Examination of Witnesses (Questions 161-179)
29 JUNE 2004
STEPHEN IRWIN
QC AND ANDREW
HALL QC
Mr Soley: Good morning. Thank you very
much for your attendance here this morning.
Q161 Keith Vaz: Mr Hall, Mr Irwin, how,
if at all, do you envisage that these proposals will impact upon
the Bar?
Mr Irwin: It is difficult to predict
until you know exactly what form of means testing comes along.
I do not think they will have a particular differential effect
on the Bar. If the interest of justice test is applied rigorously
by whomever, it is likely to knock out cases at the bottom end
of the range of seriousness rather than the top and so that probably
will not affect the Bar very much. If on the other hand we get
a position where solicitors are operating a means test and are
taking the hit if contributions are not made—so that you
have a series of failures because of the means test—then
that obviously would affect the Bar. It might mean that the Bar
has to drop out of cases or people have to act free. I do not
think there is a particular differential effect on the Bar of
the means testing provisions other than that.
Q162 Keith Vaz: Do you agree with that,
Mr Hall?
Mr Hall: Yes, I do. I think if
the proposal that advocates are penalised if contributions are
not paid is to put into effect then it is going to be extraordinarily
difficult to find any advocates to appear in those circumstances,
because, as we indicated in our short paper, it is one thing to
apply that sort of provision if you have some mechanism for controlling
what the client does and how the process operates, but if you
have no mechanism, if you are just the person asked overnight
to go and represent someone in a back of a beyond magistrates'
court, it is wholly unreasonable and quite wrong to impose a financial
effect by virtue of someone else's default, and I think the junior
Bar would run away furiously from taking the risk in those cases.
Q163 Keith Vaz: The means test currently
proposed would, in some circumstances, apply in the Crown Court
as well as the magistrates' court. Should the proposal to reintroduce
the means testing be restricted to legal representation in the
magistrates' court only? If so, why?
Mr Hall: I think the basic principle
the Bar supports is that those who can afford to pay should pay.
There seems to be a reasonably effective mechanism in the crown
court for the more serious cases for financial orders to be made
at the conclusion of the proceedings. It is much more difficult
in the magistrates' court where the volume is much greater and
just the mechanics of requiring evicted people to pay contributions
towards costs is much more complicated. My view, instinctively,
is that it is better in the lower courts, with the greater volume
of cases, to have the payment, as it were, in front rather than
following on behind, whereas one can have a follow-on-behind system
in the crown court with the larger cases. It seems to work reasonably
well and I am inclined to approach these things on the basis that
if it is working reasonably well one ought not to interfere with
it.
Mr Irwin: Could I respond by making
a slightly different point, which is that it would be rational,
if introducing a means test, to have a bottom-end cut off. It
is not really our business, but there is not much point spending
quite a lot of money investigating means in a case where the actual
quantum of fees is very small. I think somebody ought to draw
a guideline at the bottom end to say, "Below this anticipated
cost, we will not bother with the means testing system because
on average you will spend more money on the process than you would
get back in the contributions." I think that makes commonsense.
Q164 Peter Bottomley: Therefore not charge.
Mr Irwin: Therefore not charge—well,
not attempt to get means testing or contribution or whatever because
it is pointless.
Q165 Ross Cranston: I was going to ask
you about the effect on courts of the increasing number of unrepresented
defendants, but in fact we got your submission this morning and
you address that point, that often you are creating more costs
by not having representation in terms of the way the court operates.
I do not know if you want to say any more about that.
Mr Irwin: Just to emphasise it.
We have seen it again and again in the public funding of legal
aid that you only look at this little segment of the budget. Before
we make any changes we should be looking at Group 4, the prisons,
the Home Office, the probation service, the cost of adjournments—all
of it together. I think that if you do the accounting exercise
you will find that representation pays for itself far more often
than you think, but you have to get beyond the legal aid budget
to see that usually. Only the Treasury can do that job.
Q166 Ross Cranston: Our acting Chairman
asked some of the previous witnesses about the Human Rights Act
possibilities. I do not know if you have any thoughts on that,
whether you see these proposals as being subject to challenges.
Mr Hall: I think one can see the
areas in which challenges are likely to arise. For example, in
multi-handed cases, if three defendants go to one solicitor who
awards legal aid and another three go to another who does not
consider that the test is passed, you have inconsistency in the
award, and if there is any cut-throating in that case people are
going to raise the level playing field issue and say that they
are not being given a fair hearing. It is one thing for a court
to be seized of this essentially judicial task of deciding what
is in the interests of justice; it is quite another thing to delegate
that responsibility either to an executive agency, which might
apply the tests with financial considerations driving that decision,
or to groups of independent practitioners who may be influenced
by all sorts of considerations, not least commercial considerations.
Q167 Ross Cranston: I think I accept
the argument but I am not sure I go as far as you do in your written
submission to say it is a constitutional point. It is a Legal
Services Commission point. I certainly accept the thrust of what
you say. Somebody else is going to ask you about the drivers of
high cost case, but you mention in your written submission the
Effective Trial Management Project process and you say that you
hope that will address some of the issues. It really follows on
from the point I put to the Law Society and the solicitors about
the proposals coming from judges about greater case management
and whether that can have any effect on cost.
Mr Hall: We think it is a complicated
issue. We believe that some of the major drivers are those which
are affecting trial length in the more complicated cases.
Q168 Ross Cranston: Could I ask you about
the case management side. Do you think that that can have a significant
effect on reducing cost?
Mr Hall: It has to be considered.
Some of the cost increase may be lawyer-driven, some may be process-driven
and we are concerned to look at every possibility for reducing
cost including tighter control of cases by the judges.
Mr Irwin: You know we have initiated
this process with the bench. The results have not yet been published
but in due course will be, I hope—a whole series of proposals
on Chatham House rules to see what will really work. Because we
have a common interest: the one thing everybody wants to do is
to reduce trial length if possible because we will get paid more
realistically if we can shorten the trials. It is a tool but I
think all those who were engaged in the process emphasised it
is far from being a single magic bullet. Trial management can
sometimes go wrong, it can sometimes create problems but mostly
it will help.
Q169 Ross Cranston: I think it would
be quite useful if we could be kept informed about the process.
Mr Irwin: Yes.
Q170 Mr Soley: Before we move on, may
I ask Mr Hall, if, to minimise the dangers of a Human Rights'
challenge, you would presumably accept that an appeal to either
a court or a tribunal would reduce that danger.
Mr Hall: Yes, I do.
Q171 Mr Clappison: You mentioned one
or two things about what you see as the drivers of cost. We have
heard evidence from the Law Society and solicitors earlier on
how they see things from their perspective. I notice that in fact
you are a former solicitor yourself as well. Do you have anything
further to add to what you see as the position you are in today,
as to what are the significant drivers of cost?
Mr Hall: No. We entirely agree
with the submissions which were made earlier by the Law Society.
We only add this: there is much talk about the top 1% of cases,
the top 1,000 cases, absorbing half the budget. If you take the
top 1% and then slice that 1% up, you will find that the top half
dozen cases—the top half dozen—account for about 25%
of the criminal legal aid budget. That is where the concern ought
to be directed. Those cases which are now visible in the Legal
Services Commission data which we have now seen, do reinforce
the sort of points which were made earlier about half a dozen
or 10 major frauds or cases of that sort completely distorting
the funding picture for any one year. In terms of long-term control
over finances, you can work on a number of fronts to drive down
costs, but you only need to get a couple more cases prosecuted
in anyone year and there is no way of telling whether you have
succeeded because the global costs will simply go up, the unit
cost will go through the roof, and we will all think that we have
failed dramatically, and it will simply have been a charging decision,
completely out of our control.
Mr Irwin: It is 0.01% of the cases
equals 25% of the cost in the crown court.
Q172 Peter Bottomley: 0.01%? One in one
thousand?
Mr Irwin: No, one in 10,000.
Mr Hall: One in 100,000.
Q173 Mr Clappison: We are talking about
the budget for crown court legal aid there?
Mr Irwin: Yes.
Q174 Mr Clappison: Looking at it globally,
the legal aid budget as a whole but excluding asylum, the figures
we have been supplied with suggest that the top 1% of criminal
cases account for 16% of the total legal aid budget. That is the
whole of the legal aid system except for asylum. That is also
a growing figure. In the last two years, there has been a growth
of £18 million and it is a growing proportion within the
overall total.
Mr Irwin: Two or three things
on that. You have to be careful with these figures all the time.
I have seen the Law Society's table—I do not know whether
that is what you are looking at—where the proportion of
the top crown court cases is shown as rising from 50.6% to 57.4%
of the crown court budget, but all these figures leave out the
fact that civil proceedings have diminished within legal aid.
If you treat it as a proportion, it is not only a growth in crime
and a growth in top crime, all personal injury has come out over
the same period, clinical negligence has diminished greatly because
of the rationalisation and narrowing, so the proportions do not
always tell you very much.
The absolute growth also does not tell
you as easily what you might want to know because during the relevant
period we have gone from entirely ex post facto payment,
payment after the event, to a position where some of these big
cases have been paid before they begin. So you are having a cashflow
clump come into it, the older cases paid two years late and the
newer cases paid before they begin or as you go along, so even
in terms of the raw growth it is probably overstated. However,
we all agree the underlying pattern which is that cases have got
longer because of the Human Rights Act, the PII applications,
disclosure, all sorts of causes like that, and we suggest, all
of us, that that is the sensible explanation and changing patterns.
But until somebody actually does the proper measure and gets beneath
the skin of this, we will not know properly where it lies.
Q175 Mr Clappison: The figures I was
quoting to you were for the year 2001-02 to the year 2003-04 and,
as I said, it was for the whole of the legal aid budget which
showed a growth of £80 million. I have not got the figures
going back any earlier than that to see if there was any distortion
caused by the time in which payments were made, but perhaps that
could be obtained for the Committee. Could I ask you about one
other factor which I have to ask you about and which you did not
mention in that list of factors which may explain the increase
in the cost of the top 100%. What about the fees which are paid
to QCs?
Mr Irwin: Everybody focuses on
this because of front pages and headlines. There is no evidence
that the fees paid to barristers, including QCs, has risen in
real terms over that time. Until the cost drivers are stripped
out, I do not accept that. For most of that time you had exactly
the same discipline, the level of fees paid to barristers in these
big cases with increasing discipline as the contracting regime
has bitten in. Even if there has been some growth in those fees,
it is a matter of history now because as of last week we are into,
as you probably know, the extension of graduated fees up to 40
days, we are into contracting for all of the biggest cases, including
the top 0.01%, whatever that is, one in 10,000 or one in whatever,
so if that factor is there, and it is unproven, it will not be
there for the future because we have got control of that.
Q176 Mr Soley: When you used the term
"front page", you recognise in effect that there is
public concern, even if some of it is exaggerated in some of the
newspapers. Do you feel that it is wholly unfair, wholly unreasonable?
Mr Irwin: Mr Soley, if I am not
fed up with our own stereotype by now, I certainly will be by
the end of this year. It is a stereotype.
Q177 Mr Soley: But some stereotypes are
based on some realities.
Mr Irwin: Yes, and many are not.
In this instance I do not know until I see all the figures whether
there are some people who have earned more than anybody would
expect, but I do know that when I have in the past seen lists
of the 10 top earners, if you strip away what those 10 top people
in the country in a year have earned, you find that they have
got two or three years' income clumped into one year. You have
to remember that these figures are the turnover of a business,
not the income of a person, and in the end when you break it down,
I have not yet found a situation where somebody in the criminal
field is earning more than you would expect a top medical consultant
to earn or a permanent secretary or whatever; you are in that
sort of same group.
Mr Hall: We have been through
this exercise in the Fundamental Legal Aid Review where the whole
comparative exercise with other people in the public funding sector,
particularly hospital consultants, has been gone through in minute
detail and where we have gone through that exercise, including
in that venue, the figures for criminal barristers and other publicly
funded barristers at a senior level come out at broadly the same
as a medical consultant in the National Health Service. We do
not think that is an unreasonable position. Of course if you ignore
the overheads of barristers, if you leave the VAT in and you choose
those barristers who for one reason or another have got two or
three years' turnover received in one year because government
pay is so slow, then you can make those silly "Fat Cat"
headlines that we earn in the Bar quite so much and mislead the
public.
Q178 Keith Vaz: Are you saying that QCs
are not paid enough?
Mr Irwin: No, I am not saying
that at all. I am defending the QCs, because it is always the
QCs who get the attack, against this stereotype that they are
fat cats. I have got a collection of cartoons at home which relate
QCs to fat cats time and time again.
Q179 Keith Vaz: But you know a lot of
QCs and there are no fat cats?
Mr Irwin: There are some fat cats,
those in the private Bar, but they are not paid by you. If you
break down even the top 10 earners in criminal and civil from
public funds, you can explain why and I am not embarrassed by
what they receive in the end. Three years ago the DCA, the LCD
as it was, decided that they wanted to compare the top-earning
silks with judges on the basis that the silks in front of the
judges were paid far more but by the time they analysed the figures
they had removed the comparison from the paper which they were
making because the judges' package was better than what the silks
were getting.
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