Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witness (Questions 20-31)

22 JUNE 2004


  Q20 Mr Soley: Do I understand from what you are saying, too, that one of the things that would reduce a human rights breach would be an appeal mechanism to the court?

  Mr Smith: I think that this is a civil right and obligation and that, therefore, you are entitled to a fair and impartial determination of it. I think there is no problem about delegating the initial determination but, ultimately, it would certainly—to put it at its lowest—be safest for the Government—

  Q21 Mr Soley: That would reduce the risk?

  Mr Smith: Yes. It does not have to be a court, it could be a tribunal.

  Q22 Mr Soley: Finally, of these three options which do you think are most likely to result in a defendant who cannot afford to pay for legal representation being denied legal aid?

  Mr Smith: One.

  Q23 Mr Soley: You are suggesting that people who need legal aid are being denied it. I am asking you which of the three options are most likely to—

  Mr Smith: Number one.

  Q24 Ross Cranston: Just in fairness, in terms of conflicts, where solicitors are doing this, it may be that they would take a more generous view of the interests of justice test than someone outside might take.

  Mr Smith: Indeed, and I would hope that they would. You cannot play fast and loose with the market, it seems to me. If one prides oneself in delivering services using the market, and we are doing that in terms of contracts and all the rest of it, you have to recognise that people will operate in their economic self-interest, and that is what you are acknowledging. The implicit assumption I make from this paper is that the drafter hopes that all the problems that solicitors will encounter they will deal with by just lumping the fact that they will get paid less because they cannot provide the necessary audit trail. Way down at the back, in the partial regulatory impact assessment, I see, there is an acknowledgement that smaller practitioners might be harmed by this and might have to go out of business. If you want to make a cut of, depending on the various estimates, £60 million out of what solicitors get, that is a perfectly reasonable policy objective, but I do think it is reasonable to ask for it to be transparently done and not, certainly, to be done in a way which potentially not only takes £60 million, or whatever it is, off solicitors but also potentially will impede the rights of defendants, which is much more important.

  Q25 Ross Cranston: It is a question of priorities, of course, and you have come before us before in terms of advice deserts and so on. There are other areas of legal need. Generally, I am impressed with your analysis. The paper is not especially impressive in terms of the proposals but there are questions of priority.

  Mr Smith: If you were to say, as you might have done in your other inquiry, "There is £2 billion. How do we spend it?", and there is a problem that the demands of crime are encroaching on civil, I would say "Yes", and if you went on to say there should be measures by which we reduce the impact of crime on civil, yes, but we are here before you on these proposals. Frankly, I am under-whelmed by them.

  Q26 Ross Cranston: Can I ask you specifically about the cost to solicitors? I am not sure whether you answered this earlier, but do you think they should be paid extra to administer the test?

  Mr Smith: I think that there is a logic to that. Those who represent solicitors will make that case before you better than I. As a matter of policy, as long as it is transparent, it seems to me, the Government can take a view about what lawyers should be paid. So you can pay them less. That is a perfectly reasonable policy decision which we can then debate in terms of its impact. This will operate in a skewed way, which made me feel terribly old and crabby, because I just did not think it was good enough.

  Q27 Ross Cranston: Let us say you are animated and not crabby. If they have to make a contribution—I think you are suggesting that they make a periodic contribution—what is the problem with an upfront contribution?

  Mr Smith: There is no problem with an upfront contribution provided the person who is required to pay it can afford to do so and it is reasonable to require them to do so. If they have got capital and the rules are reasonable in relation to the calculation of capital—and I gave the example of Mr Soley having £5,010 and if the limit is £5,000 I do not see why he should not give us £10; if he has £6,000 I do not see why he should not give us £1,000. The old scheme allowed for periodical payment to the magistrates, and this was an unfortunate administrative inconvenience; you had people coming in with small amounts of money every week. However, if you have a system which depends on income and capital calculation, then some people will fail on income because they are just over the income level. What you cannot do (except if you are trying to make some sleight of hand to convince the Treasury you are doing something seriously), if you are trying to do something properly about it, is convert an income payment into a capital payment. So what do you do? If the disposable income limit is £91 under one option and you have got income of £101 per week, which is going to be quite likely, because this is just above Job Seeker's Allowance levels so you are dealing with significant numbers of people just over the limit, what are you going to do if they are to pay £2,000? The only way you can deal with it is by deferring the initial one-off payment, although the example in the paper where it says deferral might be allowed only relates to capital and not income, as if the drafter did not envisage income being deferred in that way. Others behind me who will give evidence later will talk better about what the position was before, but quite understandably defendants are more likely to pay up before their case has been determined than afterwards, which is also why the drafter wants payments up front. It is an absurd situation where somebody might take four years to pay an income contribution for a case which might be over in nine months, now that the courts have speeded up.

  Q28 Ross Cranston: Currently there are difficulties, are there not, with periodic payments?

  Mr Smith: Yes, and that is no doubt why the drafter thinks it is a bit unfair to have solicitors dealing with people popping up with £5 notes every week, but you cannot cut corners beyond a certain point. This is really just shoddy policy making.

  Q29 Ross Cranston: You comment that in the crown court cases they should be subject to a retrospective order as to costs.

  Mr Smith: Yes.

  Q30 Ross Cranston: Why the difference between crown court and magistrates?

  Mr Smith: I prefer retrospective orders in costs, in general, I think. The problem with the crown court is the potential costs are so enormous that if you have got payment up front and are then paying it back you have got money circulating around, and quite large amounts.

  Q31 Ross Cranston: So it is simply the size of the sum?

  Mr Smith: I think that is right.

  Chairman: I think we have probably covered all the points we wanted to cover with you, in addition to the very helpful submission you gave us. Thank you for bringing what some might think of as a dull subject to life in such a helpful way. While we change the witnesses on the witness desk can I give Mr Clappison the opportunity to declare an interest?

  Mr Clappison: Yes, as a member of the Bar, non-practising.

  Chairman: Thank you very much indeed.

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