Examination of Witnesses (Questions 20-39)
15 JULY 2003
SIR HAYDEN
PHILLIPS, IAN
MAGEE, SIMON
BALL, JONATHAN
SPENCER AND
JOHN LYON
Q20 Dr Whitehead: The claim that
is made by LGA and Zurich Municipal is not that it is not just
a question of costs arising when they should properly pay them,
but the whole question of administering the machinery of CFA and
dealing with claims which often do not have a great deal of merits
and the local authorities do not recover their costs to the extent
that they might, ie, there is a built-in cost result of that whole
system as applies to them.
Mr Lyon: Yes, and I have seen
the research and the opinions that have come from local authorities
and we accept that some local authorities particularly are concerned
about this and do have difficulties about it. There are a few
things on that, I think. One is that what I said earlier should
help to clarify and simplify the procedures, that what I said
about the matrix and the work on simplification will actually
enable them to handle things more easily. Secondly, as I said
at the beginning, it is still in its early stages and local authorities
are still on a learning stage of how they are going to manage
these cases and the claims that they get. Thirdly, because, as
I say, this is a thing where we do need to work very closely with
local authorities and their insurers, we are talking to the LGA
and to their big insurer which is, as you know, Zurich Municipal
so that we have got a real understanding of their position and
their concerns, so those conversations we are taking forward at
the same time as we are working on simplifying the system to make
sure that their concerns are taken into account as we produce
the outcome of our work on simplification, so there is work to
do there.
Q21 Chairman: Just to go back for
a second to the costs of legal aid, the Criminal Defence Service
and the Community Legal Service, you have got extra money in the
current year, but have you got a best estimate for what you will
need for those services in 2003-04?
Mr Ball: I think the figures that
we are showing at the moment in the report unfortunately are less
comparable than you would like between 2002-03 and 2003-04 for
two reasons.
Q22 Chairman: You mean they are not
bigger?
Mr Ball: I will answer the size
question in a moment. The comparability is because there have
been elements, in particular the creation of a single Asylum Fund
which is now shared between the Home Office and the DCA, which
were not concluded at the time of this publication. There has
also been the transference from cash-based accounting to resource-based
accounting for the Legal Services Commission. The underlying result,
if one were to make those adjustments, is that our total legal
aid spend for 2003-04 is expected to be marginally above our spend
for 2002-03. Clearly that is subject to finalising discussions
with the Treasury regarding both the allocation of the Asylum
Fund and reconciliation of the resources in cash amounts, but
that would give a fairer position than you see at the moment from
the figures on page 20.
Q23 Ross Cranston: I just want to
come back very briefly to Alan Whitehead's point. It could be
argued that all these cases are actually providing access to justice
to people who otherwise could not have it. On the other hand of
course, you have got the view of the Local Government Association
representing those who say that these are unjustified. I think
the point I would make is that we really need some research about
the operation of the scheme. I think you are doing some research,
but I would just encourage the Department, you have obviously
got consultation now, but I would encourage the Department to
do some detailed research on the operation of the CFA so that
we can actually nail the issue.
Mr Lyon: I think we sent the Committee
the research that has already been done by Fenn, Gray, Rickman
and Carrier.
Q24 Ross Cranston: Unfortunately
that was before the system really came in.
Mr Lyon: Indeed and what that
says is that before the system was changed in April 2000 it establishes
the baseline for the next piece of research which we have commissioned
from fortunately the same people, so I will not need to repeat
their names, and they are looking at the funding of personal injury
litigation, both seeing what the impact is of success fees and
looking at the handling of clinical negligence cases and then
comparing it with other European jurisdictions, and we expect
that research to be available in about a year's time, so in a
year's time we will have, based first of all on that earlier research
on the benchmark and now what has happened since April 2000, what
the impact has been and how that compares with other European
countries.
Ross Cranston: Academics are always very
slow, I know!
Q25 Chairman: There speaks a lawyer!
Sir Hayden Phillips: We would
not comment on that!
Q26 Mr Soley: Turning to complaints
about solicitors, would you agree with me that the Office for
the Supervision of Solicitors, although it has improved somewhat
in recent times, is still seriously failing as a regulatory body?
Mr Lyon: Well, my view is tempered,
I think it is fair to say, by having read the annual report of
the Legal Services Ombudsman which was published on 8 July and
anyone reading that report would, I think, see that there was
still considerable concern about the performance of the OSS and
its ability actually to improve its performance in the way in
which it has committed itself.
Q27 Mr Soley: So if it is going to
have some difficulty in proving itself, then I share that pessimism.
Is it not time for it to go and is it not time to look at a more,
if necessary, statutory system of regulating solicitors? There
is a serious failure and it even makes the Press Complaints Commission
look quite effective, which is quite an achievement.
Mr Lyon: You will perhaps forgive
me if I do not follow you on that.
Q28 Mr Soley: But on the effectiveness,
obviously it is bad.
Mr Lyon: There are two things
here which come out of the Manzoor report. The first is what you
were talking about, Mr Soley, which is the longer-term issue and
it would take the longer term to have a major change in the way
that the legal profession is regulated. The Government, as you
know, are committed to a review of regulation and we would hope
shortly to be able to announce how we are going to conduct that
review, but that is inevitably going to take some time, perhaps
back to what Mr Cranston was saying earlier. Meanwhile, what the
Ombudsman has raised is the issue of whether the Lord Chancellor
should be implementing his statutory powers that he has at the
moment in appointing a Legal Services Complaints Commissioner
and the Ombudsman has said that she would want to be discussing
that with the Lord Chancellor, particularly when she produces
her interim report on the current performance of the OSS, which
is promised later this year and I know that the Lord Chancellor
is very interested in that and will be himself considering that
very carefully with her and others.
Q29 Mr Soley: I am not sure how long
we can wait on this because we have been waiting for years. I
have seen some appalling cases and I cannot be the only MP who
keeps a list of solicitors whom I would pay not to defend me.
I am not sure we should not actually turn that into a league table
of solicitors who have had complaints about them or a league table
of bad practice. Is that not a good idea for the short term?
Mr Lyon: It is certainly something
that we could look at with the Ombudsman. Let's be absolutely
clear, that anyone reading that report could not be complacent
about the current performance. And it sets out in the report the
history of the attempts by the OSS to improve its performance.
As you well know, that has been going on for some years and there
is very grave concern by the Lord Chancellor that, as you say,
this really ought not to continue and that the performance does
need to be improved and it needs to be improved quickly. The challenge
both for the OSS, for ourselves and for the Ombudsman is to make
sure that we can deliver improvements within a reasonable timescale.
Otherwise, as you say, we will have great ideas, but that will
take some time to implement. Meanwhile, we need to show an improvement
in the services that solicitors are currently providing and, as
I say, that is one of the things that we are considering.
Q30 Chairman: Is the Department developing
an alternative model? Is this really the last chance saloon, in
the over-used phrase, and are you actually working on what you
might have to do if the Lord Chancellor turned around and said,
"We're not getting anywhere. What can we do"?
Mr Lyon: Well, as I said, there
is a model already there which is the LSCC which would allow a
change in the sense that the Commission then would be able to
audit the work, it would be able to require plans and if those
plans were not implemented, it would be able to fine the body
which was responsible, so there is a whole range of powers already
there which the Lord Chancellor could take. In the longer term,
as I said and as Mr Soley has noted, much more fundamental issues
about the way the profession is regulated need to be raised and
are going to be examined.
Q31 Mr Soley: Can I pursue the message
in a sense. Because I had so many examples of bad practice in
asylum and immigration, I invited the Law Society to go through
my worst cases and they did so and they made recommendations to
solicitors about how they approach these cases. I am not quite
sure why they are doing that and having no impact on the office
for complaints. In other words, why is it that a body like the
Law Society relates to me in terms of what was a generalised complaint,
and I am not protesting that they did it, that they took that
action, but what I am protesting at is that the Office for the
Supervision of Solicitors did not even appear on the horizon,
on anybody's radar screen about the failure and consistent failure
and at times taking very large sums of money off people for doing
virtually nothing? Why is it that the professional bodies, like
the Law Society, have actually taken a more active involvement
in informing the OSS?
Mr Lyon: Well, the Law Society
has taken a series of actions. They have appointed the independent
commissioner, they have made available £20 million to be
spent over three years to improve the performance of the OSS and
they have brought in 60 new staff to get some more work done.
Earlier this year they outsourced some of the more straightforward
cases to solicitors. They have got a model office, a case management
system, a customer assistance unit and a client's charter, so
they have done a lot, but the truth is, as comes out in the report,
that it does not appear to be working and the challenge for the
Law Society which, as I say, has done all of those actions, is
in the next few months they can show that they can actually improve
the performance and reduce the weight of the caseload, which is
one of the things which is particularly worrying at the moment,
that the caseload of the OSS is increasing and, as Zahida Manzoor
says in her report, she does not believe that is sustainable.
Q32 Mr Soley: Am I right in my impression
that solicitors' companies that have a practice manager tend to
make less mistakes and have a better structure for dealing with
them than ones that do not?
Mr Lyon: I do not know the answer
to that, I am afraid.
Q33 Mr Soley: The thing I am really
saying is that that ought to be looked at because there is a lot
of impressionistic evidence which suggests that a practice manager
will actually stop complaints before they happen.
Sir Hayden Phillips: I would like
to make three comments. First of all, I am sure it is right that
we should thoroughly review this whole field; it is far too complicated.
Secondly, we do have the opportunity, if the Secretary of State
wants to take it, to appoint a Legal Services Complaints Commissioner
and that might be necessary. Thirdly, the more I looked at this
I think there is a cultural problem in the sense that when complaints
are initially made, at that crucial moment when they first arise,
they are not handled, it seems to me, sufficiently well in terms
of handling the customer. There is too much focus on process and
not enough on trying to give a result to the customer. This makes
the complaints much more long and drawn out and I think there
is a real cultural issue in the solicitor profession.
Q34 Keith Vaz: Could I put it to
you, Sir Hayden, that the cultural problem is with your Department.
Mr Lyon is demonstrating a most complacent attitude to the complaints
against solicitors. In fact he was repeating exactly the same
words that were put to me when I was a Minister in the Department
four years ago, which is that we must give them a further opportunity
to improve. Only last year when the question was put to you by
the Home Affairs Committee and you were asked, "Were you
very happy with the operation of the Office for the Supervision
of Solicitors and its performance so far?", you replied,
"I think I was saying precisely the opposite". Twelve
months have now passed and what are you going to do because this
is the same stuff that you have been saying for four years and
there has been no change?
Sir Hayden Phillips: Well, what
has happened is that the satisfaction of the LSO with the performance
of the OSS has increased by 10% over the last year. Now, we have,
as you know, tried to set some fairly tough targets and to give
the Law Society and the OSS time to make demonstrable improvements.
They have made some, but what we are saying is that they have
not made enough and that is why I think we are in a position now
where further action will have to be taken.
Q35 Mr Soley: During our evidence
taken on CAFCASS, we heard that they spent £5.9 million on
a computer system which did not provide any greater casework management
system, and they stopped it because if they had gone on, they
would have been accused of wasting public money. Well, as it does
not work, one is tempted to say that a waste of £5.9 million
would be not an insignificant amount of public money.
Mr Magee: I think I should take
this one. I do not think you can necessarily conclude that stopping
what they were doing was wasting all of the money. I am not close
to CAFCASS and to their IT system, but, as I understand it, some
significant improvements in infrastructure were provided for that
money and some installation of PCs, terminals and desktops, were
also provided for that money as well. It is true, and you obviously
know this anyway, that the full system that they wanted to get
was not procured in the way that they had originally intended,
but I can empathise with the Chief Executive and the Board of
CAFCASS because in this area of government, you are damned if
you do and you are damned if you do not. If you take a measured
business decision that says at a point, "We are not going
to realise the full benefits of the system" and stop, then
you are subjected to the sort of questions that you ask. If, on
the other hand, you carry on throwing good money after bad, you
are in danger of compounding the problem. Now, clearly I generalise,
but one generalises from experience of other systems, some of
which have gone well and some less well.
Q36 Mr Soley: I understand that and
I accept that there are certain limited advantages to what they
had planned. They have actually, as far as I can tell from talking
to them and others, developed quite a good word processing system
which is comfortable to work with, but that is not good enough
given that the basic need was to develop an integrated case management
system. I suppose my question really might go beyond your Department,
but there has to be something wrong with our procurement policy
if we cannot give a clear instruction and/or get it responded
to by an appropriate company to produce a greater casework management
system and it seems to me that given the nature of the Department's
work, you are going to need other systems where there is integrated
casework management.
Mr Magee: Absolutely, and it is
indeed a more general point, a more general point than for the
Department for Constitutional Affairs, but I would not want to
belittle what CAFCASS has achieved, to come back to the CAFCASS
issue. It does not seem to me that the roll-out of 1,500 PCs,
that the fact that they have only 20 sites that still have to
be surveyed, or that the availability to all office-based employed
guardians of IT and other CAFCASS employees on the whole represents
a failure. It represents a significant step in the right direction.
It is true that it does not go as far as the ambitious plans that
were set out, as I understand it, at the beginning of the period
when CAFCASS was set up.
Q37 Mr Soley: But the core failure,
remembering that this is about dealing with children who are in
very considerable need, the core failure is the inability to update
the records within the system so that the system can move fast.
All the evidence we have had was that there were too many delays
anyway in allocating cases to caseworkers and getting cases back
to court again and all of this means more emotional distress for
children, so the core need on the computer side, and it is not
all about computers by any means, but the core need was to develop
a system which enabled you to pass information securely and effectively
between the various parts of the system and that is not there
and that is a central issue.
Mr Magee: I do understand that
point and one of course accepts that their business will be much
better dealt with when they have reached that point. I think that
the feature perhaps to emphasise here is that they do have plans
during this financial year, as I understand it, to develop that
case management potential. They now at least have the infrastructure
on which to base the case management system and, without re-rehearsing
all of the very well documented points about the problems that
CAFCASS had when it started, the fact that they did have the problems
on start-up could not, I imagine, have helped them as far as the
development of their IT system was concerned.
Q38 Mr Soley: I would actually invite
the Department to look hard at the procurement system they have
for information technology because if CAFCASS is anything to go
by, it is not working and it may not be working in other departments,
so you need to look at that procurement system.
That must be right, must it not?
Mr Magee: As you know, Mr Soley,
CAFCASS is a non-departmental public body, indeed one whose parents'
departmental responsibility is transferring, but perhaps I could
reassure the Committee as far as the Department for Constitutional
Affairs is concerned. We do indeed have not only plans, but actions
in place to look hard at the way in which we procure IT. I think
we have learnt from our mistakes, we have brought responsibility
for IT into one place, we have brought responsibility for procurement
into one place, and we ensure that the IT and procurement arms
of the Department work very closely together. We have for all
departmental systems an information system strategy now that spells
out how it is that we intend to move forward. We are carrying
out across the range of our operations an IT audit which will
enable us to take stock relatively of the position across the
Department. We do not particularly want to mention the "L"
word here, but thinking about the Libra system in the magistrates'
courts, we have learnt lessons about the way that that was procured
in the first instance which we intend to implement or are indeed
already implementing for the good of the Department as a whole.
Q39 Chairman: Libra has cost £557
million and was a running disaster story. The Public Guardianship
Office system is still, as far as I know, not fully up and running,
all of that in addition to CAFCASS. Is there an IT project on
a major scale within the LCD's area which is actually working
properly?
Mr Magee: Yes, there are several
things, and I thank you for giving me the opportunity to tell
you about the things that are working well. I think in the case
of Libra, if we could just start there, the roll-out to 41 magistrates'
courts committees in infrastructure seems to me to represent a
considerable step forward. The plans now in place for a case management
system are a step forward themselves. When Sir Hayden and I appeared
before the Public Accounts Committee on Libra, we freely admitted
that mistakes were made in the initial procurement, to come back
to one of Mr Soley's points, in the way that that was set up on
both sides, on the supplier side and on our side. If I can turn,
as your question invited me to, to the success of the Department,
it may not be the case everywhere in government, but we have a
long-running four-year-plus contract with Electronic Data Services
and on the whole of course you always have your ups and downs
with IT systems, but those systems are supplied and are running
effectively. We have two very exciting initiatives, one of which
is fully rolled out and another which is in pilot stage and about
to be rolled out which I think puts DCA at the forefront of electronic
government. One is money claims on-line which enables anybody
who wants to take action against somebody whom they wish to claim
money against up to £100,000 to do so from their computer,
24 hours a day, seven days a week, and defence can be entered
there too. In a very short space of time, because this system
was introduced only in February of last year, it has become the
second biggest, albeit virtual, county court that we have got
and this has had excellent feedback from users. I went myself
to Northampton where the core system is based a couple of weeks
ago to see what had contributed to the success there and to gain
an understanding of it. The second thing which is critical to
the criminal justice system and ensuring that witnesses, in particular,
are better looked after is something called Exhibit, which is
the exchange of hearing information through information technology.
That has been up and running in three courts in Essex for a year
now and will be introduced into Snaresbrook Crown Court, one of
the largest crown courts in London, later on this year. So the
answer to your question is that I think there is reason to be
confident about the way that we are moving forward as far as systems
are concerned. The final part to this answer is that we have ensured
that our three major IT contracts, the big ones that we have got,
come to an end coterminously around 2006 and we are making plans
as of now to recompete those systems across government and the
word "competition" is very important in that respect.
Sir Hayden Phillips: Can I just
add two comments, Chairman. On the general procurement point,
I think one of the things we have learnt, and other government
departments too, is not to put all of your eggs in one basket.
You look very carefully at the suppliers and you decide what they
are best at and they are not all best at everything. I think that
in the mistakes which have been made in Libra that was the case,
and certainly in other government departments, and that lesson
has been well learned. Secondly, a marketing point, Chairman.
We are very proud of the Xhibit project which is central in the
criminal justice system. It is a real first and if the Select
Committee or members of it would like to—
|
