Examination of Witnesses (Questions 220-239)
6 JULY 2004
DAVID LAMMY
MP AND CLARE
DODGSON
Q220 Ross Cranston: Okay, but then you
are giving some power to the courts to do it?
Mr Lammy: I disagree.
Q221 Ross Cranston: We will come back
to that if needs be; but where the judge has to make a decision,
where he says, for example, in a multi-hander, "Look, in
this case I think we only need one firm of solicitors, even though
you have got a number of defendants we need one firm". It
is much easier in terms of my analysis for the court to say that,
for the court to say, for example, where you have got a number
of defendants and you do not have a problem of a cut-throat defence
or whatever, the court says, "Look, your interests are such
that basically you are all running the same defence, you need
one representative, you do not need a whole range." It is
going to be much more difficult, I would have thought, even with
the Legal Services Commission involved, for that to be done outside
the courts?
Mr Lammy: I am not sure that that
is entirely the same point in terms of the multi-handed cases
as the granting of legal aid on the issue—
Q222 Ross Cranston: The evidence is that
these are the high cost cases and, of course, the evidence from
the department is that 1% of these Crown Court cases are taking
50% of the costs?
Mr Lammy: You will know that on
the very high cost cases on that fact/figure tremendous concern
that we will share. There is much that we are doing. You will
have seen the press over the last few weeks with our attempts,
I think successful attempts, to bring under contract, if you like,
for the first time, and I am obviously very pleased about that,
barristers and how we pay them for very high cost cases.
Q223 Ross Cranston: Congratulations on
having come to a conclusion on that!
Mr Lammy: And there are going
to be substantial savings there: well over £250 million over
four years. So I am obviously extremely pleased about the success
of that, but at the same time what you point to I think gets us
very much into the terrain of the Fundamental Legal Aid Review,
it gets us looking at the challenges of the modern criminal justice
system, where we have volume of evidence issues like CCTV, where
we have complex fraud racketeering, money laundering cases that
involve a number of defendants, these are the sorts of issues
we are going to want to look to, how many representatives does
someone need and have and what is this context within a human
rights context and our obligations there.
Q224 Ross Cranston: Let me put a couple
of more points that have been put to us. First of all, the conflict
of interest argument. The argument runs, of course, that solicitors
are in a conflict situation if they are going to be administering
a means test.
Mr Lammy: I do not see that. They
are doing it at the moment on the civil side.
Q225 Ross Cranston: But one might say—
Mr Lammy: In a sense, from my
own experience in my constituency, solicitors are always informally
telling clients across the piece whether they would or would not
get legal aid. They are always making those determinations. I
just do not see the conflict point.
Ms Dodgson: I would say that we
will have protocols, binding protocols, for how this is done.
It is being done already. We will get better management information,
so if we are seeing inconsistencies and odd things happening we
will find out, but also as professionals, professional codes of
conduct and ethics must apply and the best interests of the client;
and on the "say no" point I can give you an assurance
that the Commission has highly trained people who already say
no in some very high profile and difficult civil cases, and they
will follow the criteria and if no needs to be said that is what
we will say.
Q226 Ross Cranston: You have mentioned
consistency just a moment ago. What about the other argument put
to us by justices' clerks, who told us that there have not been
criticisms of inconsistency, the monitoring has been relatively
satisfactory. Are you not going to have more inconsistency if
the decisions are being made by all these solicitors rather than
by the courts?
Mr Lammy: I do not think so; not
when you have got . . . This will effectively be under contract.
You strike a national contract, as it were, with individuals.
There is much more accountability, much more auditing. The proximity
of the National Audit Office as well to the LSC, much more accountability,
I would have thought, than under the Court Service.
Ms Dodgson: And we will have strict
criteria and protocols for taking these decisions. We have regularly
issued guidance because there has been inconsistency, and we know
that. I visit some magistrates' courts and you talk to the clerk
and they have got the protocol there in front of them and are
following it. I go to others and it is much more vague.
Q227 Ross Cranston: That might an argument
for improving the administration of the court. It is basically
the same test, is it not? You are not changing the test?
Mr Lammy: Ross, we have had the
merits test since the Widgery criteria in, from my recollection,
1967.
Q228 Ross Cranston: We had a merit test
from 1949.
Mr Lammy: Okay. So we have had
it for a long time, and there has been heaps of guidance since
then. It is the modern criteria.
Q229 Ross Cranston: Let me put to you
the final point. It comes back to a question I asked earlier about
the estimates. What sort of estimates have you made of what will
be saved? What reduction are we going to see in the grant in terms
of the transfer from the courts? Have we made any estimates yet?
Mr Lammy: Clearly this depends
very definitely on what we end up with, and I think that it is
likely. The Government has an open mind on this. I think the models
as they are posed provide the challenging issues that we all know
around means testing, and that is around simplicity on the one
hand and fairness on the other. You have the simplicity, I think,
very definitely in the option two model, and that is indicating
a saving between 25 and 63 million depending how you cut it. You
have got the contributions coming from option three, and that
would be a saving of between 45 million and 93, and you have got
option 1, which is much closer to the old system, but issues there
that one would want to ensure were not the case around bureaucracy
and delay, and that would lead to a saving of between 27 million
and 66. The mean, as it were, if this was a composite between
them, is in or around 70 million. That is obviously hugely important
and particularly important given much that this Committee and,
indeed, I had to say on the civil side.
Ross Cranston: I do not think we disagree
in terms of giving it a go; I think we just think it is a bit
rough and ready. The figures are not exactly plucked from the
air, but I think we are a bit sceptical about them; but we will
come back to that, I am sure?
Q230 Dr Whitehead: Can I ask you some
questions about the grant determinations following the implementation
of the proposals. There does appear to be some confusion in who
realistically determines grants. The consultation paper suggests
that the LSC will delegate the authority to grant to solicitors
who have a general criminal contract in the most simple cases;
on the other hand the LSC's evidence suggests that this would
be by application and a decision would be within 24 hours, ie
the LSC itself would make the funding decision. Who is to do it,
do you think?
Mr Lammy: Clearly it is the LSC
that has the proximate role, and it enters into an arrangement
with our 2,800 contractors in terms of our solicitors.
Ms Dodgson: The accountability
will be clearly with the LSC. I am being referred to paragraph
39 of the consultation document, page 18: "In real terms
the LSC will delegate the authority to grant to solicitors with
a general criminal contract in the most simple cases." So,
as we were describing earlier on, ironically they are often the
most serious because it is quite black and white that all the
tests are met and legal aid will be allocated. Where there is
complexity that will remain with the LSC, and we need to decide
the cut off points: where does one thing go that way or that way?
We will have an in-house team that will look at those cases, turn
them round very rapidly so they will come into it electronically.
There will also be facilities for people to telephone if they
are unsure: "Should this come in or can I take this decision
myself?" The other point is for those that are delegated
from a client's point of view, the solicitor can take the decision
on the spot; and I think that is quite important as well. But
if anybody would like further clarification of the detail of that,
the Commission would be very happy to provide a note on how that
would work in practice.[1]
Q231 Chairman: That is helpful.
Mr Lammy: Clearly there will be
issues around people in custody where there will have to be a
quick turnover of those borderline difficult decisions, but the
LSC is doing that presently in domestic violence cases and some
other serious civil matters.
Q232 Dr Whitehead: So will there be a
clear point at which the authorities effectively delegate without
further reference or will there need to be reference in order
to ascertain the degree of delegation?
Ms Dodgson: There will be delegated
autonomy for particular categories of case, and we will have clear
guidance for that which we will operate and we will audit. If
there is a lack of clarity, people will be able to get advice
from experts before that decision is made; and the expert may
well say, "No, that is fine, you have got the authority to
delegate", or, "No, we need to have a look at it in
a bit more detail", and it would come up to the.
Q233 Dr Whitehead: I assume that method,
therefore, is part of the reason that the Department has estimated
that that system will cost the LSC £800,000 in the first
year and £400,000 a year subsequently.
Ms Dodgson: That is right. We
will have some infrastructure costs. We are looking to minimise
those by using technology. The world is moving on. People do business
by e-mail; people do a lot more business by telephone. We are
giving advice by telephone now and we are getting feedback, proper
evaluated feedback, that a large proportion of people prefer it.
I was reading a report yesterday where somebody said, "My
relationship has broken down. Everything is terrible. I do not
want to go and sit in an office and talk directly. I like the
anonymity and I feel able to speak more freely on the telephone."
That was one comment, but certainly that is the feedback we are
getting.
Q234 Dr Whitehead: Do you think that
the interests of justice test is perhaps going to undermine the
general greater efficiency and savings that you are suggesting
might arise from these changes? Do you think that perhaps the
interests of justice test remains with too wide an interpretation
as far as the courts are concerned?
Mr Lammy: I think I have indicated
that I think that the LSC is presently dealing with interests
of justice every day of the week on the civil side in some extremely
important cases. Ultimately these decisions are broadly made by
administrative staff within our courts and are occasionally challenged.
Where they have been challenged with the LSC and it has gone to
a funding review committee my recollection is that there is only
one case that was overturned in terms of the LSC's decision last
year. So, broadly speaking, the system works well currently on
the civil side; lawyers are engaged in that process, as you would
expect, and we ought to remember, I think in the context of our
conversation, that overwhelmingly 50% of applications granted—no,
50% of those who are charged with a criminal offences are passported
any way, they are on some sort of benefit, and I think it is up
to something like 30-35% above that again qualify for legal aid
because they are on a low income. So we are talking of a small
bracket of cases in the first instance, and I think the LSC is
well placed to make that determination because they are currently
doing it.
Q235 Dr Whitehead: The LSC is intending
to issue guidance to solicitors, is it not, to suggest how they
might apply the interests of justice test?
Ms Dodgson: Yes, we do. We issue
regular guidance and we update it regularly.
Q236 Dr Whitehead: Would it not perhaps
be clearer, as seemed to be suggested by some of our witnesses,
that that guidance might narrow the interests of justice test,
that that guidance ought to be on the face of legislation rather
than channelled through the general criminal contract?
Mr Lammy: The interests of justice
test is very much on the face of legislation. It is in schedule
3 of the Access to Justice Act. It is very firmly there, it is
well understood. We ought to remember, I think, also that many
of our legal aid firms are not just doing crime, they are working
on the civil side already; so lawyers within the practice are
already doing it.
Q237 Dr Whitehead: What I think my questions
are intending to point to is if the guidance is intending to make
that interpretation more restrictive?
Mr Lammy: No, the Interests of
Justice Act is as it is. The professional interpretation and judgment
that applies it is already being exercised now on the civil side
and we would expect same degree of rigor and professionalism when
one of these models were to come into practice on the criminal
side. There is track record there of people doing it and doing
it with integrity.
Q238 Dr Whitehead: Does the guidance
simply clarify and not restrict?
Mr Lammy: Yes.
Q239 Dr Whitehead: Do you think that
that is over and above practices, court practices which could
be, shall we saying, dealt with, is not quite the right word,
but by the use of guidance might be the subject of, I think, as
the consultation paper describes, modern management tools, and
if it could be overcome by modern management tools what exactly
are those modern management tools?
Ms Dodgson: There are a number
of things we would be able to do if one of these options were
brought in. Firstly, we would propose setting up two dedicated
process centres; so that would maximise the use of technology,
e-mail, telephones and so on. It would also allow us to make the
process more standard and get rid of some of this inconsistency
and give us some economies of scale. So whilst there are costs
to this, they have to be offset against the considerable saving
the Minister was talking about earlier on. It would also give
us more coherent access to specialist advice for complex cases
so we could have a team of experts who specialise, say, in family
or in different areas of criminal law. So somebody could specialise
in domestic violence, somebody could specialise in other areas.
It would give us better management information, the bench marking
facilities to compare what was happening out there and it would
give us a better system of performance management. We could also
invest more effectively in staff training and development because
we would have a critical mass, and I would want to draw into that
the suppliers. So the people who are taking these delegated the
decisions would be trained; they would have the guidance but it
would not just thud on their desk, we would say, "Right,
we are going to have seminars." We already do that, the Legal
Services Commission now, on the systems that we work, but this
would allow us to bring it together and give it more focus.
Mr Lammy: Ultimately, as I think
I said earlier, Clare is the senior accounting officer for legal
aid in this country and yet at present much of the scope of that
expenditure is out of her control. I think given the pressures
that there are on the budget it is important that we put this
proposal forward, and part of that proposal is that the Legal
Services Commission takeover this responsibility.
Ms Dodgson: Can I reinforce that
accounting officer point because I am accountable to Parliament
also as the accounting officer, but the people who are committing
the funds, taking the decisions, are not part of my team or my
organisation.
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