consultation came to an end at the end of August. What I
have endeavoured to do is to go out and speak to practitioners
in order that I could be properly informed as to how they felt.
I have to say, as it is kind of relevant, as the MP for Tottenham—and
I see Clive Soley smiling—I have a fair assessment of these
matters because I see them every week in my surgery and indeed
I know some of the leading practitioners in this area because
I sometimes have occasion to refer people for help. So, we went
out and we talked. Naturally, I did not just stay in London, I
went down to Brighton, to Barnsley, to Cardiff and to other places
and the Secretary of State endeavoured to have the All Parliamentary
Group, Neil Gerrard's group, come in and see him and talk about
these matters as well. Our position is that we are listening and
we want to take into consideration the views that this Committee
comes forward with and I am grateful that you have indicated that
you are conscious of time and other matters in assisting us with
that process. It is very helpful that Clare is here with me as
again the new Chief Exec of the LSC and I know that she too has
been around and about and she might want to say something about
that. In short, to be clear, we consulted on the basis that we
needed to ensure value for money in this area. The legal aid asylum
fund has increased from around £74 million to £181 million
over the last three years and it must be right that, within that
context, we need to make sure that we have the mechanisms in place
to ensure that that money is being spent properly and that, at
the same time, we are guaranteeing quality. Members will know,
because they made many, many representations and indeed, when
I arrived, I was making representations about the large amount
of advisers or supposed advisers, quasi-legal people in the system,
who were providing very, very poor quality advice and I think
we have sought, or at least my predecessors have sought, to do
a lot about that in terms of the establishment of the OISC, accreditation
for advice and other things. At the same time, there are still
concerns about poor-quality providers who are lawyers and this
consultation was conducted on the basis of accreditation for them
as well; it was conducted on the basis of the unique file number
to ensure that there is not duplication, that people are not presenting
having gone to multiple lawyers and having been through the system
two or three times and, by and large, the lawyers to whom I have
spoken have been receptive to both accreditation and the unique
file number. It is right to say that they have not been receptive
to a cap on hours. That is not surprising in the sense that it
would be surprising for any lawyer to say that that was good.
The determination we have to make is, do we have that figure approximately
right and to look and hear what people have to say about the particular
case, mindful of the fact that we only have so much money and
that we need to get people through the system with quality advice
as quickly as we can. That is as much as I would say in opening;
I do not know if Clare wants to add anything.
Ms Dodgson: Just to reinforce
what the minister has said and also to say that, like him, I have
been out and about talking to working practitioners, visiting
magistrates' courts, visiting working firms with legal aid suppliers
and visiting representative bodies for different aspects of the
profession. So, yes, very much again listening and understanding
what is happening out there in the field.
Chairman: We thought we might begin by
looking at the cost aspects with which you started your statement.
Q2 Peter Bottomley: First of all,
the sort of question you would expect which is, if the average
cost per matter—a technical expression which most people
will no doubt understand—has risen by about 93%, what have
been the main causes of this increase?
Mr Lammy: I think there are a
number of things that will lead to that. There is still duplication
in the system. It is still the case that some people—and
indeed they present at my surgeries—have had more than one
solicitor and we have not, at this stage, been able to track that
process and indeed the mechanisms that the LSC currently have
are largely based around surnames and other things and that does
not enable you to track people.
Q3 Peter Bottomley: So, this is where
the file number issue would come in?
Mr Lammy: That is where the file
number issue is significant. I am afraid that I have to say to
the Committee that, just taking London as a whole—and obviously
I have a feel for my own area and people will have a feel for
their own area—we have 372 suppliers in London. The LSC
categorised those suppliers, as Category 1 suppliers, Category
2 suppliers and Category 3 suppliers. Category 3 suppliers can
be loosely described as poor suppliers; they are people who have
been audited by the Legal Services Commission and that audit has
come back suggesting that they are over claiming and, in London,
there are over 100 in that category.[1]
Q4 Mrs Cryer: Did you say over claiming?
Mr Lammy: Yes. The LSC has not
been satisfied with the audit that has come forward, and that
would bear up the evidence that comes from MPs. I have certainly
had cases where a solicitor has assisted in the witness statement,
for example, and the witness statement has amounted to, "This
person was involved in politics for 30 years in this country",
bosh, there we have it. It is not satisfactory to then claim the
full sum and that sort of practice is continuing. Therefore, we
need to focus very definitely on what activity is taking place.
We also need to ensure that the right people are commissioning
the right bits of work.
Q5 Peter Bottomley: I do not want
to break your flow but, if the sum has gone up for each matter,
have things become worse or is there some other exploitation?
Why have the costs per event risen?
Ms Dodgson: I think it is fair
to say that there is a balance really to understand what is going
on underneath that. Partly, we have put in more checks and balances
which take more time to do; partly, we have multiple suppliers,
particularly in London, so we are paying overhead costs, I suspect,
more frequently and more spread out than we should. A third issue
is that the number of people and the number of applications being
processed has increased. A fourth point is that there have been
some changes in the Home Office, really positive ones, catching
up with some of the backlogs of processing, where we have been
involved in helping with that and therefore that has generated
some of the costs as well but, as the minister says, there are
real questions about quality and value for money underneath and
I think that is what we have to be really rigorous in addressing.
Mr Lammy: Also, Peter, the consultation
was very much conducted on this basis. We need to ask ourselves
under what circumstances does someone need a medical report which
is currently paid out of the pot? Under what circumstances does
someone need a expert report which is currently paid out of the
pot? Under what circumstances does someone need to have more than
one interpreter at an interview, which is currently often the
case and which is paid for out of the pot? Under what circumstances
should we be paying for travel and waiting times? Plus the fact
that we are worried about those at the bottom end of the market
who are undermining the very significant quality. There are some
very, very good providers who have been there historically. I
think it is combination of all of that.
Q6 Peter Bottomley: I suspect that
most of this afternoon's session will be about the proposals and
how they might improve matters either in terms of quality of service
or in terms of saving taxpayers' money and what the disadvantages
may be to deserving cases. My preliminary question was about how
we had got to where we are. Perhaps we can move on a little from
that. When funding was introduced for representation before the
immigration adjudicators and IAT, there was an expectation of
an increase in the total amount of spending. Can we know what
the figure was that was expected and whether the increase has
gone beyond that expected increase.
Mr Lammy: I do not have that figure
available to me. What I can say is that, yes, we would expect
that to increase the pot but, at the same time, it would also
be right, if my recollection of that period is true—and
obviously I was not in post then—that part of the problem
at the tribunal stage was that there was not adequate throughput
at the tribunal and that in fact people were representing themselves
at the tribunal and that is lengthy and slow. Once you have the
advocate at that stage and we have increased the capacity upon
the adjudication stage, so you can get the throughput to tribunal,
that in itself must also be a factor within cost.
Q7 Peter Bottomley: I can understand
that. If the figures are not with you . . .
Mr Lammy: I can undertake to provide
those.[2]
Q8 Peter Bottomley: It would be helpful
to know. If one could then go into slightly more specific fields.
You mentioned four things which might contribute to the increase
in total spend, some of which, as I say, would have been expected.
I am not saying that all this is unexpected. There is the introduction
of funding for representation; there is the effect of the Human
Rights Act bringing greater complexity to asylum work; there are
the results of the dispersal policy or practice; and the increase
in the costs of disbursements as opposed to the profit costs.
Is there any way of saying roughly how much the increase might
be attributed to each or any of those?
Mr Lammy: I think the view in
the department is clear: we would expect all of those to have
increased the pot but not as much as currently is the case. Some
of them have what may be a negative effect. Let us take dispersal.
Yes, it is the case that we will have to pay for travel to hearings
and other things, but it is also the case that regional lawyers—and
the lion's share of work that has gone to regional lawyers has
increased substantially—are cheaper than lawyers in London.
So, there is some balancing there. We are paying for more waiting
times, but actually they are cheaper. The Human Rights Act—and
obviously I am Human Rights Minister and I have to say that it
is a good thing—we are unable in any area to disaggregate
what that cost is; that would just be too disproportionate for
the system. The costs of disbursements is very much one of the
things we put in the pot in terms of the consultation.
Ms Dodgson: I think that the unique
identifier number will help because, whilst we do know that our
regional suppliers are higher value and lower cost, there is this
question about duplication and there is also the question of value
where we are mandating the specialist centres for people, so we
are not getting suppliers with legal aid contracts who are bringing
clients out of some of the specialist centres where we have already
had public funding to pay for a service in there already.
Q9 Peter Bottomley: I suspect we
are moving on to what is more likely to happen rather than the
model of the past. The consultation paper was well written, but
there is a massive gap in it which is, given that one of the reasons
for some of these changes is the use of taxpayers' money, the
amount of it and whether it is done properly, which is perfectly
fair and reasonable and I am not suggesting it is a criticism,
I am one of those who would expect that there would be some kind
of model showing what might have been the reduction in the amount
of money which would be spent given the changes we know that are
going to happen, for example if there are going to be fewer people
applying for immigration or asylum tribunals and adjudications,
and the various other reasons why the costs will come down naturally.
How much might the budget come down even if these changes, which
have a cost implication, are not introduced?
Mr Lammy: Peter, I can understand
the question but I have to indicate the difficulty in providing
that. Numbers are coming down and we have see a third drop this
year for the first time in five years and you will know that I
sit on the joint ministerial body with Beverley Hughes that is
largely responsible for all those matters that are very firmly
within the Home Office, but it is obviously hard to predict where
that will go, it being, yes, a substantial drop, but nevertheless
the early stages of that and, as I have said, it is difficult
to cost certainly the Human Rights Act and some of the other aspects
given that we are at the early stages of that. I will endeavour
to go as far as I can in costing that and providing that to the
Committee but I understand that there is difficulty in reaching
those determinations at this stage and, in a sense, things like
the introduction of the unique file number will enable us in a
much greater way to associate those costs in a way that previous
systems have not facilitated us in doing.
Q10 Peter Bottomley: The stakeholders,
those who are interested in this, would say that we ought to ask
you and I now do, if none of the changes in the consultation were
to take place, no unique file number and all the rest of it, what
changes would you expect to the costs anyway? There are some fairly
obvious ones. If you moved on to staged payments, that has brought
the cost higher initially but they are paying now what they would
pay next year, so there is a reduction that would follow from
that. If you had a reduction in the numbers of people coming for
adjudication, there is an expected fall there. If you go on expanding
the legal service provision in dispersal areas, as you have indicated,
there is a benefit there. There is the question of non-suspensive
appeals now in 24 countries. In my day, departments could not
make suggested changes without some detailed negotiations with
the Treasury and somebody, whether in the department or in the
Treasury, ought to have known what the expectation is from which
variation will come from these changes.
Mr Lammy: I can indicate the expectations
on the basis of these changes but we are consulting, so let us
see how that comes out. The furthest I can go is that we expect
that to run into the tens of millions but I want to say that a
very, very, very preliminary figure is around a £30 to £40
million saving.
Q11 Chairman: As a result of the
changes you have proposed?
Mr Lammy: As far as the changes
as we can model them go, but that is as far as I can go.
Q12 Chairman: Mr Bottomley asked
the question as to what would be the reduction that would result
from the other things that are happening without any of the proposed
changes being made?
Ms Dodgson: I think it is fair
to say that there would be a reduction because we have seen the
figures go for three years year-on-year from £80 million
to £170-something million. Some of the changes in government
policy have seen the numbers of applications come down and therefore,
by definition, there has to be a saving. The point about the unique
identifier number is another area where we would see a saving
because of a reduction in duplication and so on. I would like
to see the Legal Services Commission looking at reducing some
of the bureaucracy and we are already doing that because, as I
think I said—
Chairman: You are going on to changes.
We are simply trying to establish what reduction would have happened
if no changes were made.
Peter Bottomley: If, for example, there
is a drop in the number of asylum applications by 35% on the figures
of last year, can we presume that there is a 35% saving there?
If the number of decisions for next year based on application
targets which the Home Office, we are told, is meeting were to
fall by over 50% from the peak years, will there be a roughly
50% saving there?
Q13 Chairman: We are quite happy
to receive some information in writing fairly quickly. You should
know that, when we embarked on this, we were told that a memorandum
was coming our way which would deal with no doubt matters such
as this. We were told today that no memorandum is now coming and
I am beginning to suspect that this may be because you have not
actually made some of these calculations which we would expect
to be made. What is going to happen if we do nothing? What benefits
will we secure from doing X or Y? This is simply the preliminary
to our questioning in trying to find out what the cost background
is and we really do need to see some figures and we are surprised
that you have not been presented with those figures.
Mr Lammy: As I have indicated,
modelling in this area is difficult and that is largely because
of the kind of data that the LSC has traditionally worked under
and Clare is charged with tackling that. The proposals themselves
go to this issue in terms of the unique file number. I have indicated,
as far as I can, that the figure is approximately £30-£40
million, but I do not want—and I have to be careful—to
put a specific figure in the pot when that figure is variable
and is based very much on the results of the consultation. I will
endeavour, as far as I can, to provide you with that information
and I hear what you say.[3]
Q14 Mr Soley: My interest, David,
a little like you, is how we deal with what is a very large problem
and I have a caseload of some 400 at any one time and, on a recent
trawl, between a quarter and a third had what I would describe
as bad representations by the legal profession and I have to say
that the Law Society has been very, very cooperative with me and
have sent a guidance to solicitors. Bad representation means everything
from appalling representation where I have asked for the individual
or the company not to put in any further ones or representation
that I would not be prepared to pay for individually. So, I know
where you are coming from on this. My first question to you is
this, capping will work because it is a very blunt instrument
and that is the attraction of it, but have you looked at other
ways of achieving it because, within this group, there are some
very vulnerable people? So, what other options have you considered
other than capping?
Mr Lammy: Clive, what we did,
which has become a little lost in the noise as tends to be the
case in these areas, is that we did actually consult on the basis
of exceptions. We say that on page 8 of the consultation and,
on page 10 of the consultation, we asked the profession what those
exceptions should be. The lawyers to whom I have spoken and the
representations that I have read have come up with a number of
things. Some have talked about the situation with unaccompanied
minors, others have talked about mental illness, and obviously
the not for profit sector, the Terence Higgins Trust and working
with Aids victims particularly, Victims Against Torture, the Medical
Foundation and others have had representations about particular
difficulties. It is our job to look at that in the round and to
reach an assessment about the best system going forward. We did
consult on the basis of exceptions but I am glad you are supportive
of the context that there has to be some sort of cap.
Q15 Mr Soley: The ideal way would
be to make sure that all the representations were of a good quality
and done within a timescale. The problem is, how do you deliver
that without a very bureaucratic or controlling system? If you
are arguing that you would look at exceptions to it, are you then
saying that the reason why you set the cap so much lower than
the Legal Services Commission set it recently is because you want
it to be a flexible range of caps? Is that what you are saying?
Mr Lammy: Just for clarity in
this area, the cap that we set is roughly the mean average for
what we saw as a typical case and you will understand that, when
we are looking at this, we are looking at the lion's share bulk
of classic, straightforward, asylum-type cases. A person presents,
has some English but needs some assistance, the initial interview
is conducted, the SEF form and the witness statement is completed
within two hours or so, a further hour for advice, half an hour
for correspondence and that gets to an approximate working day
and five hours was the figure we came out at. That was my understanding
of the basis on which that figure was reached. Regarding the LSC's
assessment in terms of its manual and other things, a significant
part of the hours, on previous assessment, was to do with the
interview stage and to do with travel and waiting time and we
are needing to be rigorous about both those two things because
my experience as an MP and in talking to practitioners is that
it is in fact not qualified solicitors who are attending the interview
stage with many, many people seeking asylum, it is an outdoor
clerk who is attending, and we have to ask ourselves whether it
is right that we should pay for someone who is unqualified or
should we only be paying in the circumstances in which someone
has full accreditation. Travel and waiting time is something else
that we must consider in terms of the purse. Perhaps that figure
should be incremental within the over-arching figure per hour.
I think those are the kinds of considerations we have to reach
when looking at the overall plot of five plus four.
Ms Dodgson: Could I also pick
up on the right first time point because, in parallel, that is
why we are bringing in audit systems, that is why we have quality
accreditation, that is why we are developing peer review and that
is why, particularly in London where supply is poor, we are removing
legal aid contracts. So, I believe that we have to do both things
at once.
Q16 Chairman: The time guidance for
asylum work that you issued in July 2003 was more generous.
Ms Dodgson: Representation at
interview and travelling and waiting times were big elements of
that and I think what we are looking at is getting a more intelligent
understanding of how we could break those elements down and what
is it legitimate and reasonable to look for public funding to
pay for, and I do feel strongly about paying legal aid funding
at the rate we would pay for legal aid suppliers and getting,
as the minister has said, not terribly good representation. The
other question is, what value does that add and how do we get
the balance between having properly worked-up cases and then making
sure that is done rigorously because, if it is not, it comes back
through to be redone again, your point about right first time,
but how much do we expect the public purse to pay, for how long
and to what type of adviser to make sure that that happens, and
how do we work very closely with advisers in the Home Office Services
to make sure that we are complementary and not duplicatory about
the work that we do with people in that process?
Q17 Mr Soley: I have a strong gut
feeling that your figure of five hours is too low; I think that
is going to need to be revisited. My next question to you is,
what do you do about the exceptional cases, of which there are
a number and, in a way, perhaps the most obvious one is where
the representation has been inadequate?. Are you going to say
that those inadequate representations count as part of that money
because, if so, I am going to have trouble with a lot of my people
and I am going to have to start weeding them out even harder than
I am already!
Mr Lammy: I think that clearly
we have to ensure that we are doing all we can to drive quality
up and, in that context, there are two things we are doing. The
first thing is accreditation and I have talked a little about
that and I could say some more about that if you want me to. The
second thing that we are doing is that we are being quite ruthless
about supply. The LSC's assessment is that we have over supply
in this area and I certainly know that the context for me, as
the MP for Tottenham, is that I do not get people presenting and
claiming asylum at my surgery who actually do not have representation.
That is not the norm at all. We have 372 suppliers in London doing
asylum work. Conversely, we have 225 suppliers doing housing work;
we have 342 doing family, divorce-type work. We think there is
over supply and we have indicated that, next year, firms that
have been consistently Category 3 will not have their contracts
renewed. So, we have already got rid of 46 firms, we have introduced
peer review to the LSC and brought in senior practitioners to
monitor and ensure that we are able to withdraw contracts or assess
whether standards have been adequate. There are issues there about
the appeal procedures that solicitors expect to go through and,
whenever you are dealing with lawyers, you have to be mindful
of that and that is something that I want to continue to look
at, if I can put it in that way. Alongside being quite tough on
the bad quality over the next period, having already got rid of
46, we obviously want to ensure that we have the right number
of people to do the right job of work in a market where there
are falling numbers.
Q18 Mr Soley: I understand that and
I have no problem with it but, however good your system, you are
going to have solicitors who fall well below that in their presentation
and, if I then get a case like that and I say to you, "This
person actually needs better representation", what do they
do?
Ms Dodgson: I think there are
two questions, whether somebody's representation has not meant
that their case has had a fair hearing, in which case there is
an appeal system, or there is the seriousness of the case where,
if something is very serious and very complex, again, it is pointed
out when you make exceptions and what criteria you use to handle
those exceptions. Yes, if somebody has not had good-quality representation,
they would need to be able to come forward and say, "This
needs to be looked at again because my case has not been set out
fairly, properly and rigorously."
Q19 Mr Soley: I think I would feel
a little more comfortable with this if I had a better indication
from the department that the system of appeal against bad representation
or in very special circumstances and I am thinking really of the
torture victims, that is where the difficulty lies for us, in
a way. We all know the immigration case that becomes something
else and I have to say, sadly, that solicitors, either knowingly
or unknowingly, do collude at times with time wasting by multiple
applications, but, when you have someone where there is strong
suspicion of torture or an ill representation, to have a cut off
point of a cap troubles me.
Mr Lammy: As I say, we consulted
on the basis of exceptions and indeed we have had representations
on that and we are looking and listening to that and you will
understand that it is my practice, in terms of the demographics
in Tottenham, that the kinds of cases I see at my surgery tend
not to be the better providers in London who actually turn people
away and are quite responsible about the cases they take and tend
to take the more complex cases and they have made some noise in
responding to the consultation. It is my job to remind them that
we did consult on the basis of exceptions, to refer them to page
10 and page 8 of our consultation and then to come to a view on
the basis of everyone we have spoken to, including this Committee,
and indeed to be mindful that there will be people who get bad
advice initially. We want to see that fall to a very low number
but we also have to disaggregate that—and I certainly see
them—from people who have been right through the system
or indeed have been through the system in another country and
then come here to try again or to go through the system again
with another lawyer and other lawyers assisting in that process.
So, those are the determinations that I think we need to make
in coming to our conclusion.
1 Note by witness: In the evidence presented
on Tuesday 14 October, we stated that there are over 100 immigration
and asylum solicitors firms in the London region that have had
the LSC's worst audit rating `Category 3'. This figure reflects
all audits including those from previous years where firms have
subsequently withdrawn from their contract, or had their contract
removed, and those firms where the rating is an unconfirmed preliminary
result and is subject to appeal. The current number of immigration
firms confirmed with category 3 ratings in London is 51. Back
2
Ev 28 Back
3
Ev 29 Back
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