Examination of Witnesses (Questions 200-219)
6 JULY 2004
DAVID LAMMY
MP AND CLARE
DODGSON
Q200 Keith Vaz: You have explained it
very well, but do you think the problem is the Government is simply
not getting its message across to the public? Clearly you have
to go over the heads of the profession, because to some extent
they have an interest in these matters. I am not saying there
is abuse, but the fact is they do have an interest, but the judiciary
does not have a financial or commercial interest in these proposals
and they have said to you quite clearly that they are concerned
with what you are doing?
Mr Lammy: I think the judiciary
in this area have an important role to play. In the consultation
document itself, if you look across the three models, two of them
will continue the RDCOs. We have recently come forward with proposals
to tighten up the RDCOs. I think they were tightened up on—
Ms Dodgson: 17 May.
Mr Lammy: —17 May to ensure
that judges are indeed always considering whether it is appropriate
to recover those costs; but it is probably right to say that when
we look across the piece judges have been more willing than not
to find merits in a case, to find that the case might be imprisonable
and therefore to award legal aid.
Q201 Keith Vaz: So they are being over-generous,
interpreting the problem?
Mr Lammy: One of the reasons .
. . I think that there have been issues there, and clearly I want
to see better control. I want to examine and think clearly about
who is best placed, given the financial pressures we have, to
deal with this area, and that must be the Legal Services Commission.
Four years ago when we were looking at this and we decided to
move away from means testing, we were really looking at the old
Legal Aid Board—you and other colleagues. There were different
issues there, I think, to play with. One of those issues was bureaucracy
and delay. That is what people were complaining about. Down the
line, that story has changed somewhat, and I think we should put
the responsibility with the accounting officer, not with the judges,
who after all, if you like, have not got the fixed budget in front
of their eyes.
Q202 Keith Vaz: We understand that, but
in answer to a question, question 59, put by the Chairman to Lord
Justice Judge, talking about the timing of the proposals—this
is one of the criticisms of this Government since June of last
year, it is the surprise, the way in which things are timed, not
necessarily the merits of what is being proposed but the way in
which those proposals have been brought forward and the speed
with which they are being done, it mirrors the problem concerning
the abolition of the Lord Chancellor's Office and the way in which
those reforms are occurring. The Chairman asks Lord Justice Judge
what his concerns are and he comes up with three points. He says,
"There is a Fundamental Legal Aid Review, there is going
to be a Unified Courts Administration System from next April and,
more importantly than all these, there is a desire to reform the
system of criminal justice and not the substantive law."
He does not disagree with what is being proposed; it is the way
in which it is being done, which is one of the great criticisms
of the current administration, not the substance?
Mr Lammy: Let us take his points
on the nose, as it were. I think it is on the nose. Is that the
expression?
Q203 Keith Vaz: On the wick!
Ms Dodgson: On the chin.
Mr Lammy: On the chin. The first
is how was it announced? It was announced in the Queen's Speech,
and I think it would be hard to suggest that that was not an appropriate
way of announcing the Government's intent to move in terms of
a change of policy. So that is how it was announced.
Q204 Peter Bottomley: Was the admission
also announced in the Queen's Speech?
Mr Lammy: We are consulting on
the detail of how that works, but I think we announced . . . I
have not got the Queen's Speech in front of me, but we announced
our intent—
Q205 Keith Vaz: He is teasing you.
Mr Lammy: —in terms of parliamentary
procedure, Peter. I sometimes cannot tell when Peter is teasing
and when he is being serious. FLAR is obviously important. We
are looking at that over the course of some nine months. There
is big detail involved in that. That is a across government. That
is with all of our stakeholders. I think what is very important
in terms of the contribution that particularly this Committee
can make is that, of course, it is harder to engage with consumers
in terms of legal aid and it is important that we as MPs represent
their interests very importantly within that. Yes, of course we
have got the Unified Court Administration, but we are not presenting
these models as a be all and end all; we are saying that there
is flexibility within these models. What works; how will it work;
what is the process? That is precisely why we are consulting.
Q206 Keith Vaz: Are you prepared to listen
to alternative suggestions that have been put forward?
Mr Lammy: Absolutely.
Ms Dodgson: Definitely.
Q207 Keith Vaz: If these proposals were
implemented how would the Government and Parliament be able to
monitor the impact on the CDS budget?
Mr Lammy: I think in the usual
way, but we have got to see the detail of what comes forward,
clearly. The whole point of consulting is that there is a range
of models, some far more detailed than others, some that would
save more money than others, and until you have got an idea of
what will go forward it is hard to answer that question.
Ms Dodgson: One thing I could
say, though, is that if we do move to the Commission running this
we will have more much more consistent and comprehensive management
information. At the minute we have got a fragmented system which
is operating inconsistently. We would be able to have a grip on
the management information and, very quickly, almost live time,
we will be saying, "Hang on a minute, there is a variation
here that is inexplicable. Let's go in and understand what is
happening here." So I firmly believe and am confident that
whatever model were chosen or a variation on the three, we would
have much better performance management data to account for what
is happening.
Q208 Keith Vaz: But it would be difficult
to work out whether this is attributable to these proposals, because
there are so many other reforms that are going on?
Ms Dodgson: No, I think I was
making a slightly different point. I was saying if we had the
accountability and the decision-making provision—
Q209 Keith Vaz: I understand that point?
Ms Dodgson: —we would have
a better suite of management information that would tell us what
was happening on the front-line.
Q210 Keith Vaz: Clearly management information
is absolutely vital to yourself and to all of us?
Ms Dodgson: Yes.
Q211 Keith Vaz: But how would you know
whether any reductions were due to these proposals, because there
are so many other proposals and reviews going on to these particular
proposals?
Ms Dodgson: I take the complexity
point, and when you are running a big operational organisation,
which myself and my senior colleagues are, it would be very nice
to have black and white certainty about everything; the reality
of it is that we are dealing with a complex and constantly moving
environment and, as the Minister said earlier on, we have got
pressures on lots of different fronts. So being able to stand
back and do a two-year piece of independent research on which
to build our assumptions is not an option, but what we are doing,
as we mentioned earlier on, is getting much tighter and much more
rigorous about the modelling that we are doing. I mentioned research
earlier on. We have got our research unit in the Legal Services
Commission which recently published a very substantive report
about clustering of problems and this point about social deprivation.
A final point, I think, Mr Vaz. You were asking about getting
the message across about legal aid. I think we could point, not
for this Committee now, but to a lot of work we have done to promote
legal aid as a vehicle for tackling social exclusion.
Q212 Keith Vaz: The problem is the tabloid
press will pick on that one case where legal aid has been granted
and blow it up out of all proportion; and the same thing will
happen to these proposals. There is just that one case that suddenly
dominates the headlines and everyone is wandering around like
headless chickens.
Ms Dodgson: I think there are
positive messages that we can put out. I went to visit a project,
the Deerbolt Young Offenders Institution, last week or the week
before, and it was a collaboration between the Prison Service,
the Citizen's Advice Bureau and the Community Legal Service, and
it was helping young offenders get themselves back on their feet
and get their lives back together. As Lord Filkin very powerfully
said when he spoke, he said, "If a young man comes out of
here he has a home to go to, he has a family intact, he has got
his benefits sorted out and the prospects of a job, then the impact
on re-offending"—it is being evaluated, of course,
which is the point that was being made earlier on, but I thought
that was a tremendous project, and I'm sure that was just because
I happened to be there, but there will be others like it; and
there was a good story in that for the media, and they did get
some very positive press and my regional director did radio interviews,
and so on.
Q213 Keith Vaz: Very good. One final
question to the Minister. Would these proposals have any impact
on the Public Defender Scheme?
Mr Lammy: The Public Defender
Scheme is essentially a separate pilot. Obviously we are closely
looking at that. I was up in Swansea a few months back talking
to some of the lawyers that are involved in that scheme. Clearly,
whether private suppliers or public defenders, we would expect
them to apply any new means testing proposals that we came up
with, but I do not think per se in terms of that particular
pilot and the Government examining it. Indeed, I am quite sure
that the Fundamental Legal Aid Review will be intent to see what
comes out of those pilots, I am not sure that particularly has
a bearing on these particular set of proposals.
Q214 Ross Cranston: I want to ask you
a few questions about the proposed transfer to solicitors of the
administration. Lord Justice Judge said to us, "Look, are
not the courts more appropriate to administer a test like the
interests of justice test?" That is the sort of test which
naturally judges are used to applying, so is it not better for
them to do it rather than solicitors?
Mr Lammy: It is an argument, but
what I would say is that you will be aware, Ross, that the Legal
Services Commission is applying the interests of justice test
already on the civil side in some really quite important cases,
whether that is domestic violence, family matters, asylum matters,
that is going on now.
Q215 Ross Cranston: Is the choice between
the courts and individual solicitors?
Mr Lammy: It is not actually,
because, let's face it, most of the decisions that are being made
within the courts are not being made by judges themselves; they
are being made by administrative staff.
Ms Dodgson: With legal supervision,
and that is precisely what we would have, and we and the Legal
Services Commission, as you know, employ a number of expert lawyers,
and, if people had queries, either the solicitors making the decision,
the solicitors would get the relatively straight forward decisions
to make, the Commission would retain the more complex ones and
the admin staff who would be dealing with that would have reference
to expert advice.
Q216 Ross Cranston: I take that point.
We were a bit confused last time round because there seemed to
be a contradiction between that proposal which you, Clare, have
just mentioned, which is the Legal Services Commission proposal,
and what is in the consultation document, because that is not
in the consultation document, that notion that you have just put
forward now?
Ms Dodgson: I believe it is. If
I have articulated it badly, then—
Mr Lammy: I saw some confusion,
when I read the transcript last, about, if you like, serious cases
in terms of the interests of justice cases: murder cases, rape
cases, cases where there had been a riot. Ironically, despite
the fact that the public would see those as extremely serious
cases, those are the very cases that are easy to administer because
it is fairly clear that interests of justice test is met, that
those are imprisonable offences, and then to go on to the means
question. So that is fairly straight forward for a solicitor.
There are, however, more difficult cases, shop-lifting might be
one that might lead to a custodial sentence, or, indeed, may not,
and, in those circumstances, the solicitor would be able to move
those up to the LSC.
Q217 Ross Cranston: Let us come back
to that in a moment, but before I lose the point about transferring
cases from the courts, and I take the point that these are not
decisions always made by judges—
Mr Lammy: They will be if there
is a dispute, but by and large they are not.
Q218 Ross Cranston: No, I accept that
point, but there is an inconsistency here, is there not, in terms
of what you are doing on asylum, because I understand if an amendment
has been put down, in the House of Lords on 4 May, by the Lord
Chancellor. You are transferring some decisions back to judges
with asylum, and he said that this will provide the judiciary
with the power to order that legal aid is paid in these proceedings,
targeting meritorious cases. In a way it is a debating point,
but there is a bit of an inconsistency with what you are doing
there and what you are doing here?
Mr Lammy: From my recollection,
and this comes back to the Commons hopefully next week and I think
it is being considered as we speak in another place, there is
no inconsistency between what we are proposing on asylum and what
we are proposing here. In fact, part of what we are proposing
on asylum is, indeed, responsibility in terms of legal aid, very,
very definitely with the lawyer in terms of no win no fee. So
I think it probably depends how you cut it. I think the fundamental
decision here is that this has already been done by the LSC on
the civil side in very serious cases that I want to have a line
of accountability management and operational accountability that
is very easily done through the Legal Services Commission. We
have got a body that can do this work. Clearly the courts—it
is harder to get behind a judicial decision—it would be
inappropriate in some senses to get behind a judicial decision—and
so the question is where does this best lie? I think in 2004 it
most definitely must lie with the accounting body, and that is
the LSC.
Q219 Ross Cranston: I do not deny the
civil side—I think that is a good argument—but in
some cases I think it is going to be easier for a court to say,
"No", in some circumstances: because on the criminal
side you are dealing with human rights, you are dealing with the
Convention and compliance with Article 6, you take the case where—
Mr Lammy: You can as well on asylum.
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