Examination of Witnesses (Questions 186-199)
6 JULY 2004
DAVID LAMMY
MP AND CLARE
DODGSON
Chairman: Welcome, Mr Lammy and Ms Dodgson.
I am sure you can answer all the remaining questions we have about
the Draft Criminal Defence Service Bill. We have some interests
to declare, as usual.
Ross Cranston: I am a
barrister and Recorder.
Keith Vaz: I am a non-practising barrister.
Chairman: We will get straight on, if
we may. Mr Soley.
Q186 Mr Soley: I think we are all concerned
about the rising cost of CDS, but I think what troubles us is
the way you are trying to resolve this problem. Can you tell us
what, if any, research you have done on the cause for the costs
increase?
Mr Lammy: I think that the first
thing to emphasise is that how we are trying to solve the problem
is across many fronts, Clive, of which this is one front. I would
want to break that down into short-term, medium-term and long-term,
and I have put this somewhere between the short and the medium
term. We consulted on some reductions in expenditure previously,
largely to do with the duty solicitor scheme and other things.
FLAR, our Fundamental Legal Aid Review, is in the long-term and
this is in the medium term. In terms of ensuring that we have
the evidence base to make these changes, you will know, because
I have seen the transcripts of the people that have spoken to
you, the evidence that has been put in, that in a sense means
testing is not new to us, it was not new to the old Legal Aid
Board and in a sense it is a return to means testing, but it is
a return, hopefully, an attempt, to avoid bureaucracy, which was
a problem in the past, and to put the control and the levers in
another place, and that is with the LSC. We have looked to ensure
that the rise we have seen in applications, up to 50% by December
2003, we accredit that rise very much to the deterrent effect
that the old means systems test had. There are other factors that
have affected volume in this area, certainly narrowing the justice
gap and the work that is emanating from the Home Office is one,
but that amounts to perhaps 2% of the overall volume when you
consider that the numbers of cases have only risen by 2%: 1.8
million in 1999 and 1.92 million in 2002.
Q187 Mr Soley: But you talk largely there
of consultation. What I am asking about is research: because we
have had it put to us that the main driver for the increased costs
are actually external, not within the legal people themselves.
Have you done any research on that or not?
Mr Lammy: What I am saying is
one of the drivers is external, and that has led to an increase
in the volume, but I am afraid it is too easy to say that because
we are bringing more people to justice that by definition has
led to rising expenditure on legal aid when you look at the number
of cases. It just has not gone up sufficiently to account for
that; the volume has only gone up by 2%. What has changed between
1999-2000 and now is a withdrawal of means testing and applications
rising from between 40 to 50%. That is what has changed, that
is what is manifest and that we can certainly quantify
Ms Dodgson: One piece of research
that we have commissioned is the Legal Commission's Research Centre,
working with the Institute for Fiscal Studies, are currently sampling
2,600 previous cases of statistically valid samples from different
magistrates' courts to look at—without the means test, of
course, they all got legal aid funding—to model, with the
means test in, what would the impact of that be. So that is quite
a rigorous piece of research that we will certainly let you have.
Q188 Mr Soley: When will that be completed?
Do we know, roughly?
Ms Dodgson: Roughly within the
next two to three months. I will come back with a specific date,
because I am afraid I do not know.
Q189 Mr Soley: Would it not be better
to wait until we have got the outcome of that research before
we take the rather radical course that is being proposed at the
moment?
Mr Lammy: What is radical about
it?
Q190 Mr Soley: That you are actually
assuming that the costs are not externally relevant?
Mr Lammy: Let's be clear on this.
Legal aid, set up as it was coming out of the Rushcliffe Report
in 1945 and leading to the Legal Aid Act and Advice Act in 1949,
was always based on the premise that those who could pay do pay
and those who cannot do not. We had a system that was effectively
means tested, and means testing, not just in the legal aid area
but right across policy since 1997, has been on the rise; so means
testing is not new in that sense.
Q191 Mr Soley: I am not opposed to means
testing, nor am I arguing that. What I am worried about is that
we have not got a good analysis of what is driving the cost up?
Mr Lammy: We have got a good analysis
of what is driving the cost because we know that there has been
a 50% rise, and that has happened since we moved away from means
testing and moved to a court-based Representation Order system.
That is clear.
Q192 Chairman: Has it satisfied you of
its cause and effect?
Mr Lammy: What I want to emphasise
is that this is not an either/or, and it is just too easy. This
is the third time I have been in front of you, and I am absolutely
delighted that you are seeking to scrutinise all parts of the
legal aid area. I have been here on asylum, I have been here on
the civil side and I am back here on crime. I notice you have
not seen any of my ministerial colleagues.
Q193 Ross Cranston: A sore point.
Mr Lammy: And I am happy to come
back, but on asylum you said to me "delay", despite
the fact that the bill had gone up from 81 to 174 million; on
the civil side you questioned me on advice deserts and remuneration
issues; and here we are again on the criminal side and I am being
told to delay. We have got a spend of £2 billion. It is the
highest in Europe. It compares extremely well with our other international
colleagues. I have to seek to address that spend in the short,
medium and long-term. We know, in terms of the fundamental legal
aid review, everyone is involved in that right across government,
the Bar Council, the Law Society, the LAPG and others. We know
that there are fundamental questions that we have got to get behind
on Legal Aid, and that may well tease out some of those really
difficult issues on the criminal side—for example, CCTV
evidence and the increase that that has led to. We have got a
case at the moment where all the lawyers, numbering over 10 in
number, want to look at, I think it is, 6,000 hours of video tape.
There are lots of areas in which we want to tease out how best
to construct a system for the twenty-first century, but that does
not mean we should not act in the short-term if there is a problem.
Q194 Mr Soley: Are you arguing that the
cost driver is essentially the lack of means testing, because
I am not opposed to means testing. What I am worried about is
if you have got the right costs analysis.
Mr Lammy: It would be surprising
if you were. I am confident that when I look at what is happening
in this area that the issues are effectively issues around volume,
that some of those volume increases, but a small amount when you
look at the cases going through, are certainly about narrowing
the justice gap, more people coming into justice; but what has
changed between now and a few years ago that has seen the rise
in expenditure is definitely the grant of legal aid, and I have
to say to you, if you believe in the principle of that, of the
legal aid system, that those who pay should pay, we have to ask
ourselves why it is that everybody in this room—everybody
in this room—if they were charged with a crime, would be
entitled to legal aid. Is that right? That is the question.
Ms Dodgson: On the back of that
point, what we do know and we did not know beforehand is that
people did not claim because they knew they would not pass the
means test. So we have not got an empirical bench mark for that,
but we do know that when the means test was removed the numbers
went like that. So I think, by deduction, the deterrent effect
of the means test was clearly there, and when it was removed we
have seen the rises that the Minister has referred to.
Q195 Mr Soley: Lord Irvine, when he was
before us last year, told us that it was absolutely critical that
when substantive changes were made to the law that the "downstream
consequences", I think he called it, were funded?
Ms Dodgson: Absolutely.
Q196 Mr Soley: Are you doing that?
Mr Lammy: We are doing that through
the forecasting committee and being able to forecast within the
Government those changes. We are doing that through innovations.
I think that the single asylum fund has been one, and I would
hope to see coming out of the Fundamental Legal Aid Review others,
given that we are working across government. So it is important.
All developed countries, in terms of their Criminal Justice Bill,
are grappling with this important issue, but at the same time
let's not overdo it, because if you look at the case numbers the
increase in terms of volume is only 2%. 2% can account for quite
a lot of money with a legal aid spend of two billion, but I think
the 50% rise is something that I am certainly in the short to
medium term very concerned about.
Ms Dodgson: The other point about
other government departments is we are working much more closely
with the Treasury and with the Home Office, and when we did our
spending review for 2004 we had colleagues from the Home Office
and the Treasury who worked with us on that to get a much more
joined up picture.
Q197 Mr Soley: Is the narrowing the justice
gap policy factored into the costs of CDS or not and the increase
in—
Ms Dodgson: We model all the different
trends underneath planning assumptions as best we can, and, as
the Minister has referred, we have now got a modelling to group
get even more rigorous. So the best take—
Q198 Mr Soley: You would need that to
make an assessment of overall cost?
Ms Dodgson: Yes, although there
are still pressures even having done that, but we take the savings
into account when we come to our financial bottom line.
Q199 Keith Vaz: Minister, please do not
remember the fact that you have been here three times. We like
seeing you. You have got all the best bits of the old LCD; that
is why we keep having you here to give evidence! In effect the
judges have told us in their evidence—I do not know whether
you have had the opportunity or Ms Dodgson has had the opportunity
to look at the website and the evidence of Justice Judge at page
28. They are lamenting the fact that you brought these proposals
forward at the same time as all the other things that you were
doing, and they felt that this would cause difficulties. Do you
not think it would have been sensible to have a pause and consider
the impact in the other areas, such as the Fundamental Legal Aid
Review? I know this is a thrusting department with thrusting ministers
and a reforming Lord Chancellor and you are going to change the
course of British history, but is it not worth pausing when you
are dealing with interest of justice?
Mr Lammy: Keith, it is a fair
question, but, with the greatest of respect to the Justices that
spoke to you, at the end of the day it is the ministers and the
financial officer, in terms of Clare's job, that do have to ensure
that the public is getting value for money in terms of the legal
aid spend; and that is why I said it would be extraordinary if
I just sat here and did nothing for a year because there was a
Fundamental Legal Aid Review going on. You have got to act. I
had to act on asylum, and we did that, and we will see, I think,
the results of that; I have had to act on the criminal side already
in terms of the Duty Solicitor Scheme to look at changes that
we could bring to bear there; and I have also had to act . . .
And I think it is important here also to look at the public perception
problem. I think there is a public perception problem around legal
aid. The public want to ensure that the right people are receiving
it, and we need to be able to explain to people if everyone in
this room should really be entitled to it.
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