Examination of Witnesses (Questions 280
- 299)
TUESDAY 27 APRIL 2004
MR DAVID
LAMMY MP
Q280 Keith Vaz: Are you being consulted
sufficiently by the Home Office on its policy changes?
Mr Lammy: Keith, you will be aware,
as a former government minister, that of course we consult across
government.
Q281 Keith Vaz: Is the Home Office
consulting you?
Mr Lammy: We do that every day
of the week, and I speak to Home Office ministers, correspond
with Home Office ministers every day of the week. The nature of
our arrangements is such that, yes, of course, we pick up downstream
costs and, yes, of course, we have seen a rise in our criminal
legal aid spend. I remind you that our budget, in terms of the
civil spend, has remained static against other countries that
are cutting theirs and that we are spending on advice across government.
Q282 Keith Vaz: The answer to my
question is that you are being consulted sufficiently? I asked
only whether or not you were being consulted sufficiently, I did
not need a lecture on how government works.
Mr Lammy: I think it was that
you derive things from the Matrix report which I did not derive
when I read it. Of course we are being consulted and I am happy
that we are working together. You will know that, historically,
all governments want to be as joined-up as they can be. I think
innovations like the Joint Asylum Fund are important and, of course,
I think that there is a long-term agenda on legal aid which must
involve greater work between government departments and the stakeholders
themselves, the Law Society, the Law Centres Federation. I want
to see that fundamental work going on. I think that this inquiry,
I have to say, will be very important in terms of that long-term
picture.
Q283 Chairman: Do you agree with
the Matrix report's suggestion that the DCA needs to undertake
more robust legislative impact analysis and seek an understanding
either from the Treasury or other government departments that
the DCA's budget will increase by the amount necessary to meet
increased demand? That was what I was hinting at when I said do
you need to take a more aggressive attitude which said, "If
you do this," particularly the Home Office but some other
departments are involved as well, "then it will have such
an impact on our budget that either our budget has got to be increased
or we will do less work in other important areas." Is that
process taking place and, if not, should you develop it?
Mr Lammy: The process is taking
place in the sense that, as I have said, we are three years down
the road, in a big area of spend on asylum and immigration, we
have a joint budget. We have only just published it, but let us
think about the report across government and let us see where
the direction of travel is on some of these other things. Clearly,
there is a short-, medium- and long-term agenda on legal aid and
the long-term agenda is going to mean working ever more closely
together, and that is particularly because on the civil side important
advice is occurring in other government departments.
Q284 Mrs Cryer: David, in The Times
of 22 March, it was suggested in a report that "Ministers
want to reduce the soaring cost of claims against public authorities
so that the money can instead go to frontline services. . ."
with which I am sure we would all agree. You are quoted also in
the piece, as David Lammy stating that there was scope for reducing
public funds for claims by "millionaires' ex-wives over divorce
settlements." Are there any plans to cut eligibility for
legal aid in certain areas, such as medical disputes, education
or ancillary relief claims? Also, in family disputes, where one
of the parties was in possession of substantial assets, would
it not be easier to recoup the money spent on legal aid, post
settlement, rather than restricting eligibility, as you appear
to have suggested?
Mr Lammy: The first thing is,
you will understand that it is difficult for me to account. Legal
aid is an area where, quite rightly, journalists seek to write
about it on a regular basis, and I cannot account for all that
they have to say. I think they write about it on a regular basis
because it stands alongside the Health Service and universal education
as very important things for the socially excluded and important
parts of a civilised democracy. That said, your question cuts
to the heart of the overall budget that we have, a £2 billion
budget, and a budget that is not set to increase. We have commitments
in health and education, we have seen the growth, as was indicated
before, on the criminal side, a budget that we have to make work
better. That does mean there will be short-term scope and eligibility
issues which, quite rightly, the department will have to look
at from time to time. All of those decisions we consult on. Last
year we were consulting on changes to the Asylum Fund. Shortly
after that we were consulting on changes to the criminal scope
and we may well want to come forward with a discussion about changes
to the family side. Our own internal discussion is not complete
there, so I cannot comment on speculation in the media. It is
very hard to do that.
Q285 Mrs Cryer: Just to clarify further,
have any means been found to save money on the legal aid scheme
without having to make further cuts in eligibility? A possible
example includes a maximum payment for expert reports, which the
Legal Services Commission has stated have been escalating recently.
Mr Lammy: I would welcome that.
I think I indicated when I spoke to you on asylum that I think
the expert area is one that needs more work and greater scrutiny.
The LSC is working with the Law Society and others in this area.
There has been a growth of the use of experts, the use of interpreters,
certainly on the asylum side, but the use of experts generally
across the piece. I think that there has been a call for greater
standardisation, greater clarity and a greater understanding of
where best an expert is used, how many experts are used best,
whether one needs two experts for two sides, the independence
of an expert, whose expert is it, is it the judge's or is it the
claimant's. There is a whole piece of work there that we are undertaking
and I think it is fundamental and important.
Q286 Mrs Cryer: There have been quite
a lot of headlines recently about medical experts giving wrong
conclusions about the deaths of children and a lot of women have
spent time in prison, so presumably you will be looking at this
as well?
Mr Lammy: I know that in the particular
case which has hit the headlines my colleagues, in terms of the
Solicitor General and indeed the Children's Minister, are looking
closely at these issues. I think that the case throws up important
issues that we need to understand and digest and must feed into
an overall understanding of when and under what circumstances
the legal aid fund should pay for an expert.
Q287 Ross Cranston: At the outset,
David, can I say that I think no-one can question your own commitment
to the area. Also I would say that my brief reading of the Matrix
report is a sort of school report which says, "Doing well
but needs to work harder." I want to raise a couple of specific
issues, and in a way it follows on Mrs Cryer's "footballers'
wives". First of all, I want to ask you about some of the
high cost cases, not in the criminal area but in the civil area,
and the extent to which concerns have been raised about some of
these public interest cases which consume enormous resources but
at the end of the day do not go anywhere. Of course, that is not
unexpected because the test used by the Legal Services Commission
is lower for public interest cases, and there is a good argument
for that. My question really is should there be different mechanisms
operating there on these high cost cases, which do consume disproportionate
resources, when you have got—and you have raised the issue
about whether in fact there are—these advice deserts? Just
assume, for the purposes of argument, that they are there, that
there are these advice deserts in basic social exclusion areas,
debt, housing, and so on. Should the Legal Services Commission
have extra mechanisms for these high cost cases?
Mr Lammy: Obviously, there has
been much debate about very high cost cases across the piece and
I welcome that. You are throwing the lens not just on the criminal
high cost cases, the 1% of cases that take up 49% of the legal
aid budget, but the civil cases as well. On the civil side, I
think you would have to unpick what these cases are about.
Q288 Ross Cranston: I do not know
whether you can tell us, but could you give us a note about the
extent to which the budget is concentrated on these high cost
cases?
Mr Lammy: Certainly I can give
you a note on that, and indeed the work that we think is going
on, but let me say this, that, of course, we took personal injury
out of scope. I think that was important. We should remember that,
in the past, most people had interaction with legal aid because
they were injured at work, or when there was some sort of personal
injury, that was their first port of call. The second area, or
lion's share, of the civil fund is the family work, and obviously
that is tremendously important in terms of public law cases, children
in care, and in terms of private law cases, contact issues and
domestic violence and other things. There is another tranche of
work which is to do with work that is exceptionally funded, where
there is either a wider public interest or an overwhelming interest
to the individual involved. Again, decisions to grant funding
in a "death in policy custody" case, or a death in a
mental institution, very, very sensitive cases in which people
are asking for legal aid because of an inquest, very, very important
areas indeed.
Q289 Ross Cranston: I am not questioning
that, but you can think of the hypothetical, footballer's wife,
public interest case, which raises interesting issues about Article
8, say, and the right to privacy, and query whether that should
be funded? We have got a supplementary note from the Legal Services
Commission and there are not enough contracts apparently for debt
in Rotherham?
Mr Lammy: We have obligations
under the Human Rights Act to fund certain types of cases, which
I think is important. There are cases which hit the headlines
but that does not mean necessarily that they are manifest or plenty,
but, at the same time, we have got to make sure, you are right,
that someone who needs important advice is getting that advice.
Also we have to work within the entirety of the legal family to
ensure that our methods, in terms of adjournments, our case practices,
do not prolong cases, stretch cases out, which end up biting on
the fund, and that work is going on as well. I think there are
a number of issues. I am happy to write back to you on the detail
of what I think is going on, on the civil side.
Q290 Ross Cranston: In particular,
whether we need to look at the mechanisms for dealing with some
of these cases. The Matrix report does suggest that, in a number
of categories, you have got increases in public law, education,
actions against the police, but funding has moved away from areas
associated more closely with social exclusion, which is completely
contrary, in a way, to the notion of the Community Legal Service.
I realise that it is not simply social exclusion, it is also protecting
fundamental rights, but there needs to be a balance here. That
is one disturbing feature that I do pick up from the Matrix report,
that there has been a proportionate move away from the social
exclusion areas like debt, welfare and housing?
Mr Lammy: Can I speak from my
own experience, as an MP representing I think the second poorest
constituency in London. I think the picture is a bit more complicated
than that. If we look at the public law area, I think it would
be hard to say that, especially given the work of the Social Exclusion
Unit on children in care, that is not a massively important area
where the fund has benefited some of the most vulnerable people
in the country. If we look at the education area, look at the
scrutiny which I think the Government has put on schools, particularly
in inner-city areas through the Excellence in Cities programme,
driving up standards, and look at parents choosing to exercise
their rights in the field, again, we can be talking about some
very vulnerable people indeed. The difficulty is always going
to be for a minister to say, "You can" or cannot "have
your case." Obviously, I have to avoid that, to a great extent,
I must leave these citizens up to the LSC. You are right, we have
to revisit scope and eligibility, and the Matrix report falls
down on one side of the fence, but personally I believe there
are complexities underpinning that.
Q291 Ross Cranston: I do not deny
that, and you have made the point about education, but one of
the headteachers in my area hit the national headlines when he
said that there is a whole range of ambulance-chasers outside
the school gates. Some of that is personal injury but in some
cases it could be bringing actions against schoolteachers because
they have not educated the children properly, and so on. I would
query whether that is a legal matter or a political matter.
Mr Lammy: Can I say that I know
there is a lot of work going on across government, the Better
Regulation Taskforce work on this business of ambulance-chasers
and the compensation culture and other things. I think all the
evidence is that actually this does not exist in practice, that
there is a distinction, I think, in a modern democracy, where
people know their rights in education and other things, between
a "have a go" culture and the end result, which is often
not success in our courts. I think that is important, that sophistication
in the discussion is something important. I say that with responsibility
for other things in the department.
Q292 Keith Vaz: Minister, I am going
to bring you back to the uncontroversial subject of asylum and
immigration. Can you tell the Committee, when did you last visit
a legal aid practice that deals exclusively with immigration work?
Mr Lammy: I last visited an immigration
practice that dealt with immigration work in my constituency a
few weeks ago. Ministerially, I sat in on an interview in a practice
in Sheffield, probably about four or five months ago. I am due
to visit one of our major law firms that has an immigration and
asylum practice tomorrow.
Q293 Keith Vaz: Excellent. The Committee
went and took evidence from a number of practitioners in Hackney,
not in Tottenham but in Hackney, a meeting set up by Hutchins
& Co. Universally, those who were present lamented the state
of legal aid as far as asylum and immigration were concerned.
Some very, very good practitioners were giving up on legal aid
because it just did not pay them. They pointed to the fact that
either nobody was going to take over this work, and therefore
large parts of that particular borough were not going to be covered,
or others would move in without the expertise that was necessary
in order to deal with these cases. During your visits you must
have picked up the real concern of the professionals. These are
people who chose to go into immigration work rather than work
for Clifford Chance, they regard it as a calling because they
are certainly not doing it for the money. Do you feel saddened
that the policies of this Government have meant that good practitioners
are being driven out of this kind of work?
Mr Lammy: I have to look across
the piece, and I have to say that I want to support and endorse
all of the work done by all our legal aid practitioners across
the board. These are people doing very, very important public
service. In terms of asylum and immigration, I have to repeat
what I said to the Committee the last time I was here. This is
one area of legal aid where at a time when there has been a three-fold
increase in the budget, from £81 million to £174 million,
there have also been MPs rightly questioning the role of some
of our asylum and immigration lawyers and I have to be realistic
about that. I am on record as saying, and I will repeat it, that
of course there are quality providers carrying out immigration
and asylum work. Many of those providers are doing that work in
the most complex and difficult of cases. I am afraid that, at
the same time, there are too many asylum and immigration lawyers
not providing the sort of standard that you would want. Also there
has been an oversupply of immigration and asylum lawyers in areas
like London. You can understand that, with dispersal and other
things, there is some pressure alleviated in London, and also
that the asylum numbers are coming down. As against that, I have
wanted to see contracts withdrawn from firms that are continually
overclaiming from the LSC. I said that last time. The contracts
round has occurred and we have seen those contract numbers fall.
Q294 Keith Vaz: What percentage of
firms, because you must have figures, you would not be making
policy decisions without empirical evidence being provided by
these expert advisers at the DCA, what percentage of solicitors
firms do you think are, as you say, indulging in abuse of the
system?
Mr Lammy: I will say two things
to that. I indicated last time that there were far too many Category
Three firms. My understanding is, but we are just at the end of
a bidding round, and from my recollection round about 97, or so,
contracts will be withdrawn. I am happy to write to you at the
end of the contract round to give you a sense of the immigration
and asylum picture in terms of providers. I cannot do that now,
we are in the midst of a round. Also, I would remind you that
two years ago the Public Accounts Committee looked at these issues
and they said to us that they were seriously concerned, with 35%
of solicitors routinely overclaiming, and the LSC had to do something
about it. When ministers say, "Do something about it,"
you do something about it and you get it in the other end, so
that is the context.
Q295 Keith Vaz: Just to put this
into context, you talked about 97 being withdrawn, I appreciate
that you might not have all the figures here and that you will
let the Committee have them, but 97 out of how many? What is the
kind of global figure we are talking about?
Mr Lammy: As I have said, I do
not want to quote numbers to you.
Q296 Keith Vaz: You have just quoted
a number, have you not?
Mr Lammy: I think I caveated the
number heavily.
Q297 Keith Vaz: You said 97. That
sounds quite specific?
Mr Lammy: Keith, come on. I caveated
the number heavily, because I said we were in the middle of a
bidding round. The Committee has been concerned about matter starts
and contracts around the country, and what is the LSC attempting
to do here? Where there is oversupply it is withdrawing contract.
I want to see contracts increase in other areas, hence the increase
in housing, hence the increase in debt and other things. It is
important to remember also that actually there are lots of providers,
in terms of legal aid, providing not just asylum and immigration
advice, one firm can be doing family advice, housing advice, asylum
and immigration advice, lawyers using fee areas in different ways.
Also there is the private work that firms will continue to do
as well. I think the picture is quite complex. I do not want to
quote figures at you in the middle or towards the end of a contract
round when I have not seen how things look. I have to be aware
also of firms that will seek to appeal decisions made by the LSC.
Q298 Keith Vaz: We do not want to
press you if you feel that you cannot tell us the global figure,
but I am glad that you are going to let us have that information.
In fact, the LSC has given us the figures. Maybe they should send
them to you, so you will be able to quote them back at us?
Mr Lammy: I suspect that they
will have given you either approximated figures or figures which
are caveated, Keith, because I have seen everything I can.
Q299 Keith Vaz: I am sure your officials
will be on to them, asking for the same figures. The expenditure
on asylum and immigration, how responsible has that been for the
increase in expenditure on civil legal aid? Obviously, it is big
percentage. Do you know what the percentage is?
Mr Lammy: It has been obviously
a considerable increase within the overall £900 million spend.
Let me give you the figures as they stand up. Excluding asylum
and immigration, the cost of civil and family legal aid has declined,
as I think the Chairman indicated at the beginning, by 5% since
1997, and that leaves about £750 million in the pot. The
asylum growth, as it were, over three years, has had an impact
on the overall civil legal aid spend. What I want to emphasise
at the same time is, if you take personal injury out of scope,
as we did, and personal injury cases now being CFAs, actually
what is left then, in terms of housing, debt, education and social
care, also has got to be factored and gives a different complexity
to that figure.
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