Examination of Witness (Questions 1-19)
22 JUNE 2004
ROGER SMITH
Chairman: Welcome to the first stage
of our inquiry into the Government's Draft Criminal Defence Service
Bill. Are there any interests to be declared on our side of the
table before we start?
Ross Cranston: Yes, I
am a barrister and recorder.
Mrs Cryer: Is it relevant to mention
I am on the supplementary list of Bradford magistrates?
Q1 Chairman: Do you think the Government
has learnt much from the difficulties which the old means testing
regime had?
Mr Smith: There is no indication
of it.
Q2 Chairman: You commented in your evidence
that the Department's paper understates the problems that arose
under the old arrangements.
Mr Smith: Yes. I have to say I
did not find the consultation document terribly impressive, either
in its substance—which we will come to in a minute—nor
in its spelling and grammar, where I saw various flagrant errors—
Q3 Chairman: That is an increasing problem
in government.
Mr Smith: There were full stops
in the middle of sentences; misspellings—I thought it was
an indication that the whole thing had been rushed out. I thought,
when it came to the substance, which is more important, that that
was right. Do you want me to launch into a short summary of our
position?
Q4 Chairman: Particularly, the problems
that arose under the old arrangements that they ought to be bearing
in mind now—the past experience of means testing.
Mr Smith: We know from the old
arrangements that the implementation of the scheme as it was then,
which was much more structured than this one, caused sufficient
difficulty for the Department's accounts to be queried year after
year and for its Permanent Secretary to get a celebrated roasting
in front of, I think, the Public Accounts Committee. These arrangements
are potentially going to cause even more problems because they
are an attempt to come up with a simplified scheme which is easy
to operate, and the problem in doing that is that some of the
many difficulties have been skirted over, and they will emerge
in practice. This will cause even more problems than under the
old scheme. The major issue under the old scheme, I think, was
that there was a lack of an audit trail and documentation. This
will cause problems of calculation and uncertainty.
Q5 Chairman: Is that the necessary consequence
of delegating to solicitors the task of administering it, or could
they not ensure that there was a proper audit trail? Is the Government
over-confident about how solicitors would do this?
Mr Smith: No. The fundamental
transfer of responsibility is to the Legal Services Commission,
which then passes it on to solicitors. I do not think there is
any problem with that as a principle, and the Tory Government,
under Lord Mackay, was going to do exactly that and said so in
1996. That was always the long-term plan. The structure of that
is fine, and has always been envisaged; the problem comes with
how solicitors will administer the scheme. The solicitors will
be vocal in their own interests when they come to give evidence
before you about how difficult it will be for them to administer,
but my concern, particularly, here, from Justice's point of view,
is with the defendants and what difficulties it will cause them.
I think they will be enormous. What Lord Mackay, to his enormous
credit, proposed was that this transfer of responsibility would
be done within a structure where there would be a trail of appeal
that ended with an independent appeal body of some kind, and with
a failsafe power to the courts to grant legal aid. Those parts
of his original scheme have been taken out of this Government's
proposals, and I would very much hope that you would support their
reintroduction because they are necessary to provide some safeguard
for defendants against miscalculation and mistake. Legal aid is
a human right under Article 6, and it must be properly given by
the state. It seems to me that you are entitled to a fair determination
of whether you have such an entitlement, and that that should
be, ultimately, by an independent body. We know, as a matter of
practice, that if you do not have an appeals structure to an independent
body you get slipshod decision-making. So there are issues we
will go to in a minute, but this whole attempt to set up a structure
delegating it to solicitors and just leaving it to them to deal
with is not satisfactory; it has to be done within a framework
where there are some objective measures which assist the defendant
who is in dispute with the solicitor.
Q6 Chairman: Is there a conflict of interest
between the participants here—particularly the solicitor
and the defendant—or are their interests close enough for
it not to be a problem?
Mr Smith: There are elements which
make me uneasy, in the sense that you are dealing here with the
market, and, of course, the glory of the market is that people
operate in an economic interest, in ways that you do not always
identify beforehand. So it might well be that there is a category
of cases which solicitors find inconvenient under this scheme
and which they would rather have nothing to do with. What you
would want, if you were a solicitor under this scheme, is large
numbers of people on Job Seeker's Allowance. What you do not want
is a Greek-speaking person, who has a cash job with a car breaker's,
an extended family all living at home and a somewhat indeterminate
amount of capital which is largely stashed at the local bookies
as credit, or something like that. You just do not want the complicated
cases. Solicitors would be operating in their economic interests
according to market forces if they then rationalised—if
they had any choice—which cases they took. So I think there
are some difficulties there. Again, it seems to me you can do
it, it is acceptable, but it is a reasonable potential conflict
of interest. The Commission has a potential conflict of interest
as well because it will want to control funds. Provided you have
an objective appeals process on the outside—which frankly
I would make to a court, to local magistrates, ultimately, as
the ultimate appeal—as long as you have got an outside person
or body checking it you can deal, it seems to me, structurally
with that.
Q7 Chairman: So there are two kinds of
checks? There is a check for proper use of public funds, the audit
trail and all that?
Mr Smith: Yes.
Q8 Chairman: And under your proposal
there is a court check on whether people have been wrongly turned
down by solicitors?
Mr Smith: Yes. What has not been
properly taken on board in this structure, which was by Lord Mackay
and was under the old arrangements, was that defendants and suspects
may suffer.
Q9 Peter Bottomley: There is no obligation
on a solicitor to take on a client or to keep them even if they
are having discussions about representing the client. Is that
right?
Mr Smith: Certainly not in principle.
That would depend on the contractual terms on a solicitor which
might be imposed by the Legal Services Commission, as a condition
of their receiving money.
Q10 Peter Bottomley: So a solicitor might
be required to take on a client that they do not want to represent?
Mr Smith: It would be possible
to draft a contract in that sort of way.
Q11 Peter Bottomley: Then, if they fall
out over the money, still have to keep the client?
Mr Smith: Yes.
Q12 Chairman: Of the three proposed means
test, do you prefer the second one?
Mr Smith: Answering your question
as it has been put to me, and seeing the glint in your eye, I
can answer, simply, yes. Of course, there are problems with all
of them. It seems to me that those drafting this paper have, classically,
put in three options and two of them at least do not fly, so the
only serious one is the second one. The second one is full of
problems, if you start picking it apart, because although the
income test is in relation to the individual concerned, the capital
test is a household capital test. So a solicitor will be required
(a) to define who is a member of the household of the defendant
and (b) what is their capital. Clearly, the drafters have not
had in mind the extended family; a situation where, maybe, it
is the grandson who is on trial but the grandparents who have
got the money—the grandparents have just retired and they
have £26,000—and the grandson has not got anything
but he is above Job Seeker's Allowance. It is not a logical test.
A person who stands before a court as a defendant stands alone
(certainly an adult does) and their parents and background is
somewhere in the background. So you have, it seems to me, to have
individual tests of capital and income, and once you ask solicitors
to decide the rules on a household you get into problems. If I
can just point out: oddly, the paper goes into detail about who
a "partner" is. That has clearly concerned the drafter
of the paper more than what disposable income is; it shows no
concern as to what disposable income is but goes into detail which
is completely incomprehensible about what a partner is. A partner
is someone with whom you are living, including someone with whom
you are not currently living but are living separate and apart.
The drafter—and he has put a full-stop within a bracket—has
gone to some trouble and is clearly exercised by this issue of
what a partner is, but it is incoherent.
Q13 Chairman: Is it because of a fear
of the applicant offloading substantial resources to a partner
and, thereby, becoming eligible?
Mr Smith: That would be a very
reasonable one, in which case they could follow definitions of
partners which are used elsewhere in the social security field.
This is incoherent. I do not understand what is different. Can
you live separate but not apart? You can see what they are kind
of after—if you are living with your partner and they are
currently living in Scarborough and you are in Leeds, for example—but
there are other ways of expressing this which are more coherent.
If you are asking a solicitor to decide on who is a partner—and
this is crucial to a household capital test, of course—this
is not academic stuff, and the drafter has specifically addressed
this, it is bonkers.
Q14 Mr Soley: Just on that before I move
on, you make the point that the partners could be based on the
social security legislation, which I think is right, but the same
would apply to households. There is no problem with social security
on Housing Benefit, for example, in deciding who the household
is.
Mr Smith: There is a whole set
of rules. It is a long time since I have done those benefits but
I was once an expert. There is a whole set of rules and a whole
set of cases about—
Q15 Mr Soley: Including grandparents
living down the road.
Mr Smith: No, the grandparents
living down the road would not be in it, it is grandparents living
in the house that are part of a household.
Q16 Mr Soley: That would be taken into
account on Housing Benefit and in a number of other instances.
Mr Smith: Absolutely. Co-habitation
is an old chestnut which causes a problem to any benefit scheme
which goes beyond a married couple. That will be at the heart
of any problem with the household test that you will also get
with grandparents. You will get problems with whose house it is.
A young man could, basically, be moving around between friends
but has all his stuff back at home with his grandparents or his
parents, or an uncle.
Q17 Mr Soley: My point is, simply, that
they make those judgments already in social security.
Mr Smith: Yes, and what you have
in social security, and what the Labour Government introduced
in relation to Housing Benefit, was an objective appeals system,
so you had complicated rules with histories of precedent which
are contained within a proper determination mechanism, and this
is quick and dirty and different.
Q18 Mr Soley: Do I take it, from what
you have said so far, that you think this could result in us being
in breach of our human rights legislation?
Mr Smith: There is a danger, a
totally unnecessary danger, because of this, yes.
Q19 Mr Soley: Of the three options the
Government is putting forward you are suggesting that number two
would be the most rational and, therefore, the least likely to
bring us into conflict?
Mr Smith: Of the three options
put forward, the best one is number two, but it is fraught with
problems. It has issues about "household", and with
all the tests—because it is an attempt to put in a simplified
test, to use an unpejorative description—there is an attempt
to blur the difference between capital and income payments. If
you have got £5,010 and you owe me £10 it is reasonable
for you to pay up now, but you could be liable to pay £2,000
under most of these options (and under one, third, option more)
because you are £10 a week above an income level. It is going
to take you 200 weeks, or four years, to pay this thing.
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